Why not treason?

[Eric Wittenberg]

It would have been legally, politically, socially and every other "ally" unwise to try Lee for treason. Reconstruction would have been an even bigger mess, bordering on further deconstruction.

Legalities aside, this is absolutely correct, Bart.

 

[theoldman]

I am not a lawyer but I will say this is, imo, the best thread I have seen here on this subject. IMO, JGoodguy hit the nail on the head by saying there was simply 'no political will' to prosecute. The nation was tired and broken and people in charge knew it needed healing. I am sure all were thankful for that. I will only add at that time there was no precedent for what had happened. Good men were trying to do the best they could with what they knew at the time. Hopefully no similar situation will ever arise again.

 

[Northern Light]

There's a good reason why Grant said what he said: the conduct of Lee--and the others--did not constitute treason.

Here is the legal definition of treason. Article III of the Constitution defines the term. "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." Treason requires overt acts and includes the giving of government security secrets to other countries, even if friendly, when the information could harm American security. Treason can include revealing to an antagonistic country secrets such as the design of a bomber being built by a private company for the Defense Department. Treason may include "espionage" (spying for a foreign power or doing damage to the operation of the government and its agencies, particularly involved in security) but is separate and worse than "sedition" which involves a conspiracy to upset the operation of the government.

This is some very useful information that I think answers the question:

The Treason Clause traces its roots back to an English statute enacted during the reign of Edward III (1327–1377). This statute prohibited levying war against the king, adhering to his enemies, or contemplating his death. Although this law defined treason to include disloyal and subversive thoughts, it effectively circumscribed the crime as it existed under the common law. During the thirteenth century, the crime of treason encompassed virtually every act contrary to the king's will and became a political tool of the Crown. Building on the tradition begun by Edward III, the Founding Fathers carefully delineated the crime of treason in Article III of the U.S. Constitution, narrowly defining its elements and setting forth stringent evidentiary requirements.

Under Article III, Section 3, of the Constitution, any person who levies war against the United States or adheres to its enemies by giving them aid and comfort has committed treason within the meaning of the Constitution. The term aid and comfort refers to any act that manifests a betrayal of allegiance to the United States, such as furnishing enemies with arms, troops, transportation, shelter, or classified information. If a subversive act has any tendency to weaken the power of the United States to attack or resist its enemies, aid and comfort has been given.

The Treason Clause applies only to disloyal acts committed during times of war. Acts of dis-loyalty during peacetime are not considered treasonous under the Constitution. Nor do acts of espionage committed on behalf of an ally constitute treason. For example, Julius and Ethel Rosenberg were convicted of espionage, in 1951, for helping the Soviet Union steal atomic secrets from the United States during World War II. The Rosenbergs were not tried for treason because the United States and the Soviet Union were allies during World War II.

Under Article III a person can levy war against the United States without the use of arms, weapons, or military equipment. Persons who play only a peripheral role in a conspiracy to levy war are still considered traitors under the Constitution if an armed rebellion against the United States results. After the U.S. Civil War, for example, all Confederate soldiers were vulnerable to charges of treason, regardless of their role in the secession or insurrection of the Southern states. No treason charges were filed against these soldiers, however, because President Andrew Johnson issued a universal amnesty.

The crime of treason requires a traitorous intent. If a person unwittingly or unintentionally gives aid and comfort to an enemy of the United States during wartime, treason has not occurred. Similarly, a person who pursues a course of action that is intended to benefit the United States but mistakenly helps an enemy is not guilty of treason. Inadvertent disloyalty is never punishable as treason, no matter how much damage the United States suffers.

As in any other criminal trial in the United States, a defendant charged with treason is presumed innocent until proved guilty beyond a reasonable doubt. Treason may be proved by a voluntary confession in open court or by evidence that the defendant committed an overt act of treason. Each overt act must be witnessed by at least two people, or a conviction for treason will not stand. By requiring this type of direct evidence, the Constitution minimizes the danger of convicting an innocent person and forestalls the possibility of partisan witch-hunts waged by a single adversary.

Unexpressed seditious thoughts do not constitute treason, even if those thoughts contemplate a bloody revolution or coup. Nor does the public expression of subversive opinions, including vehement criticism of the government and its policies, constitute treason. The First Amendment to the U.S. Constitution guarantees the right of all Americans to advocate the violent overthrow of their government unless such advocacy is directed toward inciting imminent lawless action and is likely to produce it (Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]). On the other hand, the U.S. Supreme Court ruled that the distribution of leaflets protesting the draft during World War I was not constitutionally protected speech (Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]).

Because treason involves the betrayal of allegiance to the United States, a person need not be a U.S. citizen to commit treason under the Constitution. Persons who owe temporary allegiance to the United States can commit treason. Aliens who are domiciliaries of the United States, for example, can commit traitorous acts during the period of their domicile. A subversive act does not need to occur on U.S. soil to be punishable as treason. For example, Mildred Gillars, a U.S. citizen who became known as Axis Sally, was convicted of treason for broadcasting demoralizing propaganda to Allied forces in Europe from a Nazi radio station in Germany during World War II.

Treason is punishable by death. If a death sentence is not imposed, defendants face a minimum penalty of five years in prison and a $10,000 fine (18 U.S.C.A. § 2381). A person who is convicted of treason may not hold federal office at any time thereafter.

This remains an open question. No court ever ruled on it, and Johnson's amnesty made it a moot point. As a lawyer who deals in these questions, I don't believe that the intent of the Framers was for the treason clause to cover internal rebellion, and I doubt that the Supreme Court would have found that internal rebellion constituted treason. Treason is intended to apply to foreign enemies, not internal rebellion. Hence, had the amnesty not been issued, I seriously doubt that Lee would ever have been convicted.

Do I understand, then, from what you have stated, that treason was not committed because the United States did not acknowledge the Confederacy as a legal nation and therefore those who fought for the Confederacy were merely in open rebellion against the Union?

 

[jgoodguy]

There's a good reason why Grant said what he said: the conduct of Lee--and the others--did not constitute treason.

Here is the legal definition of treason. Article III of the Constitution defines the term. "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." Treason requires overt acts and includes the giving of government security secrets to other countries, even if friendly, when the information could harm American security. Treason can include revealing to an antagonistic country secrets such as the design of a bomber being built by a private company for the Defense Department. Treason may include "espionage" (spying for a foreign power or doing damage to the operation of the government and its agencies, particularly involved in security) but is separate and worse than "sedition" which involves a conspiracy to upset the operation of the government.

This is some very useful information that I think answers the question:

The Treason Clause traces its roots back to an English statute enacted during the reign of Edward III (1327–1377). This statute prohibited levying war against the king, adhering to his enemies, or contemplating his death. Although this law defined treason to include disloyal and subversive thoughts, it effectively circumscribed the crime as it existed under the common law. During the thirteenth century, the crime of treason encompassed virtually every act contrary to the king's will and became a political tool of the Crown. Building on the tradition begun by Edward III, the Founding Fathers carefully delineated the crime of treason in Article III of the U.S. Constitution, narrowly defining its elements and setting forth stringent evidentiary requirements.

Under Article III, Section 3, of the Constitution, any person who levies war against the United States or adheres to its enemies by giving them aid and comfort has committed treason within the meaning of the Constitution. The term aid and comfort refers to any act that manifests a betrayal of allegiance to the United States, such as furnishing enemies with arms, troops, transportation, shelter, or classified information. If a subversive act has any tendency to weaken the power of the United States to attack or resist its enemies, aid and comfort has been given.

The Treason Clause applies only to disloyal acts committed during times of war. Acts of dis-loyalty during peacetime are not considered treasonous under the Constitution. Nor do acts of espionage committed on behalf of an ally constitute treason. For example, Julius and Ethel Rosenberg were convicted of espionage, in 1951, for helping the Soviet Union steal atomic secrets from the United States during World War II. The Rosenbergs were not tried for treason because the United States and the Soviet Union were allies during World War II.

Under Article III a person can levy war against the United States without the use of arms, weapons, or military equipment. Persons who play only a peripheral role in a conspiracy to levy war are still considered traitors under the Constitution if an armed rebellion against the United States results. After the U.S. Civil War, for example, all Confederate soldiers were vulnerable to charges of treason, regardless of their role in the secession or insurrection of the Southern states. No treason charges were filed against these soldiers, however, because President Andrew Johnson issued a universal amnesty.

The crime of treason requires a traitorous intent. If a person unwittingly or unintentionally gives aid and comfort to an enemy of the United States during wartime, treason has not occurred. Similarly, a person who pursues a course of action that is intended to benefit the United States but mistakenly helps an enemy is not guilty of treason. Inadvertent disloyalty is never punishable as treason, no matter how much damage the United States suffers.

As in any other criminal trial in the United States, a defendant charged with treason is presumed innocent until proved guilty beyond a reasonable doubt. Treason may be proved by a voluntary confession in open court or by evidence that the defendant committed an overt act of treason. Each overt act must be witnessed by at least two people, or a conviction for treason will not stand. By requiring this type of direct evidence, the Constitution minimizes the danger of convicting an innocent person and forestalls the possibility of partisan witch-hunts waged by a single adversary.

Unexpressed seditious thoughts do not constitute treason, even if those thoughts contemplate a bloody revolution or coup. Nor does the public expression of subversive opinions, including vehement criticism of the government and its policies, constitute treason. The First Amendment to the U.S. Constitution guarantees the right of all Americans to advocate the violent overthrow of their government unless such advocacy is directed toward inciting imminent lawless action and is likely to produce it (Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]). On the other hand, the U.S. Supreme Court ruled that the distribution of leaflets protesting the draft during World War I was not constitutionally protected speech (Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]).

Because treason involves the betrayal of allegiance to the United States, a person need not be a U.S. citizen to commit treason under the Constitution. Persons who owe temporary allegiance to the United States can commit treason. Aliens who are domiciliaries of the United States, for example, can commit traitorous acts during the period of their domicile. A subversive act does not need to occur on U.S. soil to be punishable as treason. For example, Mildred Gillars, a U.S. citizen who became known as Axis Sally, was convicted of treason for broadcasting demoralizing propaganda to Allied forces in Europe from a Nazi radio station in Germany during World War II.

Treason is punishable by death. If a death sentence is not imposed, defendants face a minimum penalty of five years in prison and a $10,000 fine (18 U.S.C.A. § 2381). A person who is convicted of treason may not hold federal office at any time thereafter.

This remains an open question. No court ever ruled on it, and Johnson's amnesty made it a moot point. As a lawyer who deals in these questions, I don't believe that the intent of the Framers was for the treason clause to cover internal rebellion, and I doubt that the Supreme Court would have found that internal rebellion constituted treason. Treason is intended to apply to foreign enemies, not internal rebellion. Hence, had the amnesty not been issued, I seriously doubt that Lee would ever have been convicted.

Good info.

Then there was also the 14th amendment impediment. Part of the legal is the political will to prosecute(I am a lay person so I may not have the terms exactly right) important in when political issues are in play and there was both a lack of political will and outright political opposition for prosecution.

One thing I find interesting is that no one of any real importance has been convicted of treason under US law. http://en.wikipedia.org/wiki/List_of_people_convicted_of_treason#United_States and the State convictions are more political than anything else IMHO.

 

[suzenatale]

There's a good reason why Grant said what he said: the conduct of Lee--and the others--did not constitute treason.

Here is the legal definition of treason. Article III of the Constitution defines the term. "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." Treason requires overt acts and includes the giving of government security secrets to other countries, even if friendly, when the information could harm American security. Treason can include revealing to an antagonistic country secrets such as the design of a bomber being built by a private company for the Defense Department. Treason may include "espionage" (spying for a foreign power or doing damage to the operation of the government and its agencies, particularly involved in security) but is separate and worse than "sedition" which involves a conspiracy to upset the operation of the government.

This is some very useful information that I think answers the question:

The Treason Clause traces its roots back to an English statute enacted during the reign of Edward III (1327–1377). This statute prohibited levying war against the king, adhering to his enemies, or contemplating his death. Although this law defined treason to include disloyal and subversive thoughts, it effectively circumscribed the crime as it existed under the common law. During the thirteenth century, the crime of treason encompassed virtually every act contrary to the king's will and became a political tool of the Crown. Building on the tradition begun by Edward III, the Founding Fathers carefully delineated the crime of treason in Article III of the U.S. Constitution, narrowly defining its elements and setting forth stringent evidentiary requirements.

Under Article III, Section 3, of the Constitution, any person who levies war against the United States or adheres to its enemies by giving them aid and comfort has committed treason within the meaning of the Constitution. The term aid and comfort refers to any act that manifests a betrayal of allegiance to the United States, such as furnishing enemies with arms, troops, transportation, shelter, or classified information. If a subversive act has any tendency to weaken the power of the United States to attack or resist its enemies, aid and comfort has been given.

The Treason Clause applies only to disloyal acts committed during times of war. Acts of dis-loyalty during peacetime are not considered treasonous under the Constitution. Nor do acts of espionage committed on behalf of an ally constitute treason. For example, Julius and Ethel Rosenberg were convicted of espionage, in 1951, for helping the Soviet Union steal atomic secrets from the United States during World War II. The Rosenbergs were not tried for treason because the United States and the Soviet Union were allies during World War II.

Under Article III a person can levy war against the United States without the use of arms, weapons, or military equipment. Persons who play only a peripheral role in a conspiracy to levy war are still considered traitors under the Constitution if an armed rebellion against the United States results. After the U.S. Civil War, for example, all Confederate soldiers were vulnerable to charges of treason, regardless of their role in the secession or insurrection of the Southern states. No treason charges were filed against these soldiers, however, because President Andrew Johnson issued a universal amnesty.

The crime of treason requires a traitorous intent. If a person unwittingly or unintentionally gives aid and comfort to an enemy of the United States during wartime, treason has not occurred. Similarly, a person who pursues a course of action that is intended to benefit the United States but mistakenly helps an enemy is not guilty of treason. Inadvertent disloyalty is never punishable as treason, no matter how much damage the United States suffers.

As in any other criminal trial in the United States, a defendant charged with treason is presumed innocent until proved guilty beyond a reasonable doubt. Treason may be proved by a voluntary confession in open court or by evidence that the defendant committed an overt act of treason. Each overt act must be witnessed by at least two people, or a conviction for treason will not stand. By requiring this type of direct evidence, the Constitution minimizes the danger of convicting an innocent person and forestalls the possibility of partisan witch-hunts waged by a single adversary.

Unexpressed seditious thoughts do not constitute treason, even if those thoughts contemplate a bloody revolution or coup. Nor does the public expression of subversive opinions, including vehement criticism of the government and its policies, constitute treason. The First Amendment to the U.S. Constitution guarantees the right of all Americans to advocate the violent overthrow of their government unless such advocacy is directed toward inciting imminent lawless action and is likely to produce it (Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]). On the other hand, the U.S. Supreme Court ruled that the distribution of leaflets protesting the draft during World War I was not constitutionally protected speech (Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]).

Because treason involves the betrayal of allegiance to the United States, a person need not be a U.S. citizen to commit treason under the Constitution. Persons who owe temporary allegiance to the United States can commit treason. Aliens who are domiciliaries of the United States, for example, can commit traitorous acts during the period of their domicile. A subversive act does not need to occur on U.S. soil to be punishable as treason. For example, Mildred Gillars, a U.S. citizen who became known as Axis Sally, was convicted of treason for broadcasting demoralizing propaganda to Allied forces in Europe from a Nazi radio station in Germany during World War II.

Treason is punishable by death. If a death sentence is not imposed, defendants face a minimum penalty of five years in prison and a $10,000 fine (18 U.S.C.A. § 2381). A person who is convicted of treason may not hold federal office at any time thereafter.

This remains an open question. No court ever ruled on it, and Johnson's amnesty made it a moot point. As a lawyer who deals in these questions, I don't believe that the intent of the Framers was for the treason clause to cover internal rebellion, and I doubt that the Supreme Court would have found that internal rebellion constituted treason. Treason is intended to apply to foreign enemies, not internal rebellion. Hence, had the amnesty not been issued, I seriously doubt that Lee would ever have been convicted.

Okay, but what about John Brown?

 

[Quara]

.

Okay, but what about John Brown?

John Brown was convicted of treason against the commonwealth of Virginia, not against the United States, so slightly different statutes may apply. (http://www.lva.virginia.gov/exhibits/DeathLiberty/johnbrown/)

Also, you could argue that John Brown's trial was not a good thing for national unity.

 

[cash]

There's a good reason why Grant said what he said: the conduct of Lee--and the others--did not constitute treason.

Here is the legal definition of treason. Article III of the Constitution defines the term. "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." Treason requires overt acts and includes the giving of government security secrets to other countries, even if friendly, when the information could harm American security. Treason can include revealing to an antagonistic country secrets such as the design of a bomber being built by a private company for the Defense Department. Treason may include "espionage" (spying for a foreign power or doing damage to the operation of the government and its agencies, particularly involved in security) but is separate and worse than "sedition" which involves a conspiracy to upset the operation of the government.

This is some very useful information that I think answers the question:

The Treason Clause traces its roots back to an English statute enacted during the reign of Edward III (1327–1377). This statute prohibited levying war against the king, adhering to his enemies, or contemplating his death. Although this law defined treason to include disloyal and subversive thoughts, it effectively circumscribed the crime as it existed under the common law. During the thirteenth century, the crime of treason encompassed virtually every act contrary to the king's will and became a political tool of the Crown. Building on the tradition begun by Edward III, the Founding Fathers carefully delineated the crime of treason in Article III of the U.S. Constitution, narrowly defining its elements and setting forth stringent evidentiary requirements.

Under Article III, Section 3, of the Constitution, any person who levies war against the United States or adheres to its enemies by giving them aid and comfort has committed treason within the meaning of the Constitution. The term aid and comfort refers to any act that manifests a betrayal of allegiance to the United States, such as furnishing enemies with arms, troops, transportation, shelter, or classified information. If a subversive act has any tendency to weaken the power of the United States to attack or resist its enemies, aid and comfort has been given.

The Treason Clause applies only to disloyal acts committed during times of war. Acts of dis-loyalty during peacetime are not considered treasonous under the Constitution. Nor do acts of espionage committed on behalf of an ally constitute treason. For example, Julius and Ethel Rosenberg were convicted of espionage, in 1951, for helping the Soviet Union steal atomic secrets from the United States during World War II. The Rosenbergs were not tried for treason because the United States and the Soviet Union were allies during World War II.

Under Article III a person can levy war against the United States without the use of arms, weapons, or military equipment. Persons who play only a peripheral role in a conspiracy to levy war are still considered traitors under the Constitution if an armed rebellion against the United States results. After the U.S. Civil War, for example, all Confederate soldiers were vulnerable to charges of treason, regardless of their role in the secession or insurrection of the Southern states. No treason charges were filed against these soldiers, however, because President Andrew Johnson issued a universal amnesty.

The crime of treason requires a traitorous intent. If a person unwittingly or unintentionally gives aid and comfort to an enemy of the United States during wartime, treason has not occurred. Similarly, a person who pursues a course of action that is intended to benefit the United States but mistakenly helps an enemy is not guilty of treason. Inadvertent disloyalty is never punishable as treason, no matter how much damage the United States suffers.

As in any other criminal trial in the United States, a defendant charged with treason is presumed innocent until proved guilty beyond a reasonable doubt. Treason may be proved by a voluntary confession in open court or by evidence that the defendant committed an overt act of treason. Each overt act must be witnessed by at least two people, or a conviction for treason will not stand. By requiring this type of direct evidence, the Constitution minimizes the danger of convicting an innocent person and forestalls the possibility of partisan witch-hunts waged by a single adversary.

Unexpressed seditious thoughts do not constitute treason, even if those thoughts contemplate a bloody revolution or coup. Nor does the public expression of subversive opinions, including vehement criticism of the government and its policies, constitute treason. The First Amendment to the U.S. Constitution guarantees the right of all Americans to advocate the violent overthrow of their government unless such advocacy is directed toward inciting imminent lawless action and is likely to produce it (Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]). On the other hand, the U.S. Supreme Court ruled that the distribution of leaflets protesting the draft during World War I was not constitutionally protected speech (Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]).

Because treason involves the betrayal of allegiance to the United States, a person need not be a U.S. citizen to commit treason under the Constitution. Persons who owe temporary allegiance to the United States can commit treason. Aliens who are domiciliaries of the United States, for example, can commit traitorous acts during the period of their domicile. A subversive act does not need to occur on U.S. soil to be punishable as treason. For example, Mildred Gillars, a U.S. citizen who became known as Axis Sally, was convicted of treason for broadcasting demoralizing propaganda to Allied forces in Europe from a Nazi radio station in Germany during World War II.

Treason is punishable by death. If a death sentence is not imposed, defendants face a minimum penalty of five years in prison and a $10,000 fine (18 U.S.C.A. § 2381). A person who is convicted of treason may not hold federal office at any time thereafter.

This remains an open question. No court ever ruled on it, and Johnson's amnesty made it a moot point. As a lawyer who deals in these questions, I don't believe that the intent of the Framers was for the treason clause to cover internal rebellion, and I doubt that the Supreme Court would have found that internal rebellion constituted treason. Treason is intended to apply to foreign enemies, not internal rebellion. Hence, had the amnesty not been issued, I seriously doubt that Lee would ever have been convicted.

While no court specifically ruled on a specific person, the Supreme Court does to this layman appear to differ:

The Prize Cases:
"Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the Government. A civil war is never solemnly declared; it becomes such by its accidents — the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory, have declared their independence, have cast off their allegiance, have organized armies, have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war. They claim to be in arms to establish their liberty and independence, in order to become a sovereign State, while the sovereign party treats them as insurgents and rebels who owe allegiance, and who should be punished with death for their treason.
"The laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war. Hence the parties to a civil war usually concede to each other belligerent rights. They exchange prisoners, and adopt the other courtesies and rules common to public or national wars.
"A civil war," says Vattel, breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as constituting, at least for a time, two separate bodies, two distinct societies. Having no common superior to judge between them, they stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms.
"This being the case, it is very evident that the common laws of war — those maxims of humanity, moderation, and honor — ought to be observed by both parties in every civil war. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals, &c., & c.; the war will become cruel, horrible, and every day more destructive to the nation.
"As a civil war is never publicly proclaimed, eo nomine, against insurgents, its actual existence is a fact in our domestic history which the Court is bound to notice and to know.
"The true test of its existence, as found in the writings of the sages of the common law, may be thus summarily stated:
"When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land." [67 US 635, 666-668]
"This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.
"It is not the less a civil war, with belligerent parties in hostile array, because it may be called an "insurrection" by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or State be acknowledged in order to constitute it a party belligerent in a war according to the law of nations. Foreign nations acknowledge it as war by a declaration of neutrality. The condition of neutrality cannot exist unless there be two belligerent parties." [67 US 635, 668-669]

White v. Hart:
"The doctrine of secession is a doctrine of treason, and practical secession is practical treason, seeking to give itself triumph by revolutionary violence. The late rebellion was without any element of right or sanction of law. The duration and magnitude of the war did not change its character. In some respects it was not unlike the insurrection of a county or other municipal subdivision of territory against the State to which it belongs. In such cases the State has inherently the right to use all the means necessary to put down the resistance to its authority, and restore peace, order, and obedience to law. If need be, it has the right also to call on the government of the Union for the requisite aid to that end. Whatever precautionary or penal measures the State may take when the insurrection is suppressed, the proposition would be a strange one to maintain, that while it lasted the county was not a part of the State, and hence was absolved from the duties, liabilities, and restrictions which would have been incumbent upon it if it had remained in its normal condition and relations. The power exercised in putting down the late rebellion is given expressly by the Constitution to Congress. That body made the laws and the President executed them. The granted power carried with it not only the right to use the requisite means, but it reached further and carried with it also the authority to guard against the renewal of the conflict, and to remedy the evils arising from it in so far as that could be effected by appropriate legislation. At no time were the rebellious States out of the pale of the Union. Their rights under the Constitution were suspended, but not destroyed. Their constitutional duties and obligations were unaffected and remained the same." [80 US 646, 650-651]

In his opinion in US v. Burr, Chief Justice John Marshall wrote, "That part of his deposition which bears upon this charge is the plan disclosed by the prisoner for seizing upon New Orleans, and revolutionizing the Western states. That this plan, if consummated by overt acts, would amount to treason, no man will controvert." [25 Fed. Cas. 13] He seems to be saying, in my most un-expert opinion, that instance of internal rebellion would be treason.

James G. Randall considered the Treason Law in a chapter of his book, Constitutional Problems Under Lincoln: "By judicial interpretation a fairly definite body of principles came gradually to be built up around the general subject of treason. 'Constructive treason' was eliminated. There must be an actual levying of war. A mere plotting, gathering of arms, or assemblage of men is not treason. The overt act of treason must be proved before collateral testimony can be admitted tending to connect a particular person with such treasonable activity.

"The 'levying war' includes not only formal or declared war, but also any combination to interfere by force with the execution of any law of the United States. An insurrection to obstruct the execution of an act of Congress is treason, since it amounts to levying war. Enlisting, or procuring enlistment in the enemy's service, is treason; though persuading men to enlist is not, unless consummated by actual enlistment. The mere uttering of words bearing a treasonable import does not constitute the crime. Mere expressions of sympathy with the enemy, although sufficient to justify the suspicion that one is at heart a traitor, are not sufficient to warrant conviction for treason." [pp. 75-76]

The US Congress in 1862 also appears to differ. For example, the official title of the Second Confiscation Act is, "An Act to Suppress Insurrection; to punish Treason and Rebellion, to seize and confiscate the Property of Rebels, and for other purposes."

In the case of US v. Jefferson Davis, Chief Justice Salmon Chase said that the 14th Amendment had already punished Jefferson Davis for treason, and therefore he couldn't be tried for treason because it would be double jeopardy. He appears to differ.

I don't know of any authorities who have said treason does not apply to an internal rebellion.

 

[jgoodguy]

While no court specifically ruled on a specific person, the Supreme Court does to this layman appear to differ:

The Prize Cases:
"Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the Government. A civil war is never solemnly declared; it becomes such by its accidents — the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory, have declared their independence, have cast off their allegiance, have organized armies, have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war. They claim to be in arms to establish their liberty and independence, in order to become a sovereign State, while the sovereign party treats them as insurgents and rebels who owe allegiance, and who should be punished with death for their treason.
"The laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war. Hence the parties to a civil war usually concede to each other belligerent rights. They exchange prisoners, and adopt the other courtesies and rules common to public or national wars.
"A civil war," says Vattel, breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as constituting, at least for a time, two separate bodies, two distinct societies. Having no common superior to judge between them, they stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms.
"This being the case, it is very evident that the common laws of war — those maxims of humanity, moderation, and honor — ought to be observed by both parties in every civil war. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals, &c., & c.; the war will become cruel, horrible, and every day more destructive to the nation.
"As a civil war is never publicly proclaimed, eo nomine, against insurgents, its actual existence is a fact in our domestic history which the Court is bound to notice and to know.
"The true test of its existence, as found in the writings of the sages of the common law, may be thus summarily stated:
"When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land." [67 US 635, 666-668]
"This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.
"It is not the less a civil war, with belligerent parties in hostile array, because it may be called an "insurrection" by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or State be acknowledged in order to constitute it a party belligerent in a war according to the law of nations. Foreign nations acknowledge it as war by a declaration of neutrality. The condition of neutrality cannot exist unless there be two belligerent parties." [67 US 635, 668-669]

White v. Hart:
"The doctrine of secession is a doctrine of treason, and practical secession is practical treason, seeking to give itself triumph by revolutionary violence. The late rebellion was without any element of right or sanction of law. The duration and magnitude of the war did not change its character. In some respects it was not unlike the insurrection of a county or other municipal subdivision of territory against the State to which it belongs. In such cases the State has inherently the right to use all the means necessary to put down the resistance to its authority, and restore peace, order, and obedience to law. If need be, it has the right also to call on the government of the Union for the requisite aid to that end. Whatever precautionary or penal measures the State may take when the insurrection is suppressed, the proposition would be a strange one to maintain, that while it lasted the county was not a part of the State, and hence was absolved from the duties, liabilities, and restrictions which would have been incumbent upon it if it had remained in its normal condition and relations. The power exercised in putting down the late rebellion is given expressly by the Constitution to Congress. That body made the laws and the President executed them. The granted power carried with it not only the right to use the requisite means, but it reached further and carried with it also the authority to guard against the renewal of the conflict, and to remedy the evils arising from it in so far as that could be effected by appropriate legislation. At no time were the rebellious States out of the pale of the Union. Their rights under the Constitution were suspended, but not destroyed. Their constitutional duties and obligations were unaffected and remained the same." [80 US 646, 650-651]

In his opinion in US v. Burr, Chief Justice John Marshall wrote, "That part of his deposition which bears upon this charge is the plan disclosed by the prisoner for seizing upon New Orleans, and revolutionizing the Western states. That this plan, if consummated by overt acts, would amount to treason, no man will controvert." [25 Fed. Cas. 13] He seems to be saying, in my most un-expert opinion, that instance of internal rebellion would be treason.

James G. Randall considered the Treason Law in a chapter of his book, Constitutional Problems Under Lincoln: "By judicial interpretation a fairly definite body of principles came gradually to be built up around the general subject of treason. 'Constructive treason' was eliminated. There must be an actual levying of war. A mere plotting, gathering of arms, or assemblage of men is not treason. The overt act of treason must be proved before collateral testimony can be admitted tending to connect a particular person with such treasonable activity.

"The 'levying war' includes not only formal or declared war, but also any combination to interfere by force with the execution of any law of the United States. An insurrection to obstruct the execution of an act of Congress is treason, since it amounts to levying war. Enlisting, or procuring enlistment in the enemy's service, is treason; though persuading men to enlist is not, unless consummated by actual enlistment. The mere uttering of words bearing a treasonable import does not constitute the crime. Mere expressions of sympathy with the enemy, although sufficient to justify the suspicion that one is at heart a traitor, are not sufficient to warrant conviction for treason." [pp. 75-76]

The US Congress in 1862 also appears to differ. For example, the official title of the Second Confiscation Act is, "An Act to Suppress Insurrection; to punish Treason and Rebellion, to seize and confiscate the Property of Rebels, and for other purposes."

In the case of US v. Jefferson Davis, Chief Justice Salmon Chase said that the 14th Amendment had already punished Jefferson Davis for treason, and therefore he couldn't be tried for treason because it would be double jeopardy. He appears to differ.

I don't know of any authorities who have said treason does not apply to an internal rebellion.

A bit of quibble, Chase did not differ, just that the charge of treason could not be brought for technical reasons. Davis et. al. had been convicted of treason by legislative fiat and the judicial trial was not constitutional.

There was another opinion possible.
THE 14th AMENDMENT IN THE TRIAL OF JEFFERSON DAVIS Page 1167

Section 3 can be interpreted as a criminal sanction for engaging in
rebellion; that is, the inability to hold public office can arguably be seen
as a penal sanction imposed by the government for the act of
insurrection. It can also be seen as a disability imposed on those who
had taken an oath and then violated the oath.11 If found to be a
punishment as opposed to a mere disqualification, similar to
disqualifications such as age and foreign birth, Section 3 of the
Fourteenth Amendment would bar any other criminal prosecution for
rebellion by virtue of the double jeopardy clause of the United States
Constitution.12 In the legal proceedings that came to be known as United
States v. Jefferson Davis, a legal determination was required to
determine whether or not Section 3 imposed a simple disqualification or
an actual punishment.13 In 1868, a preliminary ruling in favor of the
criminal sanction argument was utilized for the benefit of a most
unlikely party – namely, Jefferson Davis.14 Could those who pushed for
the adoption of the Fourteenth Amendment, those who some historians
consider the last vestiges of the abolitionist movement, have foreseen
that a section of the Amendment enacted to guarantee the rights of freed
blacks would be used to free the man who symbolized the slaveocracy
that they so despised?15 And moreover, could they have foreseen that
the person who utilized this untended consequence would be Salmon P.
Chase, one of the primary architects of anti-slavery litigation?

Chase chose the penal interpretation. IMHO for political reasons.

IMHO this illustrates why technical analysis of treason has a problem that the effective prosecution is politically motivated and not legal.

 

[cash]

A bit of quibble, Chase did not differ, just that the charge of treason could not be brought for technical reasons. Davis et. al. had been convicted of treason by legislative fiat and the judicial trial was not constitutional.

Had Chase not differed, he would simply have ruled that treason was not a charge that could be brought in an internal rebellion. There would have been no need for all the machinations.

 

[jgoodguy]

Had Chase not differed, he would simply have ruled that treason was not a charge that could be brought in an internal rebellion. There would have been no need for all the machinations.

Or Chase did not differ, but did not want to make a ruling. I believe that the evidence shows that Chase had political ambitions and a treason trial would impair that. The 14th machination allows him not to rule.

 

[cash]

Or Chase did not differ, but did not want to make a ruling. I believe that the evidence shows that Chase had political ambitions and a treason trial would impair that. The 14th machination allows him not to rule.

Once again, if Chase agreed that the treason clause did not apply to internal rebellion he could simply make that ruling and dismiss all charges. No treason trial. No need for the machinations about the 14th Amendment. They are ONLY needed if he believed treason applied to internal rebellion.

 

[suzenatale]

This remains an open question. No court ever ruled on it, and Johnson's amnesty made it a moot point. As a lawyer who deals in these questions, I don't believe that the intent of the Framers was for the treason clause to cover internal rebellion, and I doubt that the Supreme Court would have found that internal rebellion constituted treason. Treason is intended to apply to foreign enemies, not internal rebellion. Hence, had the amnesty not been issued, I seriously doubt that Lee would ever have been convicted.

Also what about William Mumford?

 

[Copperhead-mi]

The Treason Clause applies only to disloyal acts committed during times of war. Acts of dis-loyalty during peacetime are not considered treasonous under the Constitution. Nor do acts of espionage committed on behalf of an ally constitute treason. For example, Julius and Ethel Rosenberg were convicted of espionage, in 1951, for helping the Soviet Union steal atomic secrets from the United States during World War II. The Rosenbergs were not tried for treason because the United States and the Soviet Union were allies during World War II.

If I'm reading this entire post correctly then none of the leaders of the Confederate government or military could be charged with treason since the Civil War was an internal rebellion and not a war between two sovereigns? I don't recall this being an issue during the 1798 treason trial of tax resistor John Fries or the 1807 Aaron Burr treason trial where they were both charged with levying war against the United States. The United States was not at war with anyone when Fries' treasonous acts were committed-- he was convicted-- or when Burr's alleged treasonous acts were committed. Then again, maybe I'm just reading your post wrong.

 

[jgoodguy]

Also what about William Mumford?

Mumford was tried before a military tribunal not a civilian court.

It is a good example why I think discussing the legal technicalities of treason is an exercise in futility. Treason is ultimately a political crime prosecuted and punished at the whim of the sovereign inconsistently, capriciously and prejudicially.

Like secession, treason is a crime only upon defeat.

 

[5fish]

Here's a Bio on the Judge Underwood....a good Radical Republican

http://en.wikipedia.org/wiki/John_Curtiss_Underwood

 

[5fish]

The link is to the correspondence between Lee and Grant about the indictment...

http://leearchive.wlu.edu/reference/books/hamilton/14.html

 

[jgoodguy]

If I'm reading this entire post correctly then none of the leaders of the Confederate government or military could be charged with treason since the Civil War was an internal rebellion and not a war between two sovereigns? I don't recall this being an issue during the 1798 treason trial of tax resistor John Fries or the 1807 Aaron Burr treason trial where they were both charged with levying war against the United States. The United States was not at war with anyone when Fries' treasonous acts were committed-- he was convicted-- or when Burr's alleged treasonous acts were committed. Then again, maybe I'm just reading your post wrong.

One more example of the political nature of Treason.

From the wiki

Thirty men went on trial in Federal court. Fries and two others were tried for treason and, with Federalists stirring up a frenzy, were sentenced to be hanged. President John Adams pardoned Fries and others convicted of treason. Adams was prompted by the narrower constitutional definition of treason, and he later added that the rebels were "as ignorant of our language as they were of our laws" and were being used by "great men" in the opposition party. He issued a general amnesty for everyone involved on May 21, 1800.[7]

From John Fries Rebellion Part 2: The Trial
Part 4: Judge James Iredell's Opening Statement

The trial was a political farce from the beginning, filled with high emotion. Fries was probably guilty of the Sedition Act, but the government took the position that this Act was comparable to treason and the penalty outlined by the Congress in the act was not severe enough. The charge to the Grand Jury had set the tenor of this trial: either find Fries guilty, or the government may go down!
...
Fries was the scapegoat of the times. Someone had to pay the price for this insurrection, and Fries was the man. This tax was unwarranted and there never was a war with France. The tax money was never returned to the people and it is not surprising that this whole area voted against Adams and for Jefferson - an admitted Francophile.


This was the first case of treason tried under the notorious Sedition and Alien Acts. Fries resided in an almost completely German area, where many of the people were considered aliens. Contact with the outside area was little and most communication was in German. A German newspaper in circulation, was printed in Milford. These people were endowed with a great sense of liberty. They deeply resented the Tories that were in their midst. Most of these Germans had fought in the Revolution and they were always aware of the fact that families such as the Foulkes and the Roberts had not fought for the nation's independence. The term "stampler" which inferred that one was favorable to the actions of the government did not come into existence until 1798. It was conferred on any government sympathizer especially the Quakers in the area. It is interesting that the Germans felt that Foulke, a Quaker, was an assessor only for the money and that his sense of justice could be bought by the government. The Germans who had been welcomed into an English colony had brought embarrassment and trouble. Fries would pay for this and set an example.

Judge Samuel Chase would later be impeached and stand trial for the charges of high misdemeanors. It was alleged that too many times he sat on the bench in a state of intoxication. His lawyer was Aaron Burr, who defended him successfully. There was little prestige to holding a position on the Supreme Court at that time. Chase refused to resign after the trial, but afterwards judged only unimportant cases

Note the impeachments of Samuel Chase were politically motivated and rejected by large majorities.
I could not quickly verify the intoxication charge, but the fellow had some grey areas in his life.

Samuel Chase - History of the Federal Judiciary

In the spring of 1800, when the judiciary was at the center of partisan conflicts, Chase inflamed Republicans with his abrasive personality and his aggressive intervention in trials. As circuit justice presiding in the trial of Thomas Cooper, Justice Chase offered the jury arguments in favor of Cooper's conviction. A month later he presided over the retrial of John Fries, leader of an anti-tax insurrection, and so restricted the conduct of the defense attorneys that they quit the case. In the circuit court for Delaware, Chase coerced the district attorney and the grand jury into considering an indictment of a Republican printer he suspected of seditious libel. During the Callender trial, Chase barred the key defense witness and made it virtually impossible for the defense lawyers to establish the truth of Callender's writings.