Restricted Largest Confederate Monument In The South Is Coming Down

ForeverFree

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"A pardoned person must introduce the pardon into court proceedings, otherwise the pardon must be disregarded by the court. To do that, the pardoned person must accept the pardon. If a pardon is rejected, it cannot be forced upon its subject" Burdick vrs US


Until someone is actually charged with a crime, and the pardon introduced into court to avoid trial, there is no acceptance of the pardon and no implication of guilt. Someone pardoned can still choose to stand trial to prove their innocence.....its odd how often the most important part of Burdick vrs US is ignored. So Johnson proclamations carry no implication of guilt, as the pardons were never invoked to indicate acceptance, nor any need of anyone to even accept a pardon to avoid guilt.

Burdick does say acceptance of a pardon imply's guilt, but the actual focus and point of the ruling is there is no such acceptance of the pardon or guilt, until actually introduced in court against an actual charge\conviction...........

Find it odd that anyone would subscribe to 1 man could make the 6th amendment pointless.
The official policy of the USA was that the former Confederates had engaged in a rebellion, and they were pardoned for the offense of treason. De facto, Davis and millions of other former Confederates accepted their pardon. They took advantage of the rights and privileges that the pardon offered them. Indeed, many former Confederates complained bitterly when, for example, their mistreatment of the freedmen resulted in temporary disfranchisement. They had no problem with the benefits the pardon provided... it was an offer they couldn't refuse. They certainly weren't going back to war to establish their rejection of the pardon...

The magnanimity showed to the rebels is somewhat unprecedented in world history, and many of them realized it. Of course many (most?) of them were bitter that their cause was lost, but they realized the pardon was a means to move forward after their defeat. It is worth noting that if Andrew Johnson had been impeached, the next president might not have been as magnanimous as Johnson, and things might not have gone so well for Davis. See the article "In 1868, the fate of Jefferson Davis's neck swung on Andrew Johnson's impeachment."

There is this notion that Davis was almost salivating at the idea of going to court to fight for the legal recognition of secession. But this may be apocryphal. At least two sources I've seen indicate that the Davis defense team was preparing to make the argument that the 14th Amendment already punished Davis by preventing him from holding public office in the future and that further prosecution and punishment would violate the Double Jeopardy Clause of the Fifth Amendment. This implied that he had committed treason, but had been punished enough. Whether repentant or not ~ and Davis was unrepentant ~ his actual defense strategy was more practical than ideological. But it was all rendered moot.

- Alan
 
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Booklady

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‘Chickens coming home to roost.’

Or

‘Your reap what you sow.’

Take your pick.

Either way I’m reminded of your comment about a reckoning. Well, here it is.
A horrific comment of acceptance of the desecration of graves.

Edited to add: Once again we see: That will never happen, and when it does you will totally have deserved it.
 
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The official policy of the USA was that the former Confederates had engaged in a rebellion, and they were pardoned for the offense of treason. De facto, Davis and millions of other former Confederates accepted their pardon. They took advantage of the rights and privileges that the pardon offered them. Indeed, many former Confederates complained bitterly when, for example, their mistreatment of the freedmen resulted in temporary disfranchisement. They had no problem with the benefits the pardon provided... it was an offer they couldn't refuse. They certainly weren't going back to war to establish their rejection of the pardon...

The magnanimity showed to the rebels is somewhat unprecedented in world history, and many of them realized it. Of course many (most?) of them were bitter that their cause was lost, but they realized the pardon was a means to move forward after their defeat. It is worth noting that if Andrew Johnson had been impeached, the next president might not have been as magnanimous as Johnson, and things might not have gone so well for Davis. See the article "In 1868, the fate of Jefferson Davis's neck swung on Andrew Johnson's impeachment."

There is this notion that Davis was almost salivating at the idea of going to court to fight for the legal recognition of secession. But this may be apocryphal. At least two sources I've seen indicate that the Davis defense team was preparing to make the argument that the 14th Amendment already punished Davis by preventing him from holding public office in the future and that further prosecution and punishment would violate the Double Jeopardy Clause of the Fifth Amendment. This implied that he had committed treason, but had been punished enough. Whether repentant or not ~ and Davis was unrepentant ~ his actual defense strategy was more practical than ideological. But it was all rendered moot.

- Alan
The court ruling is pardon is not accepted until introduced in court against an charge or conviction, as one can refuse it to stand trial if they wish.

Both Wilson and Burdick establish that.
 
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If they welcomed a day in court... how many of them asked or volunteered to be tried for treason?
Bizarre rational as there's no need, the lack of any actual charges proceeding already goes to their innocence.

But they would certainly not repent when they were innocent.
 
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ForeverFree

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The court ruling is its not accepted until introduced in court, as one can refuse it to stand trial if they wish.
OK, this is the edited version of my response: the Davis case never did go to trial, so we don't know what Davis was going to do in an actual trial situation. Historians have said that Davis was going to claim that he had been sufficiently punished for his actions, and so further prosecution amounted to double jeopardy; to me that line of defense supposes that treason was committed. {Reason being: if you were saying that the treason charge was invalid, then you'd claim that any punishment was inappropriate.}

Question: is it possible that, with the government having dropped its case, Davis could have filed a challenge to the pardon, thus forcing the pardon (and the treason charge) to be adjudicated? If that was an option, Davis did not pursue it.

- Alan
 
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DanSBHawk

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Bizarre rational as there's no need, the lack of any actual charges proceeding already goes to their innocence.

But they would certainly not repent when they were innocent.
If they were convinced of their own innocence, why didn't they reject any pardons?

When people say that Davis would have "welcomed" a trial, I would like to see support for that.
 
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If they were convinced of their own innocence, why didn't they reject any pardons?

When people say that Davis would have "welcomed" a trial, I would like to see support for that.
More bizarre rational, as two Supreme Court rulings have ruled a pardon isn't "accepted" until introduced into court to a charge or conviction. No need to reject what was never accepted legally.....
 

DanSBHawk

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More bizarre rational, as two Supreme Court rulings have ruled a pardon isn't "accepted" until introduced into court to a charge or conviction. No need to reject what was never accepted legally.....
I think it's bizarre to say that Davis, or any other rebel, would have welcomed a treason trial. Because a treason trial may well have ended in them hanging from the end of a rope.

So where is the evidence that supports that any of the rebels "welcomed" a treason trial?
 

ForeverFree

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More bizarre rational, as two Supreme Court rulings have ruled a pardon isn't "accepted" until introduced into court to a charge or conviction. No need to reject what was never accepted legally.....
One aspect of an amnesty provision is that it preempts cases going to court, because the offense in question has been pardoned. Prosecutors are not going to waste their time on cases they won't win. Since these cases will rarely go to court, we will rarely see people formally recognize the acceptance of their pardon. But they are living with all the benefits that come from not being prosecuted for a particular crime.

Now, maybe all the rebels who participated in the war could have said, "USA, we want you to prosecute us, we will not use the pardon as a defense... come and get us"... maybe. But I would guess that the overwhelming number of rebels decided not to go down that path. The benefits of not litigating (the restoration of rights and privileges granted by the pardon) clearly outweighed the costs (court costs, time to litigate, risk of losing the court case); rejecting the pardon had way too much downside. As I said before, amnesty was an offer they couldn't refuse. I referred to this previously as "de facto" acceptance, although legal eagles might not approve of it.

One evidence of refusal to accept the pardon would have been refusing its benefits. The 1868 pardon proclaimed the "restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof." Did the former Confederates reject those things? I don't think they did.

- Alan
 
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Stone in the wall

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OK, this is the edited version of my response: the Davis case never did go to trial, so we don't know what Davis was going to do in an actual trial situation. Historians have said that Davis was going to claim that he had been sufficiently punished for his actions, and so further prosecution amounted to double jeopardy; to me that line of defense supposes that treason was committed. {Reason being: if you were saying that the treason charge was invalid, then you'd claim that any punishment was inappropriate.}

Question: is it possible that, with the government having dropped its case, Davis could have filed a challenge to the pardon, thus forcing the pardon (and the treason charge) to be adjudicated? If that was an option, Davis did not pursue it.

- Alan
No, Davis intended to prove once Mississippi seceded he was no longer a U.S. citizen. The Davis trial would have been the trial of the century, and serve as a test for the legality of secession. The Union thought there was a strong possibility that his case would raise troubling questions about the Constitutionality of session and that the Union's war had been unjustified. Double Jeopardy was the excuse the Union used to drop the trial.
See Cynthia Nicoletti "Secession on Trial"
 

ForeverFree

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Pardon/amnesty does not equate with guilt or conviction.

There's still a rule in this country as there was in the 1860s - innocent until proven guilty in a court of law.
Again, I make the point: the 1868 pardon said:

I, Andrew Johnson... do hereby proclaim and declare unconditionally and without reservation, to all and to every person who, directly or indirectly, participated in the late insurrection or rebellion a full pardon and amnesty for the offense of treason against the United States or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof.​

This was deal, with benefits to the rebels. How many of them rejected the "restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof?" None that I know of... not saying there were none, anything is possible. But to repeat an earlier point: I am not aware of rebels who said, "I hate this pardon, I reject, come and try me in court."

Notably, post-war Home Rule was enabled by that restoration. The pardon was their key to power. That's why they lived under its terms.

- Alan
 
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One aspect of an amnesty provision is that it preempts cases going to court, because the offense in question has been pardoned. Prosecutors are not going to waste their time on cases they won't win. Since these cases will rarely go to court, we will rarely see people formally recognize the acceptance of their pardon. But they are living with all the benefits that come from not being prosecuted for a particular crime.

Now, maybe all the rebels who participated in the war could have said, "USA, we want you to prosecute us, we will not use the pardon as a defense... come and get us"... maybe. But I would guess that the overwhelming number of rebels decided not to go down that path. The benefits of not litigating (the restoration of rights and privileges granted by the pardon) clearly outweighed the costs (court costs, time to litigate, risk of losing the court case); rejecting the pardon had way too much downside. As I said before, amnesty was an offer they couldn't refuse. I referred to this previously as "de facto" acceptance, although legal eagles might not approve of it.

One evidence of refusal to accept the pardon would have been refusing its benefits. The 1868 pardon proclaimed the "restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof." Did the former Confederates reject those things? I don't think they did.

- Alan
Yes and we also know a case also never proceeded to trial before a pardon was issued as well, ...........the reality is the idea of national citizenship was rather murky pre civil war

"The pre-Civil War record on the issue is so vague because there was wide disagreement on the basis of national citizenship in the first place, with some contending that national citizenship was derivative from state citizenship, which would place the power of providing for expatriation in the state legislatures, and with others contending for the primacy of national citizenship, which would place the power in Congress." From Cornell Law School on citizenship.

The very issues raised by the the ACW were addressed postwar by constitutional amendments and Supreme Court cases....but we do not apply law ex post defacto in the United States, so they would have no effect on a event from 1861.

If the US had proceeded with a case that they didn't, because they were afraid they might lose, would think it's reasonable to acknowledge they might have lost....a jury of his peers might very well have concluded not committing treason to the state that had gave him citizenship was not treason.
 
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DanSBHawk

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Getting back to Monument Avenue, I thought this post by Kevin Levin was interesting: https://cwmemory.com/2021/09/20/remembering-and-forgetting-on-richmonds-monument-avenue/

The postcard shows how the old earthworks of the battlefield were bulldozed over, in order to build the avenue and it's monuments and its residential lots for whites. So wasn't this an act of "erasing history?" I'd say this was a far more explicit example of erasing history than the current removal of post-war statues.

044889.jpg
 

ForeverFree

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No, Davis intended to prove once Mississippi seceded he was no longer a U.S. citizen. The Davis trial would have been the trial of the century, and serve as a test for the legality of secession. The Union thought there was a strong possibility that his case would raise troubling questions about the Constitutionality of session and that the Union's war had been unjustified. Double Jeopardy was the excuse the Union used to drop the trial.
See Cynthia Nicoletti "Secession on Trial"

So, help me to understand this. This is from the article: In 1868, the fate of Jefferson Davis's neck swung on Andrew Johnson's impeachment

The treason trial of Confederate President Jefferson Davis was supposed to be the "Greatest Trial of the Age" in 1868. But that title was claimed instead by the Senate impeachment trial of President Andrew Johnson... The two trials became so intertwined that Davis's prosecution was delayed for months. While "the man they denounce as a traitor goes free," the Louisville Courier noted, Johnson "is upon his trial for high crimes and misdemeanors." Moreover, Johnson's fate could have determined whether Davis would be hanged...​
The impeachment trial had ominous implications for Davis. If Johnson were removed from office, there was no vice president to succeed him. The speaker of the House was not made second in the line of succession until 1947, so the next in line for the presidency was the Senate president pro tempore, Sen. Benjamin Wade of Ohio, a leader of the Radical Republicans.​
"Davis has been a sort of a white elephant to Johnson and the Chief Justice Chase. They have no desire to keep him, they have been puzzled how and where to try him, and they have been afraid to let him go," said the Springfield Register, a Massachusetts newspaper. "But President Wade will not stand upon technicalities or trifles. His first great card, in order to strike terror among the unreconstructed rebels in the South … will be the hanging of Jeff Davis."​
Johnson escaped conviction by one vote. Because the impeachment trial dragged on into May, the Davis trial had to be delayed again. The Davis lawyers then moved to quash his indictment, citing the recently passed 14th Amendment, which included a provision barring participants in the rebellion from holding public office. Thus, they argued, Davis had already been punished. In December, Chief Justice Chase voted to quash the indictment, but Judge Underwood disagreed. So the case was sent to the full U.S. Supreme Court.​
On Christmas 1868, lame-duck President Johnson made the case moot by issuing a general pardon for all participants in the rebellion, including Davis.​

And as noted from this source:

The court finally heard preliminary motions in December 1868, when the defense asked for a dismissal claiming that the Fourteenth Amendment to the U.S. Constitution already punished Davis by preventing him from holding public office in the future and that further prosecution and punishment would violate the double jeopardy restriction of the Fifth Amendment. The court divided in its official opinion and certified the question to the United States Supreme Court. Fearing the court would rule in favor of Davis, Johnson released an amnesty proclamation on December 25, 1868, issuing a pardon to all persons who had participated in the rebellion.​

So, if Davis was out to prove that secession was unconstitutional, then why did he file that his case should be dropped because he had already been punished, and punished enough? I think there is this myth that the Davis defense was all about secession and the Constitution; in fact, it looks like Davis was trying to get off on a technicality. Notably, this technicality was something of a creation of US government officials, but that's long story we can bypass for now.

The key thing is, Davis was not out to prove that once Mississippi seceded he was no longer a U.S. citizen. Simply put, the Davis defense was looking for the best way out. Davis didn't have to use that technicality. He could have litigated the case based on constitutional issues, and chose not to do so. The bottom line was to get Davis off... with a secession defense, if it could work... with a technicality, if that could work. And that explains the legal strategy they actually pursued. The defense was about the practical and mundane, not the ideological or quixotic.

I asked previously: is it possible that, after the government dropped its case, Davis could have filed a challenge to the pardon, thus forcing the pardon, and the legality of the treason charge, to be adjudicated? If that was an option, Davis did not pursue it. My guess is that with the Johnson pardon, Davis felt like he dodged a bullet. Or a hanging. And he was OK with that.

- Alan
 
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Viper21

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A lot of liberty has been allowed on this thread. It's time to take it back to the OP, or shut it down.
The topic of this thread is the Lee Monument, that was recently removed from Monument Ave in Richmond, VA.

Thanks.
 

1950lemans

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A lot of liberty has been allowed on this thread. It's time to take it back to the OP, or shut it down.
The topic of this thread is the Lee Monument, that was recently removed from Monument Ave in Richmond, VA.

Thanks.
I think it's a good thing that the moderators have allowed a lot of liberty on this thread.
I think it's a great thing that the moderators have reminded posters to stay on track throughout.
I'm still making my way through this entire thread. Five or so days so far.
It would be a crying shame if it was shut down. Maybe people like me would be formulating some thoughts, but if it was shut down that would be the end of that. We'd never get an opportunity to comment further.
Thanks.
 

19thGeorgia

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Getting back to Monument Avenue, I thought this post by Kevin Levin was interesting: https://cwmemory.com/2021/09/20/remembering-and-forgetting-on-richmonds-monument-avenue/

The postcard shows how the old earthworks of the battlefield were bulldozed over, in order to build the avenue and it's monuments and its residential lots for whites. So wasn't this an act of "erasing history?" I'd say this was a far more explicit example of erasing history than the current removal of post-war statues.
Battlefield?

Many earthworks were constructed in the South. They sort of lose their significance if no battle was fought there - like those in the postcard. There was fighting in front of Richmond but not on that side of town.

Ever hear of the Battle of Montgomery, AL?...Battle of Augusta, GA?
Lot of earthworks here but no battle...and no earthworks preserved-
MontgomeryAL.jpg

AugustaGA.jpg
 
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