Were Confederate Generals Traitors?

[CMWinkler]

Were Confederate Generals Traitors?

By Walter E. Williams | June 27, 2017 | 8:37 AM EDT



Expired Image Removed
At the 150th anniversary of the Civil War's Battle of Chancellorsville, a Confederate re-enactor issues orders to troops to get them into position during the re-enactment of Maj. Gen. Stonewall Jackson's flank attack against the Union XI Corps. (DOD Photo/Sgt. 1st Class Raymond J. Piper, Soldiers Live)
My "Rewriting American History" column of a fortnight ago, about the dismantling of Confederate monuments, generated considerable mail.

Some argued there should not be statues honoring traitors such as Robert E. Lee, Stonewall Jackson and Jefferson Davis, who fought against the Union. Victors of wars get to write the history, and the history they write often does not reflect the facts. Let's look at some of the facts and ask: Did the South have a right to secede from the Union? If it did, we can't label Confederate generals as traitors.

More: http://www.cnsnews.com/commentary/walter-e-williams/were-confederate-generals-traitors#disqus_thread

 

[JerseyBart]

We do love wearing grey.

I have gray t-shirt on right now...2016 Wildwood Half Marathon.

 

[Bee]

I have gray t-shirt on right now...2016 Wildwood Half Marathon.

I have a white one on: I give up

 

[Schwallanscher]

marathons? is doing them on rollereskates a different competition? if not you both lost

 

[suzenatale]

This article also points out the supreme court considered "confederate activities" treason.

"Lower courts have had occasion to enter verdicts of treason, commencing with the Whiskey Rebellion, some of them arguably on broader grounds than what the Supreme Court would later countenance. For example, courts held that armed resistance to the collection of taxes constituted constructive treason. A number of cases arising out of the Civil War also suggested, without directly interpreting the Constitution, that Confederate activities amounted to treason (although the general amnesty of December 25, 1868, pardoned all Confederates)."
http://www.heritage.org/constitution/articles/3/essays/119/treason
​

So how bout we say, yes anyone aiding the confederacy was a traitor, confederate generals were traitors, but you would need to have two witnesses prove any given one if them was indeed a confederate general.

 

[cash]

If not by trial or test oath how do you prove they engaged in rebellion?

Historical fact.

 

[CSA Today]

there's no double negative - if you like put a comma behind hint (it's not necessary though)

My reply was not intended to be a dig, I really didn't understand what you meant. Your English is better than several of the English speakers here and much better than my German.

Double negatives are two negative words used in the same sentence.Using two negatives turns the thought or sentence into a positive one. Double negatives are not encouraged in English because they are poor grammar and they can be confusing; but, they are sometimes used in song lyrics and informal speech.
Read more at http://examples.yourdictionary.com/examples-of-double-negatives.html#7o5yIOGyxsKWyPFm.99

 

[suzenatale]

Historical fact.

I don't think any kind of punishment can be inflicted on you based on historical fact.
Even though they were effectively being punished without a trial, and the punishment might be constitutional as it is in the constitution, that does not take away the need to prove guilt. Granted, no one of them would probably fight it on the grounds that they are innocent, because they were not. But you would expect that they would be innocent until proven guilty.

But again I suppose the 14th Amendment is not so much acknowledging guilt as it is a state of being. As I said the constitution prescribed that woman could not vote and there was no trial to prover her guilty of womanhood and she was not innocent until proven woman.

I think how it happens with felons is the people running the polling station have to let you vote if you demand it but you can get in trouble for having voted. If I'm recalling that right?
Because you don't want the person at the voting booth to be the judge and jury.
So in that way it is a kind of honor bound thing.
A woman could try to vote but get in trouble for it later.

You can be pardoned for a crime and spared its punishment, but you can't be pardoned from a state of being and spared
laws that allow or disallow that. You cannot be pardoned for being a woman, it wasn't a crime, it just is what you are and back then meant no voting. So state of being is totally separate from the crime, punishment and pardon business?

Is any of that making sense?

 

[cash]

I don't think any kind of punishment can be inflicted on you based on historical fact.
Even though they were effectively being punished without a trial, and the punishment might be constitutional as it is in the constitution, that does not take away the need to prove guilt. Granted, no one of them would probably fight it on the grounds that they are innocent, because they were not. But you would expect that they would be innocent until proven guilty.

But again I suppose the 14th Amendment is not so much acknowledging guilt as it is a state of being. As I said the constitution prescribed that woman could not vote and there was no trial to prover her guilty of womanhood and she was not innocent until proven woman.

I think how it happens with felons is the people running the polling station have to let you vote if you demand it but you can get in trouble for having voted. If I'm recalling that right?
Because you don't want the person at the voting booth to be the judge and jury.
So in that way it is a kind of honor bound thing.
A woman could try to vote but get in trouble for it later.

You can be pardoned for a crime and spared its punishment, but you can't be pardoned from a state of being and spared
laws that allow or disallow that. You cannot be pardoned for being a woman, it wasn't a crime, it just is what you are and back then meant no voting. So state of being is totally separate from the crime, punishment and pardon business?

Is any of that making sense?

One can certainly be punished based on historical fact if it's written in the Constitution.

 

[DaveGberg]

One can certainly be punished based on historical fact if it's written in the Constitution.

I think what @suzenatale is saying is that while the constitution states that a person engaged in the rebellion is barred from holding office, the government still has the burden to prove that person did in fact, engage in the rebellion. The proof may be overwhelming based on that historical fact, but the government still has that burden nonetheless.

 

[suzenatale]

I think what @suzenatale is saying is that while the constitution states that a person engaged in the rebellion is barred from holding office, the government still has the burden to prove that person did in fact, engage in the rebellion. The proof may be overwhelming based on that historical fact, but the government still has that burden nonetheless.

Yes thank you.

 

[CW Watch & Sword Guy]

True enough. Secessionists seemed content to accept the mantle of Revolution, but denied that the Constitution had any authority to deny secession, because it was, as a states right, outside the authority of the Constitution.

Whether secession was outside the jurisdiction of the Constitution was itself a Constitutional question. In no other instance are states empowered to decide Constitutional questions on their own, but must defer to the Supreme Court. Claiming the right of unilateral secession essentially meant that a state could decide to abide by the Constitution or not as it, and it alone saw fit - essentially Calhoun's nullification doctrine. Under those circumstances, there can be no such thing as a binding Constitutional commitment, because the Constitution itself isn't binding. Thus, if a democratic election in which your state took part doesn't go your way, simply secede. No nation could possibly have survived, much less flourished, once it had swallowed such a poisonous, self-destructive proposition.

 

[suzenatale]

One can certainly be punished based on historical fact if it's written in the Constitution.

Well first show me that it is a punishment. If it is a punishment than why would a pardon not apply to it? It seems to me to be more a rule you can break by not abiding by it, as a woman trying to vote, by being a woman and voting she broke the rule, she never had to be first convicted of being a woman, it was on her to know she was a woman and not break the rule. A punishment would mean you would first have to prove she is a woman to then punish her for it, whether she knows it or not you have to prove it. You can't punish without first proving. If its a rule, then it makes sense to me legally that no trial is needed first, if it is a punishment it makes no sense how they could enforce it without a trial or oath.

 

[cash]

Well first show me that it is a punishment. If it is a punishment than why would a pardon not apply to it? It seems to me to be more a rule you can break by not abiding by it, as a woman trying to vote, by being a woman and voting she broke the rule, she never had to be first convicted of being a woman, it was on her to know she was a woman and not break the rule. A punishment would mean you would first have to prove she is a woman to then punish her, whether she knows it or not you have to prove it. You can't punish without first proving. If its a rule, then it makes sense to me legally that no trial is needed first, if it is a punishment it makes no sense how they could enforce it without a trial or oath.

Jefferson Davis' lawyers claimed it was a punishment, and Chief Justice Chase agreed.

 

[suzenatale]

Jefferson Davis' lawyers claimed it was a punishment, and Chief Justice Chase agreed.

Okay, then I have no idea how that happened legally. If it is not my theory than I don't know. Do you have a quote? It might help us with this whole were they traitors business.

 

[John S. Carter]

They were not prosecuted in the usual manner but rather through the 14th Amendment,

"Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."
​

It refers to them as having committed a crime and this was something they were later given or had to request pardon for.
And a pardon can only be given if a crime was committed.

As far as I know none of them ever tried to argue that this was an unfair punishment as no crime was ever committed by them. They asked for a pardon which is an admission of guilt.

"Gentlemen present themselves here who were once practitioners before this court, but who confess in form that they have been traitors, and virtually confess that they have forfeited the privileges which they had under the rules of this court. Confessing all this, they maintain their right to take the original oath again, and to come back to practise before this court because they have been pardoned by the President."
​

Rather than try everyone they held them to an oath that questioned whether they were a traitor. If they wanted a privilege they had to swear that they were never traitors, or say they were and be pardoned.

"The act prescribing the oath does not say, that when a man comes here and admits that he has committed the offence, the court shall try and punish him for that offence. It says, that in order to practise he shall take an oath that he has never committed treason, that he has never joined the Rebellion. That is all. He may take the oath or not as he pleases. No one compels him to take it. Is it a penalty, when he must invoke the penalty on his own head if there is penalty? That oath does not punish him, nor authorize anybody to punish him, nor say that he has done anything heretofore that is punishable in the sense of crime or delict. He may stay away; no one can touch him."
​

Here's all the legal stuff for our lawyers.

http://caselaw.findlaw.com/us-supreme-court/71/333.html

If the states never left the Union,what was the nature of the crime that these men committed ? Did this action which require a oath have a role in the hostile feelings that the former Confederates felt? Were civilians required to take the oath?Sorry but I admit lack of Knowledge on this subject.

 

[John S. Carter]

The "general" was actually a colonel-- Colonel Henry Wirz, and he wasn't the only person that went to trial. Confederate guerilla Champ Ferguson was charged with 53 counts of murder, found guilty and hanged. Also, former Confederate major and commander of the Salisbury Prisoner of War camp in North Carolina from September 1864 until the surrender of Johnston's forces in 1865, John H. Gee, was charged with one count of "violation of the rules and customs of war" which included two specifications along with a second count of "murder in violation of the laws of war" which included seven specifications. Gee was acquitted of all specifications and counts by the military court.

edit- broke up super long sentence

Why was there not any Union commanders of POW camps placed on trail? Their camps were as horrible as the Confederates ,aka the Chicago POW CAMP.

 

[JerseyBart]

Why was there not any Union commanders of POW camps placed on trail? Their camps were as horrible as the Confederates ,aka the Chicago POW CAMP.

They won.

 

[suzenatale]

If the states never left the Union,what was the nature of the crime that these men committed ? Did this action which require a oath have a role in the hostile feelings that the former Confederates felt? Were civilians required to take the oath?Sorry but I admit lack of Knowledge on this subject.

Anyone had to take it who wanted to vote or hold office.

I, A. B., do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power or constitution within the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States, against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God.​

— Statutes at Large, Thirty Seventh Congress, Second Session[1]

The Oath was a key factor in removing many ex-Confederates from the political arena during the Reconstruction era of the late 1860s. To take the Ironclad Oath, a person had to swear he had never borne arms against the Union or supported the Confederacy — that is, he had "never voluntarily borne arms against the United States," had "voluntarily" given "no aid, countenance, counsel or encouragement" to persons in rebellion and had exercised or attempted to exercise the functions of no office under the Confederacy. A farmer who sold grain to the Confederate Army would be covered. The oath was detested by ex-Confederates; some called it "The Damnesty Oath."[2]

Congress devised the oath in July 1862 for all federal employees, lawyers, and federal elected officials. It was applied to Southern voters in the Wade–Davis Bill of 1864, which President Abraham Lincoln vetoed. President Andrew Johnson also opposed it. Both Johnson and Lincoln wanted Southerners instead to swear to an oath that in the future they would support the Union. Lincoln's amnesty oath was integral to his ten percent plan for reconstruction. In 1864 Congress extended the provisions of the ironclad oath to its own members, but overlooked perjury when it came to seating Southern Republicans. Hyman says that in 1866, Northern Congressmen "described the oath as the last bulwark against the return of ex-rebels to power, the barrier behind which Southern Unionists and Negroes protected themselves."[3]

The first Supplemental Reconstruction Act (March 23, 1867) required an oath of past loyalty in order for any man in the South to vote. The local registrar had to swear that he had never held office under Confederacy, nor given aid or comfort to it. They also had to take the ironclad oath.[4]

In 1867 the United States Supreme Court held that the federal ironclad oath for attorneys and the similar Missouri state oath for ministers, teachers, and other professionals were unconstitutional, because they violated the constitutional prohibitions against bills of attainder and ex post facto laws.[5][6][7]

In March 1867 Radicals in Congress passed a law that prohibited anyone from voting in the election of delegates to state constitutional conventions or in the subsequent ratification who was prohibited from holding office under section 3 of the pending Fourteenth Amendment.[8] Those exclusions were less inclusive than the requirements of the Ironclad Oath. These exclusions allowed the Republican coalitions to carry the elections in every Southern state except Virginia. The Republican-dominated legislatures wrote and enacted new constitutions. These new state constitutions applied to all state officials and could not be repealed by an ordinary vote of the legislature.

The Republicans applied the oath in the South to keep political opponents from holding office or (in some states) from even voting.[9] Hyman says, "most Southerners, even good Republican supporters, were disfranchised by the ironclad oath's blanket provisions rather than by the Fourteenth Amendment's highly selective disabilities."[10]

Perman emphasizes that the Republican ascendancy in the South was "extremely precarious" because the electorate had been defined by Congress, and "many potential opponents had been disfranchised, while others have simply refused to participate in what they regarded as a rigged election."[11] Perman argues that while the Radicals had controlled the state constitutional conventions, they increasingly lost power inside the Republican Party to conservative forces that repudiated disfranchisement and proscription. Voters in Texas, Virginia, and Mississippi voted down the new constitutions even though many opponents were disfranchised. The result was that by 1870 in every state except Arkansas, the Republicans dropped the restrictions against ex-Confederates and supporters, such as the ironclad oath. In Arkansas the Republican split and fought an internal civil war called the Brooks–Baxter War.[12]

In 1871, Congress modified the ironclad oath in order to permit all former rebels to use the 1868 formula to swear to "future loyalty." President Ulysses S. Grant vetoed the law, but Congress passed it.[13]​

 

[DaveGberg]

If the states never left the Union,what was the nature of the crime that these men committed ?

Insurrection or treason come to mind. "Any other crime" would mean just that.

 

[WJC]

Try it. Go rob a bank and claim they're the real thieves and see how far you get. We'll wait.

I won't wait for @19thGeorgia . I've got things to do in the next few years....