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What would have happened if Confederates were charged with treason after the war?

Discussion in '"What if..." Discussions' started by Reb, Apr 20, 2017.

  1. Reb

    Reb Sergeant Major Trivia Game Winner

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    I am thinking the reason nobody was charged with treason is that the backlash would have made things much worse. The courts would have been tied up for years. The country would have been fractured even worse than it was. It would have made it impossible to begin healing. Your thoughts?
     
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  3. LoriAnn

    LoriAnn Captain

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    I agree with you. The war itself was punishment enough for everyone. Sometimes it's best to just pick up and move forward.
     
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  4. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Which Confederates? Normally only high ranking military and political officers are tried, not the rank and file just following orders. Then you you have the various surrender terms which precluded trying for treason much of the military.

    The big obstacle is the lack of desire of the Union political and military to prosecute. There is political advantage getting Southerners back into political life and getting their vote. Plus the folks that wanted to unite the nation and finish Manifest Destiny and conquer the world.

    Before we take off down this line, you really need to lay the ground work for the conditions leading to the trials. .
     
  5. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    There was an tendency to start making money and making babies instead of a political witch hunt.
     
  6. LoriAnn

    LoriAnn Captain

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    Both very good ways to spend one's time. :thumbsup:
     
  7. cash

    cash Brev. Brig. Gen'l

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    Several confederates were charged with treason. We don't have to wonder.
     
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  8. Reb

    Reb Sergeant Major Trivia Game Winner

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    A political witch hunt that may have backfired. It may have put too much focus on the constitutionality issues of the Lincoln administration. Lot's of blame to go around. Better to just deify Lincoln and let sleeping dogs lie.
     
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  9. Reb

    Reb Sergeant Major Trivia Game Winner

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    What was the result of those charges?
     
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  10. cash

    cash Brev. Brig. Gen'l

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    Presidential pardons.
     
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  11. Reb

    Reb Sergeant Major Trivia Game Winner

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    Why were they pardoned?
     
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  12. cash

    cash Brev. Brig. Gen'l

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    To save them from being punished for the crime of treason.
     
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  13. wausaubob

    wausaubob Sergeant Major

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    1. To prosecute the military people, the US would have to overcome the objections of Grant, who had granted a de-facto amnesty, on purpose, to anyone who had surrendered, and the objections of Sherman, who wanted the war over with.
    2. To prosecute the political leaders, there was a window of opportunity until March of 1869. After that, the US had elected Ulysses Grant and his position was clearly a no recrimination policy, and he had the power of pardon and granted it fully whenever it was requested. The country explicitly adopted Grant's policy. There were railroads to build and families to make.
     
  14. diane

    diane Brev. Brig. Gen'l Forum Host

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    14th Amendment. The United States vs Jefferson Davis was wending its way through to the Supreme Court when Johnson just pardoned everybody. Some judges interpreted it one way and others another - it would have been interesting to see what the Supremes would have made of it...and there's been a LOT of civil rights litigation involving this amendment.
     
  15. AndyHall

    AndyHall Colonel Forum Host

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    There are several sources that say that Chief Justice Chase, who had been a member of Lincoln's cabinet, was opposed to trying Davis for treason because, under the newly-ratified Fourteenth Amendment, he was already barred from holding public office and, taking that to be a punishment for his actions, trying him for treason would amount to double jeopardy.

    There is a famous quote attributed to Chase, to the effect that Davis could never be convicted. I've tried to find the original source, but haven't been able to find it so far; the farthest back I get is Vol. III (1974) of Foote's trilogy (p. 1035, my emphasis):

    By that time, prominent Northerners — especially those in the legal profession — had seen the weakness of the government's case against Davis and the handful of Confederates yet being held. One who saw it was the Chief Justice who would rule on their appeal in the event that one was needed, which he doubted. "If you bring these leaders to trial it will condemn the North," Chase had warned his former cabinet colleagues in July, "for by the Constitution secession is not rebellion." As for the rebel chieftain, the authorities would have done better not to apprehend him. "Lincoln wanted Jefferson Davis to escape, and he was right. His capture was a mistake. His trial will be a greater one. We cannot convict him of treason. Secession is settled. Let it stay settled."

    Given how often that quote is repeated, without citing a verifiable source, I'm dubious that Chase ever said that. I haven't seen anything that indicates Chase believed that "secession is not rebellion" at any point, and just two years after he supposedly said that, he wrote the majority opinion in White v. Texas (1869), in which he said (my emphasis):

    The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to 'be perpetual.' And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained 'to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?

    But the perpetuity and indissolubility of the Union, by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. Under the Articles of Confederation each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term, that cthe people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence,' and that 'without the States in union, there could be no such political body as the United States.' [12] Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.

    When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.

    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.

    Our conclusion therefore is, that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any act or declaration of any department of the National government, but entirely in accordance with the whole series of such acts and declarations since the first outbreak of the rebellion.

    And:

    [The Texas Military Board], as we have seen, was organized, not for the defence of the State against a foreign invasion, or for its protection against domestic violence, within the meaning of these words as used in the National Constitution, but for the purpose, under the name of defence, of levying war against the United States. This purpose was, undoubtedly, unlawful, for the acts which it contemplated are, within the express definition of the Constitution, treasonable.
    So Chase and the majority of the Supreme Court were on the record, in the most explicit way possible, about the nature of the Confederacy, and (by extension) Davis' actions as head of the Confederate government.

    @shanniereb
     
    Last edited: Apr 20, 2017
  16. diane

    diane Brev. Brig. Gen'l Forum Host

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    Thanks, Andy! I was fixing to look for Chase's opinions - he was personally almost in with the radical Republicans in what the 'late unpleasantness' was and the responsibility of those engaged in it, but he followed what he believed the law meant. I think if Lincoln had not been assassinated, Davis would indeed have been allowed to leave the country. The only trouble with that scenario was Davis didn't consider the Confederacy to be dead and thought it might continue in the Trans-Mississippi or Mexico or even Cuba. I wonder what the majority opinion would have been in that case, or if Davis would have been tried in absentia...well, there's a whole case of canned worms in that what-if!

    It seems to me that most (not all!) of the generals who prosecuted the war were more than happy to be paroled, take their oaths of allegiance, have their citizenship and rights restored and to get on with their lives. But some, like Forrest, took the rebellion underground - I do wonder what would have happened if Davis had indeed been allowed to escape. It's also interesting to note that once he was taken completely out of the picture no one stepped in to fill his vacancy and lead whatever was left of the Confederacy. Lee or Forrest might have been the only ones of sufficient stature to do that immediately after the war - Lee was stick-a-fork-in-him DONE with fighting for anything and Forrest's native common sense kicked in soon enough to save him. He didn't know it right off like Lee did, but he was done with fighting too. Jo Shelby ended up mostly alone in Mexico looking around for his compadres...who didn't show. He was part of the let's-take-Mexico crowd but that fizzled flat as a three day old beer.
     
  17. AndyHall

    AndyHall Colonel Forum Host

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    Diane, your post deserves a longer answer, but I will give what I can while waiting for the rental car people.

    Everything I've read about Texas in the Trans Mississippi in the spring of 1865 suggests to me that by that time there was zero interest on the part of Confederate soldiers to continue the struggle. They were tired, they were fed up, and they really only wanted to go home. They really did believe that they had given everything they had, and more. Kirby Smith's command simply melted away in April and May of that year. Yes, they went home and within a few years some of them joined insurgent groups like the Klan, but they were done, finished, over with organized soldiering. By the end, Jefferson Davis was running with a vision of continuing the struggle that bordered on being delusional.
     
    Last edited: Apr 20, 2017
  18. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Chase position was that the 14th amendment punished Davis, to try him for treason is to punish Davis twice for the same offense.. Which is not valid.
     
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  19. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Constitutional question will not hunt. I've seen lots of assertions but nothing past that. It like I saw that somewhere, but I am clueless. All of Lincolns actions got blessed. One possible exception was civilians tried by military tribunals, but even then war time is a special case.

    I'd avoid just rhetoric like Defiy Lincoln, you will be eaten alive when you are asked for facts. If this thread is just a Lincoln or Union beating exercise, you will be uncomfortable.
     
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  20. diane

    diane Brev. Brig. Gen'l Forum Host

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    I agree totally with that - many men said exactly what Forrest said to Isham Harris - You may do as you dam please but I'm-a goin' home! That would have been all he had to say about that (Sorry!) except for how things went from worse to worst in Tennessee.

    Davis is a whole different study. He truly believed in America and the principles of the Founders and was red, white and blue through and through. That's why nobody wanted to try Jefferson Davis more than Jefferson Davis. Forrest was right behind him with this - he wanted his side heard about Ft Pillow...and a few other things. Many Confederates really wanted their day in court. Wouldn't the Supremes have been busier than a one legged fire walker then! I'm not going to Godwin the thread but the 20th century has a similar set of trials and they changed things. Big time. Wonder if the "Richmond Trials" might have done the same sort of thing?

    I'm not sure Davis was knocked off his trolley so much as so stubborn as to be deluded. Like he told the people, keep up the fight and we'll prevail. Can't fault him for going down with the ship!
     
  21. wausaubob

    wausaubob Sergeant Major

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    Since the Confederacy was never a foreign nation, Jefferson Davis was never allied with a foreign enemy.
    His offenses were ordinary crimes other than treason.
    Trying him for treason just gives him a pulpit to justify the war and is going to generate lots of fun controversy which has no affect, but can continue for 150 years.
    The issues were settled. Putting the arguments on trial in the newspapers for 2 years only helps Jefferson Davis.
     
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