Posted on 10/09/2002 12:31:28 AM PDT by GOPcapitalist
As you may know, the Claremonsters launched their latest and probably most widespread attack on Thomas DiLorenzo's "The Real Lincoln" this week with an article in National Review by Ken Masugi. The article follows the same line taken by the two previous Claremonsters tasked with smearing DiLorenzo by the Abratollah Jaffa - Tom Krannawitter and Richard Ferrier. Rather than appearing on the Claremont or Declaration Foundation websites like the previous attacks, this one made it into a more mainstream conservative publication. I read the review today in the new issue of NR and immediately experienced a sense of disgust that the publication would print such poorly written bilge. To critique DiLorenzo's book is one thing, but Masugi's article is little more than intellectually bankrupt rhetoric. Compared to the old days of NR when Frank Meyer took Lincoln to task and even when the Abratollah actually fought his battles himself, the lack of quality in the present piece is shocking and in need of address. A dissection and rebuttal of the latest and most prominent Claremonster attack on DiLorenzo's book is therefore in order. Excerpts from the NR article are printed in bold:
I. "Fortunately we are not dependent on DiLorenzo for an understanding of Lincoln's political philosophy; Lincoln himself summarized it in the Gettysburg Address and Second Inaugural. For Lincoln, the preservation of equality of natural rights demands a strong government, but one limited in its powers. This founding principle leads politically to the need for consent of the governed, the basis of our republican government."
Contrary to Masugi's assertions, the Gettysburg Address and Second Inaugural were not reflections of Lincoln's political philosophy but rather his rhetorical gifts. Above all, Lincoln was a pragmatic politician who played the games of politics with amazing skill and frequency. His asserted devotion to a government "of the people, by the people, for the people" in the Gettysburg speech makes a brilliant rhetorical point, but does not reflect Lincoln's own political behavior in any sense. Lincoln went to war to prevent the formation of a government by a clear majority of the southern people and imposed military reign in its place upon conquest of that region. Such behavior further makes Masugi's claim that Lincoln's political philosophy revolved around principles of "the need for consent of the governed" absurd.
Lincoln did advocate and exercise his power in a strong government, but the limits in its power that Masugi speaks of were severely lacking. One such case happened famously in Lincoln's shunning of a court ruling contrary to his assumed and unconstitutional unilateral suspension of habeas corpus. Following the violation of citizen's equal rights before the law in Maryland, Justice Roger Taney authored the opinion of Ex Parte Merryman for the US Circuit Court and had a copy hand delivered to Lincoln himself. Lincoln shunned the decision, though the court in its proper role had exercised a perfectly legitimate and constitutionally sound limitation on government powers exercised through the executive and military. The incident is but a single of many virtually unrestrained exercises of power by Lincoln during his administration.
II. "DiLorenzo then complains of the war measures Lincoln took after secession: military tribunals, restrictions on civil liberties, and the suppression of newspapers. But he doesn't mention the South's suppression of discussion about abolition"
In this complaint Masugi commits a fallacious line of argument, and perhaps intentionally. He notes DiLorenzo's complaint with Lincoln, responds with the assertion that the south "did it too," and moves on as if the issue has been settled while simultaneously criticizing DiLorenzo for failing to write about the South's shortcomings. Only one problem - DiLorenzo's book was never about the South's shortcomings and never sought to take up that issue in the first place. It was about Lincoln though, and despite Masugi's best efforts to divert attention away from the validity of DiLorenzo's complaints with Lincoln, they remain unaddressed in his supposed critique. Yet again, DiLorenzo's argument remains unaddressed by Masugi.
III. "DiLorenzo also contends that Lincoln violated international law in his "savage" conduct of the war. Not once does DiLorenzo entertain the thought that a disunited America might have become prey for the designs of European imperial powers, which would have put an end to the experiment in self-government"
Masugi employs a clear and apparently intentional distraction tactic to divert attention away from DiLorenzo's original argument - war crimes under Lincoln's command. Notice that his "response" to DiLorenzo on the issue is a wholly unrelated reference to fears of European imperialism in North America - an issue that has very little if anything to do with DiLorenzo's commentary about war crimes and fails to address it in any significant way.
IV. "And for the destruction caused by Sherman's march through Georgia, historian Victor Davis Hanson has observed: 'It is a hard thing for contemporary liberalism to envision war as not always evil, but as sometimes very necessary - and very necessarily brutal if great evil is to disappear.'"
Masugi's comment here comes as if an arbitrary rhetorical expression constitutes enough to dismiss a factually formulated argument. It doesn't, and Masugi's chosen quote conveys little more than excuse making of an "ends justify means" variety. By implication of his quote, Masugi seems to be attempting to cast DiLorenzo's critique of Lincoln's style of warfare as a view of "contemporary liberalism." Nothing could be further from the truth, as the distinction of justly waged war and unjustly waged war comes directly from traditional conservative Christian moral absolutism, not modern liberalism.
Thomas Aquinas, a famed Christian philosopher and ethicist of the scholastic age, set forth the qualifications of a morally waged war. Aquinas reasoned that a war may be justly waged when three conditions are met: that of sovereign authority to do so, that of a just cause for its being waged, and thirdly "it is necessary that the belligerents should have a rightful intention, so that they intend the advancement of good, or the avoidance of evil" Aquinas cites St. Augustine in giving examples of the wicked waging of war: "The passion for inflicting harm, the cruel thirst for vengeance, an unpacific and relentless spirit, the fever of revolt, the lust of power, and such like things, all these are rightly condemned in war." Many such elements, including drives for vengeance and harm and the lust for power exhibited their ugly heads in the brand of warfare waged against civilians by northern troops.
Even if one believes that the North had fought for the just end of freeing the slaves (it did not do so according to no less a source than Lincoln himself), and even if the North's war was waged duly under proper authority, its immoral waging renders the war unjust. Aquinas states this clearly in his writings: "For it may happen that the war is declared by the legitimate authority, and for a just cause, and yet be rendered unlawful through a wicked intention." DiLorenzo also readily admits in his book that had the war been waged to free the slaves, had it been properly conducted, and had it been waged in a moral way, it would have been justified. His argument, which he supports by citing the rampant Northern war crimes, demonstrates that this was simply not the case, therefore making the North's waging of war unjust and immoral. Yet again, this argument of DiLorenzo remains unaddressed by Masugi.
V. "But why would Lincoln indulge in these criminal actions? Since he was a racist and had no great interest in freeing the slaves, DiLorenzo concludes, his "real agenda" must have been the imposition of a "mercantilist/Whig" high tariff economic system"
Masugi's assertion here is a clear case of scarecrow construction, but first let us examine the conclusions he attributes to DiLorenzo but apparently disputes himself. The fact of Lincoln's racism (racism being defined by the belief that a certain skin color instills qualifies conditions of superiority in that skin color over another) is thoroughly supported by Lincoln's statements. Among them are the following:
"I have no purpose to introduce political and social equality between the white and the black races. There is a physical difference between the two, which in my judgment will probably forever forbid their living together upon the footing of perfect equality, and inasmuch as it becomes a necessity that there must be a difference, I, as well as Judge Douglas, am in favor of the race to which I belong, having the superior position." - Lincoln at Ottowa, August 21, 1858Next we may turn to Lincoln's position on the issue of freeing the slaves. I have recognized many times before that Lincoln very clearly had a passive moral opposition to slavery. Politically, he took a fairly firm stance in opposition to its expansion into the territories. Beyond that, Lincoln played politics, which led him to adopt positions opposed to the abolition of slavery and even engage in efforts to prolong the institution's existence. One such case of the latter came in 1861 when Lincoln endorsed - in his inaugural address of all places - a recently passed constitutional amendment that stated"Negro equality! Fudge!! How long, in the government of a God, great enough to make and maintain this Universe, shall there continue knaves to vend, and fools to gulp, so low a piece of demagoguism as this?" - Lincoln, speech fragments, circa 1859
"No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State."The measure would have effectively prevented any future amendment abolishing slavery, likely extending the institution years if not decades beyond what would otherwise have been its fate had the measure been ratified. Lincoln's involvement in this constitutional amendment extended far beyond simply endorsing it though. Lincoln himself was the motivation behind its introduction in committee several months earlier, as is indicated by the senator who introduced it, William Seward. Following the proposal's introduction, Seward wrote to Lincoln to inform him of his actions stating "I offered three propositions which seemed to me to cover the ground of the suggestion made by you, through Mr. Weed, as I understand it." In other words, Seward introduced the measure after being informed of it by Thurlow Weed, who conveyed it as a message from Lincoln, who he met with in Springfield a few days earlier. When the amendment passed Congress two months later on the eve of Lincoln's inauguration, his support of the measure was further cited as the main reason for its success. Eyewitness Henry Adams wrote of the event, "some careful manipulation, as well as the direct influence of the new President, was needed before this measure...could be passed."
Having exposed the error in these assumptions about Lincoln that had been contradicted by DiLorenzo though denied by the Claremonsters, we may now turn to Masugi's argument in this statement. In the simplest of terms Masugi is asserting that, holding the other two assertions to be true, DiLorenzo concludes by default that Lincoln's real motivation was the Whig economic agenda. This assertion is a straw man, as DiLorenzo's argument on Lincoln's economic beliefs is based upon Lincoln's espousal of those beliefs throughout his career - not some random conclusion that since it wasn't X and Y, it must by default be Z. Extensive passages of DiLorenzo's book are devoted to Lincoln's career as a proponent of protectionism, and Lincoln's own words right up to the war indicate he held this belief strongly:
"I was an old Henry Clay tariff whig. In old times I made more speeches on that subject, than on any other. I have not since changed my views." - Lincoln to Edward Wallace, October 11, 1859Lincoln espoused his tariff views strongly in a speech given only weeks before of his inauguration. It pertained to the Morrill tariff bill, which had long since passed the House and was up for debate in the Senate. In the plainest of language and on the eve of the war, Lincoln told his audience that the tariff, which the South vehemently opposed, was a top priority:
"According to my political education, I am inclined to believe that the people in the various sections of the country should have their own views carried out through their representatives in Congress, and if the consideration of the Tariff bill should be postponed until the next session of the National Legislature, no subject should engage your representatives more closely than that of a tariff."- Lincoln at Pittsburgh, February 15, 1861VI. "The South's call for low tariffs became a demand for preserving an agricultural economy based on slavery. To view the conflict between North and South as primarily one of two incompatible economic systems obscures the central place of slavery."
Masugi fails to substantiate his first assertion and proceeds as if it were fact upon his statement. In reality, common sense economics dictate that Southern opposition to the tariff stemmed from the economic detriments incurred by the South by the presence of protectionist industrial tariffs. A protectionist tariff functions by raising the price of a foreign import by way of the tax imposed upon it. When raised by a tariff, a comparatively cheap foreign good's price may become equal to or higher than an otherwise more expensive but protected domestically produced substitute. Accordingly the market shifts to favor the protected domestic good, which is, thanks to the tariff, the cheaper of the two. That domestic good will still cost more than the foreign substitute absent the tariff, therefore persons who stand to gain from the presence of a cheaper foreign good will oppose the tariff while the protected industries will support it. That is exactly what the South faced in 1861. Tariffs benefited northern industries by shifting the market to them and denying persons outside of the northern industries the benefits of free trade.
Masugi's second assertion is itself ironic, as it better applies to his own position when flipped than to any tariff-oriented argument - To view the conflict between North and South as one of slavery and virtually nothing else, as Masugi does, obscures the complexity of the conflict itself by denying even the simplest consideration of any factor beyond that narrow pre-set parameter. To be sure, reducing the entirety of the war to a tariff difference is not without its own fallacy, but just as much if not more is true of slavery reductionism, and the latter is firmly adhered to as an immovable doctrine by many in the Claremonster school. Rather than objecting to attempts of another to interpret the conflict as exclusively economic, they seem to object to any interpretation of the conflict that is not exclusively slavery.
VII. "Progressivism was based on the same historical-evolutionary brand of thought, dating back to Rousseau, that justified black slavery as the cornerstone of Confederate civilization. And Progressivism begat modern megastate liberalism."
Masugi's argument in this case, that leftism emerged out of the same strain of thought as the confederacy, is not only bizarre but wholly unsubstantiated in his article. He simply asserts it to be so, accepts his self-assertion as fact, and moves on as if it were the case. The entirety of his statement may be rejected as quickly as the whim in which it was made. Quod gratis asseritur gratis negatur.
If one does, however, investigate this assertion further, its falsehoods are similarly evident. Masugi's assertion is presumably based upon the writings of the Abratollah, which basically attempt to force a bizarre theory on the evolution of liberalism from John C. Calhoun to the Confederacy to both Adolph Hitler and modern leftism. Jaffa's attempted connection is uneasy, if not wholly unsubstantiated. Any honest examination of the political evolution that led to Hitler and National Socialism traces its origins to the synthesis of Germanic nationalism and Hegelian Marxism by a group of relatively obscure far-left political philosophers who wrote in Germany during the first world war. All of these writers were direct products of various communist movements drawn upon what their writings asserted, Marx und Hegel. The theory of national socialism, as with its counterpart theory of socialism that still dominates modern leftism, emerged heavily out of the life breathed into it by Karl Marx and his successors. As evidenced by the writings of Marx himself, the marxist movement's interpretation of the War Between the States has been thoroughly aligned with the North, not the South, since the very first shot was fired in 1861. They saw the Northern cause, albeit through shaded glasses, as being purely a struggle of liberation for the working man and sung praises of that which came out of it under Lincoln's guidance. Marx himself expressed this interpretation in a letter to Lincoln in 1864:
"The workingmen of Europe feel sure that, as the American War of Independence initiated a new era of ascendancy for the middle class, so the American Antislavery War will do for the working classes. They consider it an earnest of the epoch to come that it fell to the lot of Abraham Lincoln, the single-minded son of the working class, to lead his country through the matchless struggle for the rescue of an enchained race and the reconstruction of a social world." - Marx, November 29, 1864Contrary to Masugi's interpretation, Marx, in the plainest of terms, saw his leftist cause advanced into a new stage of historical evolution by the Northern victory over the Confederacy he detested and spent his time attacking throughout the war.
VIII. "Some libertarians would not see a paradox in a liberty to own slaves and thus to enslave oneself: This is precisely DiLorenzo's position stripped of all its pretensions"
This attempt to characterize a position of DiLorenzo is yet another unsupported assertion of Masugi's, made on a whim and inserted as if it were so by its very presence alone. Masugi offers no evidence though that anything of DiLorenzo's even remotely approaches that position. Any honest reading of The Real Lincoln recognizes that, when applicable, DiLorenzo is harshly critical of slavery itself as an institution and even acknowledges that fighting a war to end it could be justice, if it were truly the reason for that war. This however was not the case with Lincoln.
IX. "Others on the right, such as Russell Kirk, Robert Bork, and Robert Kraynak have criticized the Declaration for being French, nihilistic, or irreligious."
Masugi's assertion here is aimed at a branch of conservatives who have taken Constitution-oriented views of proper American government, citing the Declaration as an important however somewhat problematic document. The Abratollah and his followers tend to hold otherwise, forwarding an argument that orients American government around the Declaration and asserts the document to have been perfected by the ideals embodied in Abraham Lincoln. In actuality, the major traditional conservative criticism of the DoI relates to its thoroughly Lockean philosophical base. Instead they turn to the much more solid and traditional philosophical bases found elsewhere in the founding documents. The Jaffa school has instead long tried to reconcile and rectify the Lockean problem, often through Lincoln as mentioned above. As a side note, for those who wonder what problems Locke, a figure frequently embraced by many conservatives, presents - read the logical fulfillment of his ideas as expressed in David Hume's Enquiry. From there it will become fairly obvious how post-modern leftism emerged in later centuries and the empiricist predecessors out of which it stems.
X. "But in two magnificent works, Crisis of the House Divided and A New Birth of Freedom, Harry V. Jaffa captured Lincoln's teaching about our founding principles. Jaffa demonstrated how tradition, majoritarianism, revelation, and latter-day states' rights arguments cannot provide for liberty, human excellence, and republican limited government as well as the natural-rights teaching of the Declaration as sublimely articulated by Abraham Lincoln"
In this concluding sentence, Masugi inadvertently concedes what this is really all about - a combination plug for the Abratollah's books and an intellectually light weight trashing of a major opposition, found in DiLorenzo. At least this statement of Masugi's is consistent with the rest of his book "review" - it consists of nothing more than a blind assertion of whim. Nowhere does Masugi bother to explain how Jaffa "demonstrated" all the things he alleges, nor does he even elaborate upon them. He simply asserts them to be true. The conclusion gives an appearance of an intention that the reader, at this point, to accept the Abratollah's word on faith, conclude the error of contrary positions by default, and join the Claremonster in its practice of genuflecting toward their worldly leader, his secular deity of Lincoln, and the glorious concept of "The Union" embodied in all three. As with all false gods though, their fraudulence is immediately revealed by exposure to a simple dose of truth and common sense.
Not really, though I do have confidence in my arguments, which is perfectly fair in debate. If you disagree with those arguments, you are perfectly free to make your case, to which I will do my best to respond. But vague generalized allegations about my own treatment of my arguments are not responses to them, are they?
Lincoln wanted to maintain the idea that the union had not been broken. The mails, forts, courts and import taxes were virtually the only ways the goverment acted in those days
No, not really, Even as early as 1850 the government had already embarked heavily into the realm of subsidization, internal speding projects and the sort.
hence the symbolic importance of the pretence that the government could still collect tariffs. That argument would be fine, but the treatment afforded to tariff collection by Lincoln was significantly greater than a symbolic stance along side other similar government functions. It was a focus of his concern both publicly, where he made the symbolic case, and also privately in his personal correspondence.
-- his deliberately reading a passage from the Lincoln-Douglas debates out of context to convey the opposite of what Lincoln intended --
I'm of the understanding that DiLorenzo has long conceded that passage as an error and has actively taken steps to correct it in future editions, so I don't see how it could be some "deliberate" distortion scheme of his. More likely it's a single simple mistake not unlike isolated mistakes found in any given book of reasonable length.
J.F. Epperson has also done a good job tracking down DiLorenzo's factual errors, distortions of interpretation, and shoddy scholarship.
I am very familiar with that link, though I must protest your characterization of his analysis. It is among the sloppiest of the DiLorenzo critiques out there. A while back when he first posted it on his site, I critiqued his complaints myself for factual accuracy. It'll take some digging on FR to find my post, but I can safely say that there are multiple clear cut factual errors in Epperson's list.
Your view of the beginning of the war is too clean and rationalistic. It ignores the panic of the time and the rhetoric of conquest indulged in by secessionist leaders. It also ignores the fact that the Confederates began the war and intended to gain territory by doing so.
I don't believe that subject has been raised, in which case it is difficult for you to know how it fits into my argument. For the present, I need only note that those who advocated expansion and conquest were by and large overruled within the confederate leadership during the early days of the war. Davis himself overruled a proposal to invade Washington after the victory at Manassas, for example. The plans never got off the ground.
Begin a war and then say, "we just want to be left alone," and it's likely that others won't take your words seriously.
Davis had been saying "we just want ot be left alone" since January. He only fired on Sumter when Lincoln provoked it by sending his fleet.
That "we just want to be left alone" is more an excuse concocted for the defeated Confederacy than the real spirit of 1861.
Then why does it appear repeatedly in the writings and speeches of Confederate leaders during the 1860-61 winter when secession was actually taking place?
Sherman's destructive war on Confederate property was unfortunate to those who suffered from it, but it was a war on property not a brutal war on civilian lives.
The civilians who were executed on orders from Sherman's commanders would likely disagree with you.
You have denied that this matters, but you've said nothing to convince me.
Nor should I expect any different. A relativist will tend to find absolutist positions unconvincing no matter the reasoning behind them.
Then why were they tried as traitors?
Ping to the Constitution!
It's the reason there was never a trail.
You can't show that in the record.
Lee, Davis and in fact every soldier in the army of the so-called CSA met the treason definiton ---in-- the Constitution.
What you learned at your mamie's knee doesn't matter, but consider:
From the ACW moderated newsgroup; not written by me.
"The issue about trying Jefferson Davis, Alexander Stephens and other political leaders of the Confederacy for treason was a complex one.
There were two reasons for not doing trying them: first was the feeling that a trial, if successful, would have created a martyr. In 1865, Jefferson Davis' trial would probably been applauded by most Confederates! But the exaggerated rumors of his mistreatment by Nelson Miles while Davis was held at Fortress Monroe changed the image of Davis among white Southerners from a hated incompetent to a martyr to the Lost Cause.
Carl Schurz commented on this in a speech in the Senate: "There is not a single example of such magnanimity in the history of the world," declared Carl, "and it may be truly said that in acting as it did, this Republic was a century ahead of its time."
Early Twentieth Century American historian James Ford Rhodes wrote, "With a just feeling of pride may we honour the officials and citizens, the Republicans and the Democrats, who contributed to this grand result. For assuredly it was a sublime thing that, despite the contentious partisanship of the time, men bitterly opposed on almost every other question, could agree that the highest wisdom demanded that Davis be released from prison and that he be not punished or even tried; that those in control recognized what had hitherto been so little appreciated 'that the grass soon grows over blood shed upon the battle field, but never over blood shed upon the scaffold.'"
That said, there was another and, I suspect, equally potent issue. It had nothing to do with the number of Republicans on the Supreme Court or with long term thinking on the impact of executing ex-Confederates for treason. Instead it had to do with the United States Constitution's very restrictive clause on what constitutes treason and, even more important, where and how charges of treason must be tried: Article III, Section 2 provides "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed," and Section 3 states "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason." The Constitutional Convention had deliberately made it difficult to convict someone of treason, because of fears of abuse. In addition, Chief Justice John Marshall, sitting as a district court judge in Richmond (much like his successor, Taney, had done in ex parte Merryman) in the Aaron Burr trial had set very high standards, in Marshall's case to embarrass his political enemy, Thomas Jefferson.
There have only been a handful of treason trials in American history: several men involved in the Whiskey Rebellion in the 1790s were convicted but later pardoned. In ex parte Bollman, 8 US (4 Cr) 75 (1807), one of the Burr conspirators was freed because the indictment was in the District of Columbia and Bollman had not been there. Chief Justice Marshall ruled that the indictment and trial would have to be held where the alleged treason had actually occurred, not, to carry the argument to the Civil War, in Pennsylvania, because, even though the Army of Northern Virginia paid a visit, President Davis was never there. The Burr Trial, United States v. Burr, 8 US (4 Cr.) 469, Appx. (1807) ruled that Burr could not be convicted unless two witnesses testified to Burr's actual involvement. Since that was a secret conspiracy, there was no one to testify against Burr.
After 1807 it was World War II before there was another Treason Trial! Of the three, only two were upheld. In the United States treason is an extremely difficult crime to prosecute. Facing this issue, the Johnson Administration wanted the best legal counsel possible if it was to try any of the Confederate leadership. They appointed a sort of Special Prosecutor, a man most of us know for a very different reason: Richard Henry Dana, Jr. Many of us read, back in junior high, his classic sea story, Two Years Before the Mast. What we forget is that Dana wrote the book, not as an adventure story for boys, but as an expose on the conditions faced by the common seamen of the 1840s. After completing law school, Dana became a leading attorney defending the less fortunate, whether they were seamen abused by their captains or employers, or accused escaped slaves.
In 1861, President Lincoln appointed Dana as United States Attorney for the Eastern District of Massachusetts. As such, in 1863, he successfully defended the United States in the Prize Cases before the United States Supreme Court (these were a group of cases, consolidated for appeal, on the capture of ships attempting to break the blockade of the Confederate ports. The issue argued revolved around two separate issues: was the Rebellion a "war" and when did the "Civil War" begin, in April, '61, with President Lincoln's Declaration of a blockade or in the summer when Congress approved what the president had done. The court unanimously ruled in favor of the administration's position that the Rebellion was a war but more narrowly (5-4) supporting the premise that the president's call for troops on April marked the beginning of the war. Not surprisingly Chief Justice Taney felt that the war could only begin when Congress said it did, very much as he had done in ex parte Merryman [67 U.S. (2 Black) 635, on line at http://www2.law.cornell.edu]])
The first question in any post-war treason trial was, had Davis waged war against the United States? Obviously. Second, where had he waged war? Probably in Virginia. Perhaps in Montgomery.
Well, then, he would have to be tried in Virginia, in the United States District Court for the Eastern District of Virginia. This was the court which, sitting in Richmond, had indicted not only Davis, but also a number of prominent Confederates, including Robert E. Lee.
Now the rub: according to Article II, Section 2, Davis, and anyone else, would have to be tried in Virginia, before a jury of Virginians! Remember that no blacks would qualify for a jury, indeed, if would have been hard to empanel a jury, which did not contain either ex-Confederates or Confederate sympathizers. And Dana was very concerned about the ability of the Government to convince twelve Virginians that Davis had committed a crime.
Let Dana, in a letter to Attorney General W.M. Evarts on August 24, 1868, expressed his opinion why there should be no attempt to try Davis (and by extension, any other Confederate) for their activities during the War. The letter is a little long but I think it important to allow you to read all of it:
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. 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 Causes 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 Causes 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 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 favorer 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 t ook 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.
President Johnson noted on the letter, "This opinion must be filed with care, A.J."
On the following Christmas, President Johnson issued an amnesty proclamation which included Davis, and, as a result, in the following February an order of nolle prosequi was entered, and Davis and his bondsmen were released. [end]
Now you can't plead ignorance any more.
Walt
As X so brilliantly shows, the whole book is a deliberate distortion scheme, with a view to separating racist suckers from thier money.
Walt
Let me make it clear that I firmly believe that if tried Davis would have been convicted. Not other verdict would have been possible. Personal feeling about his guilt aside, packing a jury was as well known a tactic in 1869 as it is today and there is no way that the government's prosecutors would have taken a chance on acquittal. Even in Virgina they would have found men who would have convicted and Davis would have gone to jail. Chase saved him from that. So the idea that a trial would have somehow vindicated secession is wishful thinking.
This has come up before. There is no support of Butler's statements anywhere in the record.
Walt
Dana's letter to Ewarts suggests that he wouldn't have stooped to pack a jury.
Don't forget that this same Lincoln who is lashed so badly by some of FR absolutely refused to consider treason trials for Davis or anyone else. Oddly, the best place I know of to see this re-enacted in a movie is in the Turner production about Booth. Lance Henrickson (who bore an eerily close resemblance to Lincoln) is seen pounding on the table, "No,no,no," to Stanton's demand for treason trials.
But there is little doubt, given the way Stanton railroaded the assasination conspirators, that he could have had Davis, Lee and the whole crew up on the scaffold soon after Lincoln's death, if he had so chosen.
Lincoln was a man with a great heart. He was -always- as he said, willing to forgive on the basis of Christian charity.
And yet the smear campaign proceeds.
Walt
Yes, long live the Marines! Murdering for the State for over 200 years, from brandishing Colts in the Philippines to keeping down Mexico. You object to being identified with murder? Why? You seem so proud of the murdering done against the South. Every death at the hands of our armed forces should bring a grin to your face and a glistening wetness in your eyes. Isn't it too bad napalm was not around back then for that fresh morning scent? There is no need to impugn my patriotism in retort; instead, you should be telling me, 'damn right! we'll kill anyone and anything that gets in the way of a Greater America, including those pesky Christians.'
I don't suppose you are a muslim extremist.
Perhaps you are a true southron. The Marine Corps has helped keep a lot of bad guys a little further off, over time, including the CSA traitors. You must really hate the United States. How is it that you didn't wind up in an Al Quaeda camp with Jihad Johnny Lindh?
If you hate the United States so much, you should consider going or staying somewhere else.
Walt
The Supreme Court said otherwise.
From the majority opinion in The Prize Cases:
"Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the Government. A civil war is never solemnly declared; it becomes such by its accidents--the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war. They claim to be in arms to establish their liberty and independence, in order to become a sovereign State, while the sovereign party treats them as insurgents and rebels who owe allegiance, and who should be punished with death for their treason."
You just sound childish when you can't acknowledge the historical record in an adult manner.
Walt
But Jeff Davis was NEVER put on trial for treason.
There was a very contentious meeting between Lincoln, Secretary of War Stanton and others, where Lincoln flatly refused to even consider trials for Davis or anyone else. That night Lincoln was assasinated.
Based on the way Secretary of War Stanton was able to railroad the assasination conspirators, it is likely he could have arranged long drops on short ropes for Davis, Lee or anyone he chose. Lincoln's strong opposition to such was probably a factor in why he didn't pursue such trials more strongly.
Walt
All court cases come to trial after the fact. The first time the issue was presented to the Supreme Court, they ruled secession to be null and void, and the secessionists to be engaged in treason.
You can argue that the secessionists had a right to revolution, but you cannot argue that there was a basis in U.S. law, because the record simply won't support it.
Walt
Walt
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