But for treason to have been committed, it must have been performed by an American citizen. The record clearly indicates that Davis et al had renounced their US citizenship when they formed the Confederacy. Renouncing citizenship is not a treasonous act, so that mitigates any claim for treason immediately. So regardless of whether or not secession was legal, Davis et al were no longer US citizens. That's why Davis was not tried and convicted.
But Walt I do thank you for your post, and must admit, I do read them. Every once in a while you can find some fascinating tidbit that slips through the cracks:
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])
According to this reasoning, either Lincoln started the war or Congress did. But I'll check the actual decision itself:
The objection made to this act of ratification, that it is ex post facto and therefore unconstitutional and void, might possibly have some weight on the trial of an indictment in a criminal Court. But precedents from that source cannot be received as authoritative in a tribunal administering public and international law.
Justice Grier, Prize Cases, 67 U.S. 635 (1862)
Here Grier admits that the Congressional approval of Lincoln's actions have some legal problems. But even more interesting is this statement:
By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole Executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But, by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations and to suppress insurrection against the government of a State or of the United States.
Justice Grier, Prize Cases, 67 U.S. 635 (1862)
There you have it, straight from the horse's mouth, neither Congress nor the President cannot declare war against a state. If the was is a "war", then the states are a foreign territory, and seccession is legally recognized. If the war is not a "war", then Davis et al cannot be charged with treason (levying war).
To convenient by half. You can do the same. Try it.
Too, the language in the Constitution says nothing about citizenship.
Ooops.
Walt
Ho hum.
According to the Militia Act of May 2, 1792, as amended Feb 28, 1795, Sec. 2:
"And it be further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislatures of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session."
You'll note it says nothing about a state having passed an ordnance of secession to be a bar to federal action.
So Lincoln had the law plainly on his side when the war began.
It should also be noted that this legislation was passed at the request of George Washington.
Walt