Well, as I say, you don't seem very familair with the record.
Any trial for treason would have to have been in the state where the treason occured. In Davis' case, that would be in Virginia or perhaps Alabama (the first CSA capital being in Montgomery). There was a real fear that no jury the government could empanel would convict Davis, Lee and the other traitors. Well, let me paste a letter.
From a newsgroup; not written by me. Consider:
"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 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."
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]
But there is no doubt that Lee, Davis, ain in fact EVERY CSA soldier met the treason definition as given in the Constitution.
Walt
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).