Richard Henry Dana, Jr., on trying Jefferson Davis for Treason

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From the blog Crossroads, by Professor Brooks D. Simpson, comes the following from poster Bob Huddleston:

"At the end of the war, the Johnson Administration wanted the best legal counsel possible if it was to try any of the Confederate leadership. The Administration appointed a Special Prosecutor, a man most of us know for a very different reason: Richard Henry Dana, Jr. We 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 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, consolidate3d on 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, 1861, 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) supported the premise that the president's call for troops on April marked the beginning of the war. Not suprisingly 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 [U.S. (2 Black) 635, on line at http://www2.law.cornell.edu ]

The first question in any post-war treason trial was, had [Jefferson] 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 in 1865 or 1866, indeed, it 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, express 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 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" ["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."

To be continued...

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