Posted on 06/12/2003 5:58:28 AM PDT by Aurelius
Over the years I've heard many rail at the South for seceding from the 'glorious Union.' They claim that Jeff Davis and all Southerners were really nothing but traitors - and some of these people were born and raised in the South and should know better, but don't, thanks to their government school 'education.'
Frank Conner, in his excellent book The South Under Siege 1830-2000 deals in some detail with the question of Davis' alleged 'treason.' In referring to the Northern leaders he noted: "They believed the most logical means of justifying the North's war would be to have the federal government convict Davis of treason against the United States. Such a conviction must presuppose that the Confederate States could not have seceded from the Union; so convicting Davis would validate the war and make it morally legitimate."
Although this was the way the federal government planned to proceed, that prolific South-hater, Thaddeus Stevens, couldn't keep his mouth shut and he let the cat out of the bag. Stevens said: "The Southerners should be treated as a conquered alien enemy...This can be done without violence to the established principles only on the theory that the Southern states were severed from the Union and were an independent government de facto and an alien enemy to be dealt with according to the laws of war...No reform can be effected in the Southern States if they have never left the Union..." And, although he did not plainly say it, what Stevens really desired was that the Christian culture of the Old South be 'reformed' into something more compatible with his beliefs. No matter how you look at it, the feds tried to have it both ways - they claimed the South was in rebellion and had never been out of the Union, but then it had to do certain things to 'get back' into the Union it had never been out of. Strange, is it not, that the 'history' books never seem to pick up on this?
At any rate, the Northern government prepared to try President Davis for treason while it had him in prison. Mr. Conner has observed that: "The War Department presented its evidence for a treason trial against Davis to a famed jurist, Francis Lieber, for his analysis. Lieber pronounced 'Davis will not be found guilty and we shall stand there completely beaten'." According to Mr. Conner, U.S. Attorney General James Speed appointed a renowned attorney, John J. Clifford, as his chief prosecutor. Clifford, after studying the government's evidence against Davis, withdrew from the case. He said he had 'grave doubts' about it. Not to be undone, Speed then appointed Richard Henry Dana, a prominent maritime lawyer, to the case. Mr. Dana also withdrew. He said basically, that as long as the North had won a military victory over the South, they should just be satisfied with that. In other words - "you won the war, boys, so don't push your luck beyond that."
Mr. Conner tells us that: "In 1866 President Johnson appointed a new U.S. attorney general, Henry Stanburg. But Stanburg wouldn't touch the case either. Thus had spoken the North's best and brightest jurists re the legitimacy of the War of Northern Aggression - even though the Jefferson Davis case offered blinding fame to the prosecutor who could prove that the South had seceded unconstitutionally." None of these bright lights from the North would touch this case with a ten-foot pole. It's not that they were dumb, in fact the reverse is true. These men knew a dead horse when they saw it and were not about to climb aboard and attempt to ride it across the treacherous stream of illegal secession. They knew better. In fact, a Northerner from New York, Charles O'Connor, became the legal counsel for Jeff Davis - without charge. That, plus the celebrity jurists from the North that refused to touch the case, told the federal government that they really had no case against Davis or secession and that Davis was merely being held as a political prisoner.
Author Richard Street, writing in The Civil War back in the 1950s said exactly the same thing. Referring to Jeff Davis, Street wrote: "He was imprisoned after the war, was never brought to trial. The North didn't dare give him a trial, knowing that a trial would establish that secession was not unconstitutional, that there had been no 'rebellion' and that the South had got a raw deal." At one point the government intimated that it would be willing to offer Davis a pardon, should he ask for one. Davis refused that and he demanded that the government either give him a pardon or give him a trial, or admit that they had dealt unjustly with him. Mr. Street said: "He died 'unpardoned' by a government that was leery of giving him a public hearing." If Davis was as guilty as they claimed, why no trial???
Had the federal government had any possible chance to convict Davis and therefore declare secession unconstitutional they would have done so in a New York minute. The fact that they diddled around and finally released him without benefit of the trial he wanted proves that the North had no real case against secession. Over 600,000 boys, both North and South, were killed or maimed so the North could fight a war of conquest over something that the South did that was neither illegal or wrong. Yet they claim the moral high ground because the 'freed' the slaves, a farce at best.
Quote them.
“We begin our analysis with the use of martial law in contested territory, whether in the border states or the South. Such use of martial law was not unprecedented. During the American revolution, the Continental Congress reacted to threatened British attacks in Pennsylvania and Delaware by authorizing a form of martial law: “[W]hereas, principles of policy and self-preservation require all persons who may be reasonably suspected of aiding or abetting the cause of the enemy may be prevented from pursuing measures injurious to the public weal,” Congress authorized state governors to arrest and confine disloyal residents. Similarly, General Jackson imposed martial law in New Orleans when the city was threatened by the British during the war of 1812. He took martial law to extraordinary lengths, expelling the French consul (though France was a friendly power), arresting the author of a letter to the editor for repeating rumors that peace had arrived (which turned out to be true), and ultimately arresting a federal judge and district attorney for interfering with these actions.
In a third pre-civil war instance of martial law, the issue ultimately reached the Supreme Court. In Luther v. Borden, the Supreme Court resoundingly upheld the use of martial law, in an opinion by none other than Chief Justice Taney. The case involved a dispute over the legitimacy of the state government in Rhode Island, a dispute that had been resolved in favor of the existing government. In putting down an effort to displace the government by a rival group, the governor had declared martial law. “[U]nquestionably,” Taney pronounced, “a State may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority.” The power to do so “is essential to the existence of every government, essential to the preservation of order and free institutions, and is necessary to the State of this Union as to any other government.” “Thus “[I]f the government of Rhode Island deemed the armed opposition so formidable, and so ramified throughout the State, as to require the use of military force and the declaration of martial law, we see no ground upon which this court can question its authority.” The case involved “a state of war, and the established government rights and useages of war to maintain itself, and to overcome unlawful opposition.” Hence, the military could arrest suspected supporters of the insurrection and could break into houses where such individuals might be hidden, all without a warrant. Without power to do this, martial law and the military array of the government would be mere parade, and rather encourage attack rather than repel it.”
...Luther was later strongly reaffirmed in Justice Holmes’s opinion in Moyer v. Peabody. In response to a violent miner’s strike, the governor had declared the affected county to be in a state of insurrection and called out the national guard. He arrested the union’s president and held him for several months without trial. Justice Holmes saw no constitutional difficulty. “Of course,” Holmes said, the “plaintiff’s position is that he had been deprived of his liberty without due process of law.” But due process depends on the circumstances. Under federal law, the governor was authorized to call out the national guard in response to invasion or insurrection.”That means that he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace.”
-- Lincoln’s Constitution” pp 148-49 by Daniel Farber
“In any event, if prior congressional authorization was needed, it probably did exist. In the special secession called by Lincoln, Congress ratified all of his orders relating to the militia or armed forces. Since Lincoln’s suspension directive took the form of an authorization to General Scott, this may well have ratified at least past suspension in cases like Merryman. But, even before the special session, Lincoln already probably had whatever congressional authorization he needed, at least for the initial emergency suspension in Merryman. This source of authority was the militia act. This theory was adopted in Ex parte Field, where the federal circuit held that the statutes empowering Lincoln to call out the militia also implicitly authorized him to declare martial law and hence to suspend habeas.”
Ibid, p 162
Walt
None of that means squat. See the Prize Cases ruling.
Walt
But as the majority opinion noted, the entire executive power rests with the president.
President Lincoln did not -have- to call a special session. He called Congress in 4 months early at least, before it was scheduled to meet.
You neo-confederates, in your haste to smear President Lincoln, would take him to task for not calling Congress faster than he did.
You should contemplate a time when he had NO intention of calling the new Congress early -- in 1865. Some members of that Congress had blood in their eye, and he meant to forestall them.
When President Lincoln met with Sherman and Grant early in April, 1865, he urged them to go easy with the soon to be surrendered rebel armies in their fronts, and they did. He expected to have many of the difficulties with establishing the rebel states back in their proper relation with the national government ironed out by December, when the new Congress would meet. He probably would have too, but he was called away.
What it really comes down to, as always, is "mean old Lincoln kicked our butts!"
You can't let the facts or a reasonable interpretation get in the way of smearing a great and good man.
Walt
LOL - I would have to agree. He was a strange man, many today despise him.
I agree my friend, but the DIMS just can't understand it. We must still be operating under the Articles in their view.
Punishment ex post facto is unconstitutional. Jefferson Davis renounced his US citizenship by remaining with his state - his US citizenship derived from it once being part of the union. When it left, Davis went with it. No treason, and the government knew it. Davis WANTED a trial to PROVE his innocence of that charge. The government was a yellow-bellied, gutless chicken.
Yes. In fact, I apologized to Walt yesterday re: the dissent in the Prize Cases.
The Radical Republicans were few in number and had hardly any influence at all until nearly two years after the Civil War ended ...
You need to read The Logic of History by Stephen Carpenter (a Northen editor). He blows that myth out of the water.
But then Chief Justice Chase offered the loophole of the 14th Amendment to jump through. If Davis' lawyers were so sure that he would be acquitted then why did they unanimously urge him to take the out that the Chief Justice proposed?
You are operating on the erronious opinion that the defeat of the Central Powers in WWI was a good thing. If Wilson had kept his promise to keep America out of the war - and possibly engaged in "shuttle diplomacy" to end the war, the great "..isms" of Europe may never have taken hold. WWI was the most stupid war in history and the so called victory merely planted the seeds for WWII.
Do you think that a court with a majority of southern justices could have issued an impartial decision on secession?
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