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

Discussion in 'Civil War History - Secession and Politics' started by unionblue, Oct 10, 2012.

  1. unionblue

    unionblue Colonel

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    To All,

    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...

    Unionblue

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  3. unionblue

    unionblue Colonel

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    Continued from above...

    "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."

    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 February, 1869 an order of "nolle prosequi" was entered, and Davis and his bondsmen were released."

    To see the entire conversation at Crossroads blog site, go to the following website:

    Salmon P. Chase on Treason and Secession, by Brooks D. Simpson.

    http://cwcrossroads.wordpress.com/2012/10/09/salmon-p-chase-on-treason-and-secession/

    Unionblue
  4. cedarstripper

    cedarstripper First Sergeant

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    Thanks for the letter. Dana's opinion had to have been right on the mark. Nice to read something that makes so much sense.
  5. Carronade

    Carronade First Sergeant

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    Small point, it's Article III, section 2. There is an exception for crimes not committed in any State, in which case Congress can determine the place. I suppose they could try Davis in New York or Boston for the depredations of Confederate commerce raiders on the high seas - ignoring the other 99% of the war - but it would have been an obvious dodge, little less harmful to the government's credibility than an acquittal.
    ExNavyPilot likes this.
  6. truthckr

    truthckr First Sergeant

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    Great read and post UB!
  7. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Good info.

    I'd be of the view that the Dana and Chase opinions/positions provided legal cover for political decisions. A determined and united political effort 'could have' hung Davis et. al. for treason. However the government was divided overtly and covertly over the issue and without unity, the matter is moot.
    ExNavyPilot and unionblue like this.
  8. Red Harvest

    Red Harvest 2nd Lieutenant Trivia Game Winner

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    It seems there was little point in trying and possibly hanging Davis. He was already discredited and the Confederacy was no longer in arms. Why make a martyr of him?

    As was noted in the article, this would by necessity be a political trial, and in this case considering likely jurisdication a lack of unanimity in favor of conviction was almost guarranteed. (This very problem is a primary reason why guerrillas were summarily shot in the field rather than bringing them in for trial, it was almost always a mistake to bring them back alive.)
    leftyhunter likes this.
  9. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    I'd been simpler if Davis got shot trying to escape capture.

    There is no legal problem without a solution, if the political will is there. You select the judges and lawyers that will convict. 1865 trial of Henry Wirz andthe Trial of the Lincoln Assassination Conspirators are good examples of political will insuring a particular verdict. 50, 75 or more years later you say opps and vacate the verdict posthumously.

    But the political will and or unity was not there in this case.
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  10. Pvt.Shattuck

    Pvt.Shattuck Sergeant

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    Thanks for the post. I always wondered about the decision not to try Davis for treason, and this makes perfect sense.
    unionblue likes this.
  11. Flash

    Flash Private

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    Very interesting read! Thank you for posting!
  12. Dave Wilma

    Dave Wilma Sergeant Major Forum Host

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    Yes, a great post. I can easily imagine this as a memo within the Justice Department today.

    One end run to overcome the jury nullification issue would be to try Davis before a jury in Indiana or Pennsylvania where Confederate soldiers were active and Confederate sympathy was less. I guess South Carolina would be a non-starter. In any multi-juristictional case there is often a struggle among prosecutors to see who will get to bring someone to trial. Witness the recent "Barefoot Bandit" case.

    The Trial of Jefferson Davis would be a great screen play. Oh, that's been done.
  13. OpnCoronet

    OpnCoronet Captain

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    The legal case was much stronger than the political will to make it(the case).
  14. Old_Glory

    Old_Glory First Sergeant

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    Interesting letter, thanks for posting it.

    1. It would be a cold day in hell before any real Virginian convicted Davis to be hanged. This was good reasoning here, it would have been pointless to try it.

    2. Those rulings by the Supreme Court stuffed with Lincoln appointees (5) in the time period during and directly after the Civil War are suspect to say the very least. I don't think that is what the founding Fathers had in mind when they were trying to balance power.
  15. unionblue

    unionblue Colonel

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    Old_Glory,

    You might want to check the time line when it comes to your above statement in paragraph no. 2.

    Are you saying that the Prize Cases were in the Lincoln administration's favor because the Supreme Court had been "stuffed" with Lincoln appointees?

    Don't think so.

    Sincerely,
    Unionblue
  16. Copperhead-mi

    Copperhead-mi Sergeant Major

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    UB, I agree that the Prize cases Court was anything but "stuffed" with Lincoln appointees.

    At the time of the Prize cases three Lincoln appointees -- Republicans Noah Swayne, originally born and raised in Virginia but later moved to Ohio, David Davis from Illinois, and Samuel Miller, a Westerner who was born in and spent most of his life in Kentucky before moving to Iowa -- joined an existing Supreme Court composed of Southerners Roger Taney from Maryland, John Catron from Tennessee, and James M. Wayne from Georgia, as well as Democrats and state rights advocates from the Northern states, Robert Grier from Pennsylvania, and Samuel Nelson from New York.
    unionblue likes this.
  17. OpnCoronet

    OpnCoronet Captain

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    I think Dana, et. al., was overstating the legal difficulties of the case, to sustain unstated political agendas. That is all right, that is what politicians do. But, it builds a false impression to the public mind, that a conviction for treason, was too difficult of accomplishment, when, in fact, it was more the political side that was too difficult, than just the legal.
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  18. ole

    ole Brev. Brig. Gen'l Retired Moderator

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    Trying Davis and other Confederate leaders would have just widened the rift. It was time to end it.
  19. Old_Glory

    Old_Glory First Sergeant

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    There were three appointed by him at the time of those cases, he only needed two more votes. All Lincoln's appointees sided with him (Swayne, Miller, and Davis what a shocker). He added two more judges in the next few years. That is stuffed. I take all those cases in regards to Civil War in that time period with a grain of salt.
  20. unionblue

    unionblue Colonel

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    Old_Glory,

    Sorry, but your just plain wrong. Lincoln was anything but sure of a "stuffed" court when the Prize Cases came before the Taney Court, as pointed out by Copper-head mi's previous post:

    You may not like the outcome, but it was hardly assured or "stuffed."

    Sincerely,
    Unionblue

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