US vs. Jefferson Davis

Lost Cause

2nd Lieutenant
Joined
Sep 19, 2014
In order to prevent a derailment of the current monument thread

https://civilwartalk.com/threads/la...nt-in-the-south-is-coming-down.188623/page-28,

I have started this thread backing up the timeline, with my two cents.

Early May 1865, newly sworn US President Andrew Johnson made the following proclamation:

“Whereas, it appears from evidence in the Bureau of Military justice, that the atrocious murder of the late president, Abraham Lincoln, and the attempted assassination of the Honorable William H. Seward, secretary of state, were incited, concerted, and procured by and between Jefferson Davis, late of Richmond, Virginia," and other rebels and traitors against the government of the United States. “Now, therefore, to the end that justice may be done, I, Andrew Johnson, President of the United States, do offer and promise for the arrest of said persons, or either of them, within the limits of the United States, so that they can be brought to trial, the following rewards: one hundred thousand dollars for the arrest of Jefferson Davis," and suitable rewards were made for the arrest of all persons named in the proclamation.”

Former CS President Jefferson Davis was arrested on May 10, 1865 as an accused complicit with Lincoln’s assassination, and incarcerated for 2 years in Fort Monroe. No evidence was found linking Davis with the assassination plot. IMO, had the charge remained, Davis might have revisited the infamous “Dahlgren Affair,” where papers were discovered on Dahlgren’s body likely proving beyond reasonable suspicion that Seward authorized a failed assassination plot of Davis. Instead the charge was amended to Treason, obviously not as clear cut a convictable charge as many Unionists had anticipated.
 

BuckeyeWarrior

Sergeant
Joined
Jan 1, 2020
Location
Ohio
"Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation."
Texas v White 1869

As far as US law is concerned Davis was still a US citizen. He provided aid and comfort to the enemy. Hell, he led a rebellion against America. Under US law he was, and is, a traitor and should have been hung by the neck until dead.
 
Joined
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Location
mo
"Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation."
Texas v White 1869

As far as US law is concerned Davis was still a US citizen. He provided aid and comfort to the enemy. Hell, he led a rebellion against America. Under US law he was, and is, a traitor and should have been hung by the neck until dead.
However a 1869 ruling provided no clarification or bearing in 1861........that they had to define it rather says it wasnt defined in 1861.......If the state didn't cease to be a state, neither did ones loyalty to that state in 1861, nor that it's legally elected government was it's legally elected government.
 

DanSBHawk

Captain
Joined
May 8, 2015
Location
Wisconsin
There is a good book titled, The Lost Indictment of Robert E. Lee: The Forgotten Case against an American Icon, by John Reeves, that goes into detail how the government, under Andrew Johnson, bungled the opportunity to prosecute confederate leaders for treason.
 

C.W. Roden

Formerly: SouthernFriedOtaku
Joined
Dec 3, 2019
Location
South Carolina, USA, Earth
"Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation."
Texas v White 1869

As far as US law is concerned Davis was still a US citizen. He provided aid and comfort to the enemy. Hell, he led a rebellion against America. Under US law he was, and is, a traitor and should have been hung by the neck until dead.
Uh, I think you're overlooking something in your own post.

The US Supreme Court ruling in question was not made until four years following the end of the war. Until that point there was no legal determination in favor or, nor opposed to, the idea of secession. Now, I certainly don't claim to be a legal scholar, but arresting, trying and conviction of someone of a "crime" that was not legally declared one at the time might not be entirely legal.

Technically once Mississippi seceded (again in 1861 before secession was legally declared unconstitutional) Davis was not a US citizen according to one popular (at the time) interpretation of the Bill of Rights in the US Constitution. Since the framers of the Constitution never offered a true consensus on how permanent the Union actually was, the 9th and 10th Amendments could have been interpreted as a backdoor for secession -- even though not specifically mandated in the language of what many call a "living" document.

By the time that the ruling had been made in Texas v White, Mississippi had already been readmitted to the Union. Not exactly a statue of limitations, but again not really a declared "crime" at the time; and in a constitutional republic such as ours a person cannot be imprisoned for a non-crime.....at least in theory.

Had Davis been tried, there is a good chance that the US Supreme Court would have ruled any conviction unconstitutional -- a big reason why Johnson "pardoned" the Confederate leaders in 1867 and Grant and company didn't press the issue. They won the war, so why open up what would have been a legal Pandora's Box?
 

BuckeyeWarrior

Sergeant
Joined
Jan 1, 2020
Location
Ohio
Uh, I think you're overlooking something in your own post.

The US Supreme Court ruling in question was not made until four years following the end of the war. Until that point there was no legal determination in favor or, nor opposed to, the idea of secession. Now, I certainly don't claim to be a legal scholar, but arresting, trying and conviction of someone of a "crime" that was not legally declared one at the time might not be entirely legal.

Technically once Mississippi seceded (again in 1861 before secession was legally declared unconstitutional) Davis was not a US citizen according to one popular (at the time) interpretation of the Bill of Rights in the US Constitution. Since the framers of the Constitution never offered a true consensus on how permanent the Union actually was, the 9th and 10th Amendments could have been interpreted as a backdoor for secession -- even though not specifically mandated in the language of what many call a "living" document.

By the time that the ruling had been made in Texas v White, Mississippi had already been readmitted to the Union. Not exactly a statue of limitations, but again not really a declared "crime" at the time; and in a constitutional republic such as ours a person cannot be imprisoned for a non-crime.....at least in theory.

Had Davis been tried, there is a good chance that the US Supreme Court would have ruled any conviction unconstitutional -- a big reason why Johnson "pardoned" the Confederate leaders in 1867 and Grant and company didn't press the issue. They won the war, so why open up what would have been a legal Pandora's Box?
This same argument gets trotted out every time Texas v White is mentioned. There are two main problems with that. The supreme court, and all other courts, don't make decisions on issues that haven't come before them and when a supreme court makes a decision it is interpreting the constitution and that interpretation is what it has meant all along.

Jefferson Davis was not brought to trial because civilian courts had been reestablished in Virginia and he would have had to be tried in Virginia. Therefore the jury would have been packed with former confederates who most likely, no matter the evidence, would have voted not guilty. Here is a letter to attorney general Evarts from Richard Henry Dana, the prosecutor in Davis's case explaining this very fact.

"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."

"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."

He also notes that the supreme court, in the prize cases, determined "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."

So there is your Supreme Court opinion on the legal effects of secession during the actual civil war.
 

DanSBHawk

Captain
Joined
May 8, 2015
Location
Wisconsin
This same argument gets trotted out every time Texas v White is mentioned. There are two main problems with that. The supreme court, and all other courts, don't make decisions on issues that haven't come before them and when a supreme court makes a decision it is interpreting the constitution and that interpretation is what it has meant all along.

Jefferson Davis was not brought to trial because civilian courts had been reestablished in Virginia and he would have had to be tried in Virginia. Therefore the jury would have been packed with former confederates who most likely, no matter the evidence, would have voted not guilty. Here is a letter to attorney general Evarts from Richard Henry Dana, the prosecutor in Davis's case explaining this very fact.

"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."

"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."

He also notes that the supreme court, in the prize cases, determined "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."

So there is your Supreme Court opinion on the legal effects of secession during the actual civil war.
The most objective and fair way to conduct the treason trials would have been by military tribunal.
 

BuckeyeWarrior

Sergeant
Joined
Jan 1, 2020
Location
Ohio
The most objective and fair way to conduct the treason trials would have been by military tribunal.
I agree completely. Then after they were convicted, Lee, Davis, and the rest of the senior leadership of the rebellion should have been hung by the neck until dead.
 

NedBaldwin

Major
Joined
Feb 19, 2011
Location
California
...
Had Davis been tried, there is a good chance that the US Supreme Court would have ruled any conviction unconstitutional
In the Prize Cases of 1862, the Supreme Court made clear it viewed the Confederacy as an illegal rebellion.
Even the judges who dissented from the majority did not argue that secession was at all constitutional.
As such, there was basically zero chance that the US Supreme Court would have ruled a conviction unconstitutional
and the legal status was not as unknown as you wish it was
 
Joined
Sep 17, 2011
Location
mo
Except that would violate the Constitution. Treason trials must be conducted by a civilian court.
As well there's no longer any war.......no reason to circumvent civil courts, unless one just wanted a micky mouse kangaroo court.

" A kangaroo court may ignore due process and come to a predetermined conclusion." essentially go against actual American judicial values.
 

DanSBHawk

Captain
Joined
May 8, 2015
Location
Wisconsin
As well there's no longer any war.......no reason to circumvent civil courts, unless one just wanted a micky mouse kangaroo court.

" A kangaroo court may ignore due process and come to a predetermined conclusion." essentially go against actual American judicial values.
Of course, confederate sympathizers wanted a kangaroo court that was sympathetic to their treason, so your point is moot.
 
Joined
Sep 17, 2011
Location
mo
Of course, confederate sympathizers wanted a kangaroo court that was sympathetic to their treason, so your point is moot.
No actually a trial by your peers in the jurisdiction in question is what our constitution calls for, and has never been considered a kangaroo court. Nor has it anything to do with confederate sympathizers as the US Constitution has nothing to do with the Confederacy and well predates it.

That you seem unwilling to consider a jury might not agree with you, simply shows you want a kangaroo court that would ignore due process for some predetermined verdict of yours personally.........That you don't agree with the United States Constitution and the US Judicial system is noted, I disagree as would say both with American values has served us well and stood the test of time.

Nor I aware of anyone who knows what a verdict would have been if a trial had proceeded, the government surely did consider it well might lose in its decision to not proceed......indeed any fair trial always has three possible outcomes guilty not guilty or hung jury. Those possibilities don't nor should assure some outcome before the jury hears and interpets the evidence and law.
 
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