Trying Davis for treason wouldn’t have been hard to do but it wasn’t done. The reason for that is because the PTB all knew Davis did not engage in treason as it was understood in 1860. The following quote is from a speech by Lincoln in 1846.
“Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable,—most sacred right—a right, which we hope and believe, is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government, may choose to exercise it. Any portion of such people that can, may revolutionize, and make their own, of so much of the territory as they inhabit. More than this, a majority of any portion of such people may revolutionize, putting down a minority, intermingled with, or near about them, who may oppose their movement.”
Of course Lincoln sang a much different tune in 1861. My point is that the illegality of secession was not a unanimously held view before the war or even after in 1865. I think Davis stood a good chance of winning a treason trial and that is why he wasn’t charged. He wanted a trial but was denied it.
You seemed to have glossed over the part where Lincoln said,”and having the power.” Lincoln was talking about the natural right of revolution, which is what our founding fathers did in 1776. Now there’s no right to win your revolution because country’s, like people, have a natural right to self defense. You gotta have the “power”.
So Lincoln was not singing a different tune in 1860. He was singing the same tune George Washington started when he put down the Whiskey Rebellion and the tune Andrew Jackson sang when he confronted the nullification crisis of 1832.
The reason Davis wasn’t tried is because by the time the federal government got around to being able to try him the civil government in Virginia had been restored. Since the his crimes were committed in Virginia the jury pool would have had to be selected from that area. Which would have meant any jury would likely be composed of former rebels. Here is the letter from the US consul on the case to the US Attorney General explaining this.
Richard Henry Dana, Jr. letter to Attorney General W.M. Evarts
“Sir,
While preparing with yourself, before you assumed your present post, to perform the honorable duty the President had assigned to us, of conducting the trial of Jefferson Davis, you know how much my mind was moved, from the first, by doubts of the expediency of trying him at all. The reasons which prevented my presenting those doubts no longer exist, and they have so ripened into conviction that I feel it my duty to lay them before you in form, as you now hold a post of official responsibly for the proceeding.
After the most serious reflection, I cannot see any good reason why the Government should make a question whether the late civil war was treason, and whether Jefferson Davis took any part in it, and submit those questions to the decision of a petit jury of the vicinage of Richmond at “nisi prius” [”court of original jurisdiction”].
As the Constitution in terms settles the fact that our republic is a state against which treason may be committed, the only constitutional question attending the late war was whether a levying of war against the United States which would otherwise be treason, is relieved of that character by the fact that it took the form of secession from the Union by state authority. In other words the legal issue was, whether secession by a State is a right, making an act legal and obligatory upon the nation which would otherwise have been treason.
This issue I suppose to have been settled by the action of every department of the Government, by the action of the people itself, and by those events which are definitive in the affairs of men.
The Supreme Court in the Prize Cases held, by happily a unanimous opinion, that acts of the States, whether secession ordinances, or in whatever form cast, could not be brought into the cases, as justifications for the war, and had no legal effect on the character of the war, or on the political status of territory or persons or property, and that the line of enemy’s territory was a question of fact, depending upon the line of bayonets of an actual war. The rule in the Prize Cases has been steadily followed in the Supreme Court since, and in the Circuit Courts, without an intimation of a doubt. That the law making and executive departments have treated this secession and war as treason, is a matter of history, as well as is the action of the people in the highest sanction of war.”
“It cannot be doubted that the Circuit Court at the trial will instruct the jury, in conformity with these decisions, that the late attempt to establish and sustain by war an independent empire within the United States was treason. The only question of fact submitted to the Jury will be whether Jefferson Davis took any part in the war. As it is one of the great facts of history that he was its head, civil and military, why should we desire to make a question of it and refer its decision to a jury, with power to find in the negative or affirmative, or to disagree? It is not an appropriate question for the decision of a jury; certainly it is not a fact which a Government should, without great cause, give a jury a chance to ignore.
We know that these indictments are to be tried in what was for five years enemy’s territory, which is not yet restored to the exercise of all its political functions, and where the fires are not extinct. We know that it only requires one dissentient juror to defeat the Government and give Jefferson Davis and his favorers a triumph. Now, is not such a result one which we must include in our calculation of possibilities? Whatever modes may be legally adopted to draw a jury, or to purge it, and whatever the influence of the court or of counsel, we know that a vavorer of treason may get upon the jury. But that is not necessary. A fear of personal violence or social ostracism may be enough to induce one man to withhold his assent from the verdict, especially as be need not come forward personally, nor give a reason, even in the jury-room.
This possible result would be most humiliating to the Government and people of this country, and none the less so from the fact that it would be absurd. The Government would be stopped in its judicial course because it could neither assume nor judicially determine that Jefferson Davis took part in the late civil war. Such a result would also bring into doubt the adequacy of our penal system to deal with such cases as this.
If it were important to secure a verdict as a means of punishing the defendant, the question would present itself differently. But it would be beneath the dignity of the Government and of the issue, to inflict upon him a minor punishment; and, as to a sentence of death, I am sure that, after this lapse of time and after all that has occurred in the interval, the people of the United States would not desire to see it enforced.
In fine, after the fullest consideration, it seems to me that, by pursuing the trial, the Government can get only a re-affirmation by a Circuit Court at “nisi prius” of a rule of public law settled for this country in every way in which such a matter can be settled, only giving to a jury drawn from the region of the rebellion a chance to disregard the law when announced. It gives that jury a like opportunity to ignore the fact that Jefferson Davis took any part in the late civil war. And one man upon the jury can secure these results. The risks of such absurd and discreditable issues of a great state trial are assumed for the sake of a verdict which, if obtained, will settle nothing in law or national practice not now settled, and nothing in fact not now history, while no judgment rendered thereon do we think will be ever executed.
Besides these reasons, and perhaps because of them, I think that the public interest in the trial has ceased among the most earnest and loyal citizens.
If your views and those of the President should be in favor of proceeding with the trial, I am confident that I can do my duty as counsel, to the utmost of my ability and with all zeal. For my doubts are not what the verdict ought to be. On the contrary, I should feel all the more strongly, if the trial is begun, the importance of a victory to the Government, and the necessity of putting forth all powers and using all lawful means to secure it. Still, I feel it my duty to say that if the President should judge otherwise, my position in the cause is at his disposal.”
Lincoln’s let them up easy policy, and his selection of Andrew Johnon as VP, are my two biggest disagreements with him. If I had been President I would have had all rebel leaders tried by military tribunal and then hung by the neck until dead.
Lincoln is talking about the right of revolution in that quote. Not the made up legal “secession” the southern rebels claimed was hidden in the constitution.
Notice it says “having the power”. Not any people anywhere can just claim independence from their existing government and that existing government has to let them go.
And yes secession was treason. The Supreme Court already had declared in three Supreme Court Cases that the constitution was ratified by the people m, not the states, and could only be undone by all the people, no subset of the people. The earliest decisions by the Supreme Court proclaiming this was in Chisholm vs Georgia 1793, just five years after the ratification of the constitution. It said this;
“It is remarkable that, in establishing it, the people exercised their own rights, and their own proper sovereignty, and, conscious of the plenitude of it, they declared with becoming dignity, “We the people of the United States, do ordain and establish this Constitution.” Here we see the people acting as sovereigns of the whole country, and, in the language of sovereignty, establishing a Constitution by which it was their will that the State governments should be bound, and to which the State Constitutions should be made to conform.”
In other words the people, as a whole, made the constitution and bound the states to it.
Also a President, when faced with the threat of secession, had already set the precedent thirty years earlier in his nullification proclamation.
“This, then, is the position in which we stand. A small majority of the citizens of one State in the Union have elected delegates to a State convention; that convention has ordained that all the revenue laws of the United States must be repealed, or that they are no longer a member of the Union. The governor of that State has recommended to the legislature the raising of an army to carry the secession into effect, and that he may be empowered to give clearances to vessels in the name of the State. No act of violent opposition to the laws has yet been committed, but such a state of things is hourly apprehended, and it is the intent of this instrument to PROCLAIM, not only that the duty imposed on me by the Constitution, ‘` to take care that the laws be faithfully executed,” shall be performed to the extent of the powers already vested in me by law or of such others as the wisdom of Congress shall devise and Entrust to me for that purpose; but to warn the citizens of South Carolina, who have been deluded into an opposition to the laws, of the danger they will incur by obedience to the illegal and disorganizing ordinance of the convention-to exhort those who have refused to support it to persevere in their determination to uphold the Constitution and laws of their country, and to point out to all the perilous situation into which the good people of that State have been led, and that the course they are urged to pursue is one of ruin and disgrace to the very State whose rights they affect to support.”
“The laws of the United States must be executed. I have no discretionary power on the subject-my duty is emphatically pronounced in the Constitution. Those who told you that you might peaceably prevent their execution, deceived you-they could not have been deceived themselves. They know that a forcible opposition could alone prevent the execution of the laws, and they know that such opposition must be repelled. Their object is disunion, hut be not deceived by names; disunion, by armed force, is TREASON.“
Andrew Jackson 1832
This is the precedent that both Buchanan and Lincoln followed when dealing with the “secessionist” in 1860-1865.
The southern rebels should have been under no delusion that “secession” was legal or allowed.