Much is often made of the fact that after the Civil War the United States government decided not to try Jefferson Davis for treason. It’s a decision well worth exploring in part because of the misperceptions involved and the incorrect conclusions that some draw from this decision.
In the spring of 1865, the new president, Andrew Johnson, was all in favor of trying Confederate civil and military leaders from what he expressly (and repeatedly) called the act of committing treason. Johnson’s efforts to prosecute military leaders was curtailed by Ulysses S. Grant, who placed himself in the way of an attempt to try Robert E. Lee (and other Confederate military leaders) for treason after they had been indicted by a grand jury in Norfolk, Virginia. However, it was left to Johnson to do what he wanted to do concerning Davis, who remained incarcerated at Fort Monroe, Virginia.
The first question was how Davis would be tried. Would he be tried by military commission or the civil courts? Were the federal civil courts even in operation in Virginia? If not, a military commission was a viable option … or so it seemed until the Supreme Court ruled in ex parte Milligan (1866) that military commissions could not operate in areas where civil courts were open.
Salmon P. Chase, Chief Justice of the United States, had concurred in that decision (although the minority opinion he framed opined that Congress, as opposed to the president, could make such a determination concerning whether the civil courts were open). He was also in charge of the First District Court in Virginia (Supreme Court justices did double duty in those days), and he had refused to hear cases brought forward in federal circuit court until it was clear that his decisions could not be countermanded by military authorities … something he believed depended upon a presidential proclamation setting forth civil supremacy. The chief justice was not satisfied that Johnson’s August 1866 proclamation was sufficient unto that purpose; by that time, furthermore, a glitch in congressional legislation left the matter of circuit court operation in limbo until March 1867.
Chase claimed that other duties precluded him from presiding at what promised to be a long trial; those obligations grew when in 1868 the House of Representatives impeached Johnson, for Chase would have to preside at the resulting Senate trial. Thus it would not be until the summer of 1868 that a trial would have taken place … and by then Johnson’s attorney general, William M. Evarts, believing that no benefit could be derived from a trial, was willing to let Davis walk. So, it turned out, was Andrew Johnson, whose Christmas Day proclamation opened the path to amnesty for Davis.
The above tale shows that prosecuting Davis fell victim to other important concerns, political as well as constitutional. Concerns that a jury might acquit Davis (more likely it would have been a deadlocked jury, although everything rests on where the trial took place and the process of jury selection) seem to have taken a back seat to these other concerns. Johnson found himself caught between his desire to try Davis and his desire to restore civil rule.
One might note Chase’s role in all this. Yes, Chase worried about securing a conviction under such circumstances, or that the resulting punishment might not fit the crime. The debates were not over the abstract issue of treason, but concerned its practical application in court (much the same had been true of an earlier case tried before a chief justice at Richmond some six decades before … the trial of Aaron Burr). But this was the same Salmon P. Chase who within a year of the decision to abandon the case against Davis penned the Court’s opinion in Texas v. White (1869) that the United States was “an indestructible Union of indestructible states.” As he explained:
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.
One must take together Chase’s actions in both cases to discern what he believed he was doing. He did not recognize a right of secession as practiced in 1860-61 (although he highlighted two ways in which the Union might well be dissolved). To him, that was the important question to be answered, and having answered that, it made little difference what happened to Jefferson Davis at a time when Chase was more interested in restoring civil authority and supremacy in the court system.
Crossroads 
A very solid analysis. On the most simplistic level, there is always a fundamental distinction between (1) the decision to prosecute a crime and(2) the decision whether there has in fact been a crime which could be prosecuted. Particularly in the highly political/pragmatic context of the aftermath of the clear Union victory, the basic objective having been secured, whether to launch a series of prosecutions for treason was a difficult decision informed by any number of extra-legal considerations – bringing the seceded states back into the fold, “reconciliation”, Chase’s own ambitions, etc. Even in an era in which criminal trials and appeals moved at warp speed compared to today’s process, the country would have been tied up with these divisive proceedings. Only those who just don’t get the difference think that the lack of prosecutions “proves” that secession was lawful or that Americans who fired on a federal military installation and engaged in armed conflict against the U.S. Army and the Government had not committed treason. In addition, there were other pragmatic issues. Chase and the federal district judge in that district, Underwood, were at odds on certain legal aspects of the Davis case which, in the practice of the day, could well have resulted in the case having to go before the Supreme Court – an unappetizing prospect for Chase. The prosecution was also woefully unprepared and yet, inconsistently, had opted to indict under the 1790 law which required execution, as opposed to using a less draconian wartime measure. Finally, Chase took the view that the disqualification under the Fourteenth Amendment of Davis and others from holding office was a “punishment” and that prosecution for the same acts as treason could violate the Double Jeopardy Clause. In short, as you indicate, the fact that Davis escaped prosecution ain’t hardly proof that secession was constitutional, lawful, or anything similar.
I find Chases’s reasoning about the impact of the disqualifications imposed by the Fourteenth Amendment to be a clever way of saying someone’s been punished, period, whereas you could say that’s not all they get … and Underwood was an eager beaver when it came to prosecutions, suggesting that perhaps Chase wanted to distance himself from Underwood. Folks tend to forget Chase’s role in several key decisions.
I definitely agree with your point about Chase’s reasoning. As for Underwood, there is little question that Chase wanted to distance himself from his district court colleague, who came off as a fire and brimstone wreaker of vengeance. The ad hoc practices of the time regarding individual Supreme Court Justices actually sitting in the district courts reared their head here. as well (as they did in the protracted proceedings involving Merryman).
I think it’s the same reason the IRS never takes Churches to court — because they fear they would lose the illusion of control. Why did prohibition end? Not because it failed, which it did, but because juries stopped convicting.
At the end of the war, the Johnson Administration wanted the best legal counsel possible if it was to try any of the Confederate leadership. The Administration appointed a Special Prosecutor, a man most of us know for a very different reason: Richard Henry Dana, Jr. We read back in junior high his classic sea story, _Two Years Before the Mast_. What we forget is that Dana wrote the book, not as an adventure story for boys, but as an expose on the conditions faced by the common seamen of the 1840s. After completing law school, Dana became a leading attorney defending the less fortunate, whether they were seamen abused by their captains or employers, or accused escaped slaves.
In 1861, President Lincoln appointed Dana as United States Attorney for the District of Massachusetts. As such, in 1863, he successfully defended the United States in the Prize Cases before the United States Supreme Court. These were a group of cases, consolidated on appeal, on the capture of ships attempting to break the blockade of the Confederate ports. The issue argued revolved around two separate issues: was the Rebellion a “war” and when did the “Civil War” begin, in April, 1861, with President Lincoln’s Declaration of a blockade or in the summer when Congress approved what the president had done. The court unanimously ruled in favor of the administration’s position that the Rebellion was a war but more narrowly (5-4) supported the premise that the president’s call for troops on April marked the beginning of the war. Not surprisingly Chief Justice Taney felt that the war could only begin when Congress said it did, very much as he had done in ex parte Merryman [67 U.S. (2 Black) 635, on line at http://www2.law.cornell.edu ]
The first question in any post-war treason trial was, had Davis waged war against the United States? Obviously. Second, where had he waged war? Probably in Virginia. Perhaps in Montgomery.
Well, then, he would have to be tried in Virginia, in the United States District Court for the Eastern District of Virginia. This was the court which, sitting in Richmond, had indicted not only Davis, but also a number of prominent Confederates, including Robert E. Lee. Now the rub: according to Article II, Section 2, Davis, and anyone else, would have to be tried in Virginia, before a jury of Virginians! Remember that no blacks would qualify for a jury in 1865 or 1866, indeed, if would have been hard to empanel a jury, which did not contain either ex-Confederates or Confederate sympathizers. And Dana was very concerned about the ability of the Government to convince twelve Virginians that Davis had committed a crime.
Let Dana, in a letter to Attorney General W.M. Evarts on August 24, 1868, expressed his opinion why there should be no attempt to try Davis (and by extension, any other Confederate) for their activities during the War. The letter is a little long but I think it important to read all of it.
“Sir,
“While preparing with yourself, before you assumed your present post, to perform the honorable duty the President had assigned to us, of conducting the trial of Jefferson Davis, you know how much my mind was moved, from the first, by doubts of the expediency of trying him at all. The reasons which prevented my presenting those doubts no longer exist, and they have so ripened into conviction that I feel it my duty to lay them before you in form, as you now hold a post of official responsibly for the proceeding.
“After the most serious reflection, I cannot see any good reason why the Government should make a question whether the late civil war was treason, and whether Jefferson Davis took any part in it, and submit those questions to the decision of a petit jury of the vicinage of Richmond at _nisi prius_ [“court of original jurisdiction”].
“As the Constitution in terms settles the fact that our republic is a state against which treason may be committed, the only constitutional question attending the late war was whether a levying of war against the United States which would otherwise be treason, is relieved of that character by the fact that it took the form of secession from the Union by state authority. In other words the legal issue was, whether secession by a State is a right, making an act legal and obligatory upon the nation which would otherwise have been treason.
“This issue I suppose to have been settled by the action of every department of the Government, by the action of the people itself, and by those events which are definitive in the affairs of men.
“The Supreme Court in the Prize Causes held, by happily a unanimous opinion, that acts of the States, whether secession ordinances, or in whatever form cast, could not be brought into the cases, as justifications for the war, and had no legal effect on the character of the war, or on the political status of territory or persons or property, and that the line of enemy’s territory was a question of fact, depending upon the line of bayonets of an actual war. The rule in the Prize Causes has been steadily followed in the Supreme Court since, and in the Circuit Courts, without an intimation of a doubt. That the law making and executive departments have treated this secession and war as treason, is matter of history, as well as is the action of the people in the highest sanction of war.
“It cannot be doubted that the Circuit Court at the trial will instruct the jury, in conformity with these decisions, that the late attempt to establish and sustain by war an independent empire within the United States was treason. The only question of fact submitted to the Jury will be whether Jefferson Davis took any part in the war. As it is one of the great facts of history that he was its head, civil and military, why should we desire to make a question of it and refer its decision to a jury, with power to find in the negative or affirmative, or to disagree? It is not an appropriate question for the decision of a jury; certainly it is not a fact which a Government should, without great cause, give a jury a chance to ignore.
“We know that these indictments are to be tried in what was for five years enemy’s territory, which is not yet restored to the exercise of all its political functions, and where the fires are not extinct. We know that it only requires one dissentient juror to defeat the Government and give Jefferson Davis and his favorers a triumph. Now, is not such a result one which we must include in our calculation of possibilities? Whatever modes may be legally adopted to draw a jury, or to purge it, and whatever the influence of the court or of counsel, we know that a favorer of treason may get upon the jury. But that is not necessary. A fear of personal violence or social ostracism may be enough to induce one man to withhold his assent from the verdict, especially as be need not come forward personally, nor give a reason, even in the jury-room.
“This possible result would be most humiliating to the Government and people of this country, and none the less so from the fact that it would be absurd. The Government would be stopped in its judicial course because it could neither assume nor judicially determine that Jefferson Davis took part in the late civil war. Such a result would also bring into doubt the adequacy of our penal system to deal with such cases as this.
“If it were important to secure a verdict as a means of punishing the defendant, the question would present itself differently. But it would be beneath the dignity of the Government and of the issue, to inflict upon him a minor punishment; and, as to a sentence of death, I am sure that, after this lapse of time and after all that has occurred in the interval, the people of the United States would not desire to see it enforced.
“In fine, after the fullest consideration, it seems to me that, by pursuing the trial, the Government can get only a re-affirmation by a Circuit Court at nisi prius of a rule of public law settled for this country in every way in which such a matter can be settled, only giving to a jury drawn from the region of the rebellion a chance to disregard the law when announced. It gives that jury a like opportunity to ignore the fact that Jefferson Davis took any part in the late civil war. And one man upon the jury can secure these results. The risks of such absurd and discreditable issues of a great state trial are assumed for the sake of a verdict which, if obtained, will settle nothing in law or national practice not now settled, and nothing in fact not now history, while no judgment rendered thereon do we think will be ever executed.
“Besides these reasons, and perhaps because of them, I think that the public interest in the trial has ceased among the most earnest and loyal citizens.
“If your views and those of the President should be in favor of proceeding with the trial, I am confident that I can do my duty as counsel, to the utmost of my ability and with all zeal. For my doubts are not what the verdict ought to be. On the contrary, I should feel all the more strongly, if the trial is begun, the importance of a victory to the Government, and the necessity of putting forth all powers and using all lawful means to secure it. Still, I feel it my duty to say that if the President should judge otherwise, my position in the cause is at his disposal.”
President Johnson noted on the letter, “This opinion must be filed with care, A.J.”
On the following Christmas, President Johnson issued an amnesty proclamation which included Davis, and, as a result, in February, 1869 an order of _nolle prosequi_ was entered, and Davis and his bondsmen were released.
Thanks Bob, excellent quote from Richard Henry Dana, Jr.! I wish the US Government had tried Jeff Davis for the war crimes committed against Negro Troops, Southern Unionists, and the Union POW’s but that was not to be. And sadly, it seems any “treason trial” was so bogged down in legal difficulties it was a non-starter.
But Major Henry Wirz was tried and executed for war crimes. The only participant in the Civil War commander to be thus liberated post haste from the horrors he witnessed.
As a law professor, I find this discussion fascinating. Who else was indicted?
Robert E. Lee, James Longstreet, and Joe Johnston were among those indicted for Treason, though not at the same time as Davis.
And because of the surrender terms, none of the solders could be tried. I have wondered if some World War II JAG officer, perhaps a reader of DW Freeman, did not remember that and make certain the various Axis surrenders were for war time only — the officers and men could be tried for various war crimes after the end of the war.
That’s true, although there was a legal debate over whether Grant’s decision to parole those who were later indicted by the Norfolk Grand Jury in fact barred a prosecution for treason or was simply a military act (and not an effective grant of immunity). If i recall correctly, a total of c. 56 or so were indicted.
The decision in Texas v White is flagrantly dishonest, utterly corrupt, and thoroughly contemptible. Let’s take a look.
“When, therefore, Texas became one of the United States, she entered into an indissoluble relation…”
False. Neither the Constitution nor the Act of Congress annexing Texas says this.
“All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State.”
False. Unlike the Articles of Confederation, there is no law of perpetuity in the Constitution.
“The act which consummated her admission into the Union was something more than a compact;”
If the Annexaxtion Act is not a compact, the Constitution certainly is. Indeed, the ratification of Massachusetts explicitly declares that the Constitution, under which Texas is a member State, is 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.”
The Union between the original States was dissolved after seven years. By Chases’ own legal reasoning, Texas, at an absolute minimum, was free to leave the Union after 1852.
” There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.”
Neither the Constitution nor the Act of Congress which admitted Texas to the Union says this.
Thanks for sharing your opinion.
Without getting into the merits if your argument, it is, without question, the law of the land.
In my litigation days, I had a couple of cases where I didn’t believe the Judge had interpreted the facts correctly. Nevertheless she ruled otherwise and at the end of the day we had to comply with the decision.
It was remarked by some British contemporary that “before the war, we said ‘The United States are’ and after the war we say ‘The United States is’.” Something had changed. What had changed can be debated ad nauseum. But in the end….
Trial by combat always leaves the bloody victor with indisputable power to claim justice has been served. All the formal gears and levers of government follow suit to machinate detailed reasoning by which the victor’s claim can be rendered sacrosanct.
The gods laugh.
In the final analysis, while all of this is very interesting and informative, the fact remains that the United States did not try Jefferson Davis for treason. Nor do I even see the suggestion that the outcome of such a trial would have been such a slam dunk for the prosecution. We are still left with the historical fact that complicated constitutional issues were “settled on the battlefield” in a purely medieval fashion at best, and a jury trial was not forthcoming that would have solidified the claims of the United States in attacking the South. And any difficulties in securing a conviction that have been adumbrated here only bolsters the suggestion that maybe a less violent solution could have been tried. And frankly, It would not have made any sense for the United States to try Davis when it was the violent solution that was the one that Lincoln made clear would be promoted in his belligerent First Inaugural. Why waste time on legal niceties when an event as silly as Fort Sumter where not one person was killed was used as an excuse by a sitting president to attack his own countrymen. The expense of the North alone could have been used to settle the blacks and provide compensated emancipation. But the North never wanted a peaceful resolution. Until the end of the war, there were very few people who believed that the South had no right to secede. After the war, secession somehow magically became a Southern creation.
I would not want to predict the outcome of the trial given the undefined variables. However, this also suggests that because OJ Simpson was not convicted of murder that he did not kill anyone. Do you agree? Do you agree that because Bill Cosby was not convicted of rape that he never tried to drug women in order to have sex with them? Let’s be consistent.
As for the rest, I understand you believe all that. However, Jefferson Davis would have resented your characterization of his decision to fire on Fort Sumter as silly. We are left with the notion that you think the Confederate leadership was silly and stupid for playing into Lincoln’s hands. That’s not a heritage I would like to celebrate.
“…when an event as silly as Fort Sumter where not one person was killed was used as an excuse by a sitting president”…
An interesting viewpoint. Apparently, had the IJN just not killed 2300 folks at Pearl Harbor and simply knocked out a few battleships and a couple of airfields instead, we could have avoided going to war. Stupid Yamamoto.
We dont need a trial of Davis to solidify the claims of the United States — that was done in several other cases that ruled on secession. And its simply not true that “Until the end of the war, there were very few people who believed that the South had no right to secede.” It is unfortunate that violence had to be resorted to, but that is sometimes necessary to stop criminal activity.
As an aside, even a bloody Civil War failed to entirely erase the principle of secession from the American mind. It is also not only a sizable minority of citizens of the “Old South” who remain inclined to secession:
http://blogs.reuters.com/jamesrgaines/2014/09/19/one-in-four-americans-want-their-state-to-secede-from-the-u-s-but-why/
Mr. Mills should know that the white South that made up the Confederacy didn’t want anything to do with compensated emancipation. Neither did the border states for that matter!
Apparently, Mr. Simpson does not believe that an actual trial for treason was necessary, because no matter the outcome of the trial, Jefferson was guilty, and he follows that up with some very useful comparisons to O.J. Simpson who killed a white woman and her white friend and Bill Cosby who is a rapist. I am sure that is a very useful comparison when constitutional issues are at stake. But then, after comparing Jefferson to a rapist and a murderer, he switches gears and offers to defend Jefferson against my alleged slander of Jefferson for firing on Fort Sumter. There were people at the time who recommended that the South would be playing into Lincoln’s hands by firing on Sumter. I am not saying anything interesting when I suggest that the South should not have fired on Sumter. But thankfully, I have Mr. Simpson to compare Mr. Jefferson to O.J. Simpson and Bill Cosby and then tell me that he is actually defending Mr. Jefferson against my careless slander. But it is definitely silly to think that Sumter was an excuse for the slaughter that occurred after and the loss of so many good men on both sides. And believing that no other solution was possible and that the carnage and the destruction of the Southern economy and the destruction of the original Constitution and the voluntary Union that it upheld is definitely not a heritage that I would want to celebrate.
I didn’t know you were on a first name basis with the Confederacy’s only president. As for what I believe, I’ll take what I say over what you presume. Your reasoning is bizarre enough to suggest that you are a bit desperate … because while I compare legal situations, it is you who suggests Davis should be compared to a rapist and a murderer.
Then again, you do know him on a first name basis, so perhaps you have inside information. Or have you engaged in what you admit is “careless slander”?
i would also like to thank Mr. Foskett for dragging in the old chestnut comparing our enemies in WWII and the Confederacy. And instead of directly comparing the Confederacy to the NAZIs and Confederate symbols to the swastika, we get the indirect association of the Confederacy and the NAZIs through an association with Imperial Japan who as we know were allies of the NAZIs. I suppose I should thank Mr. Foskett for at least using his imagination in making that false association. Thank you.
Your reasoning skills need work.
It’s a good thing the marriage union isn’t indissoluble. If it were, I could force my wife into prostitution for my economic benefit – like Congress did when they used high tariff rates to force the southern states to sell cotton to northern textile companies. If my wife objected, I could beat her to a bloody pulp – like Abraham Lincoln and the Union army did to the South. I could cheat on her and withhold food, housing and shelter with impunity – like Congress did when they violated the 10th Amendment, encroaching on the rightful authority of the states, and using public tax money to subsidize private industries (railroad, steamship companies) – which was a violation of the federal government’s agreement to guarantee a Republican form of government – when they were supposed to acknowledge the Constitutional limits on their powers and stay within those Constitutional boundaries.
Imagine if all relationships you entered voluntarily became indissoluble. That would be great for the tyrant because it would provide him a captive audience, and a perpetual union of people to subjugate, with no remedy available to his victims. Imagine what life would be like if you had to fight to the death every time you wanted to dis-associate from someone you had voluntarily associated in the first place.
Imagine what it would be like if we really did have freedom of association, and could voluntarily disassociate from those who abused us. We might even begin to think the words in the Declaration of Independence were true which say, “That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”
Imagine how different life would be if our government officials were ruled by truth and common sense instead of greed and political expediency.
Well said, Paul. It’s a curious fact that habitual abusers always find some twisted justification to put themselves in the right — and most importantly, to maintain their position of power over others. It is not only single individuals who may be psychopaths. Governments almost always end up that way in the long term. As Lord Acton famously pointed out, “Power corrupts, and absolute power corrupts absolutely.”
That’s a keen observation about slaveholders.
I couldn’t agree more since it only confirms my central point. And actually, its a keen observation about people who gain power over others at all times, in all places throughout human history. It continues today. The means may change with time and fashion but the intended ends are eternally sought always by the same kind of people.
The desire to dragoon others into involuntary service or eliminate them if they resist is nothing unique to slavery inherited from the British in the American states. The north merely traded in slaves for profit. Morally superior people.
The American Indians might have some astute observations about that subject also, if you cared to listen. Consider blankets taken from a smallpox ward and deliberately given to people to wrap themselves against the cold. Very charitable, that gift from the government. Something to be proud of.
As to your comment following hereafter about abuse of women by the confederacy, you seem to be oblivious to the destructive march of Sherman and the vicious bombardment of Charleston and starvation on the land that came after. That was solely by ruthless attack of Union forces, as I recall. And it surely harmed women and children in large numbers.
But we are invited to believe it doesn’t matter because morally superior people carried it out. Which brings us full circle to strange moral arguments mounted in defense of the morally indefensible.
“Strange moral arguments mounted in the defense of the morally indefensible.” Like the proslavery argument, for example. Or when Confederate heritage advocates defend the KKK or other white supremacist terrorists.
Ah, so now the Confederacy’s a battered woman, eh? Tell that to the millions of women abused by the Confederacy.
Ultimately, if the people of a region decide to form their own government (like the Colonies did against Great Britain’s rule), the original governing body immediately becomes null and void to the new nation that is formed, because they consider themselves to be a separate, sovereign nation. That is how new nations are formed. The North may have used their laws to try and hold the South responsible for treason, but the South did not commit treason. They were a willing partner with the Union of the United States of America, and as such, they had no obligation to remain a partner, seeing that they didn’t enter into an agreement saying that they would abide by any form of “dissolution prohibition” once they joined. Even if they had entered such an agreement, the population who first agreed to it would eventually die, leaving their offspring to suffer the consequences of not being able to “legally” separate. Those new generations would once again have the same right to throw off the shackles of the government they were under, if they so chose, because they were not bound to abide by agreements made by their forefathers.
There comes another issue, as well, about the very principles and nature of the United States of America. We constantly uphold freedom of the people to decide their own government. Had we not upheld this right, then we could not have been separated from Great Britain without its consent. To be of the opinion that people cannot make the decision to govern themselves in some other way than what they are currently being subjected to, well, that is taking a stance against freedom itself.
In the end, I think it comes down to whether the original government truly upholds freedom of the people as a primary virtue. If they do, then they will allow people to govern themselves as they see fit, rather than trying to force them to fit into the mold of oppression that has come about over time in their current government. I don’t agree with the slave situation in the South morally, but I really think the major point was a division in those who loved freedom and exercised it, and those who desired power and control more than freedom itself.
We have much the same situation today with politicians who want to control the country rather than let the people be truly free. They think we “need them” to take care of us, and that we should just bow to their wishes for our social and political guidance. The true American upholds individual freedom to think and make decisions for yourself. That’s not to say that we won’t vehemently disagree about things, and try to convince the other side to see issues the way we do, but it is saying that we will, in the end, allow people to separate if they so choose. If I understand correctly, Thomas Jefferson said (of the looming tension between States over slavery), “If they depart, let them depart as brothers.” In other words, don’t kill the other person just because they don’t want to live by your rules. Let them go their own way. They will either prosper, or they will fail, depending on whether they were right or not.
And yet the Confederacy did not recognize such efforts within its own borders. Strange, isn’t it?
Is this our old buddy of many aliases repeating himself again?
The CSA imposed a lot of requirements and restrictions which would cause this “live free or die” crowd to squeal like stuck hogs if it were happening today. Sometimes it’s a lot easier to stay uninformed and swallow the verbal night soil.
We have already had this discussion. The states entered into an unbreakable union when they ratified the Constitution. The people knew at that time that once the state joined, it could not leave. Patrick Henry stated this at the Virginia Convention.
Liberty has different meanings for different people. The definition in 1861 was debated with firepower. You may have your definition, but if the majority have a different one, that’s the one you go with. In 1861 a group of people decided to ignore that majority, rejected the government that they themselves were part of, and deliberately launched an illegal insurrection while at the same time denying the people within the area they claimed the very liberty which they desired.
That insurrection was put down within the legal framework of the United States of America. In the process, the definition of liberty evolved as it will continue to evolve.
The Founders created this nation for themselves and their posterity which I define as those who choose to live in this country with the principles brought forth in the Revolution. However, the Founders are dead. It is left to the living to determine the government and the world around them. The living have to make it work for them the best way that they can. A democracy does just that.
The people have the choice to leave this nation. However, that does not mean a state does. You can pick up your stuff and leave any time you want.
Part of the problem with the Civil War is that people want to ignore its cause and how secession was accomplished or why the fighting began. They want to focus on whether a state can secede or not. That’s not really the point. They ignore the fact that the people of the seven states in the Deep South were rejecting the idea of secession and that’s the main reason why Jefferson Davis ordered the attack on US territory. They ignore the fact that many people in those states opposed secession to begin with and had no say in whether their state seceded or not. They ignore the fact that secession was wrong to begin with.
It is sort of ironic how only a minority desires secession today, yet tries to force their views on the majority. It is ironic how one group of people talks about freedom and liberty while trying to prevent others from participating in the election process or equal representation. It is ironic how one group tries to use their political power to enforce discrimination of all kinds while at the same time whining about their liberty. It is called hypocrisy. It is the same hypocrisy that the slave owners had in 1861 as they whined about their liberty while denying over four million people the same liberty.
Dear Professor Dick,
Please disregard my comment below about long posts and weak arguments. It does not apply when someone qualified is engaged in a teaching moment.
Sincerely,
Bee
“We have already had this discussion. The states entered into an unbreakable union when they ratified the Constitution. The people knew at that time that once the state joined, it could not leave. Patrick Henry stated this at the Virginia Convention.
“Liberty has different meanings for different people. The definition in 1861 was debated with firepower.”
So was the earlier one in 1776 against the British. Because we (rather miraculously) won against GB, we obviously had right on our side. That belief is widely promoted despite the fact that Britain regarded its lawful possession of the Colonies as “unbreakable” as did a majority in Parliament, which had (and still has) sole sovereign authority to determine what acts are lawful and which are not.
Since the South lost the later conflict in 1865, they did not have right on their side. Obviously. Because they lost. In the end, conflicts resolved in trial by combat simply assume winners are inevitably morally superior.
Winners in violent conflicts inevitably impose their own dominant historical narrative of moral superiority. They go on about for ever after. This has been true at all times and in all places. There are few if any exceptions where a complete victory has been accomplished.
Only suckers buy the promoted narrative which naturally follows the conclusion of these events as anything more than self-serving hokum concocted after the fact to justify whatever horror one side inflicted one the other.
No doubt if the Persians had over-run the Greeks, the Spartans at Thermopylae would today be regarded by moralizing “historians” as no more than a foot-noted band of dead-enders fighting in defense of a lost cause.
And the moral narrative justifying how wrong they were to oppose a morally superior nation would be proudly recited to us down to the present day — and in Persian.
“Winners in violent conflicts inevitably impose their own dominant historical narrative of moral superiority.”
Losers do the same thing. So this really doesn’t advance the discussion, does it?
“Losers do the same thing.”
It seems absurd that the obvious must be stated, but surviving losers are not privileged to dictate terms to their captors.
Armenians, Carthaginians, Highlanders, and an endless list of other peoples decimated by force of arms would likely confirm to you that whatever minority narratives survived after they were laid waste were studiously disregarded by “righteous” governments who conquered them.
Ruining their traditions was priority one. Gaelic was forbidden to the conquered Irish for no other purpose. American Indian children were taken from their families and transported to Carlisle by authority of the USG to “convert” them from their savage ways and make them fit for white society. Many were buried there and quickly forgotten.
In an earlier age, William took England by “right of conquest”. He was at least honest in claiming might is right and offered no apology for dispatching Harold or suspending ancient rights as it suited him. Whether he also had some superior “moral” claim to the throne was neither here nor there. Nor did he rely on it. Force thereafter assured no voice among native inhabitants mattered a fig. Whatever native narratives gave local people dignity were suppressed with vigor.
Occupation of conquered territory is essential to assure history is “officially” written and promoted in approved form as a litany to be recited by loyalists ever after. It’s the same always and everywhere by means Orwell succinctly describes:
“He who controls the past controls the future. He who controls the present controls the past.”
How Shakespeare disgracefully bent his talented pen to politics of the day in his calculated smear of Joan of Arc offers yet another vivid example of a deliberately defaming narrative propped up by carefully chosen facts (and some fiction). Goebbels and Bernays would have surely admired that effort.
Who Joan actually was and what she actually did were of no interest to Elizabethan England. History was put wholly in service to the Crown, which wished to leave no possible doubt about its “moral” authority to cruelly torment and burn a young peasant woman at the stake for witchcraft.
Down the ages, that singular impulse for witch-burning has remained the indelible hallmark of smug moralists whose narratives of “history” are passed down like a used suit of clothes from generation to generation. Eventually even the patches wear thin from over-use.
I’m sure you believe that the Confederate version of history is simply the truth. Thast’s okay, because then you would have to admit that the losers can write the dominant narrative. After all, it dominates what you say.
It certainly seems absurd that the obvious must be stated. Note that’s why you stay away from the Lost Cause narrative. It wouldn’t fit your point.
Miraculously? No miracles involved. The Americans won for many reasons, not the least was their ability to deny the British control over much of the nation for any extended period of time. That’s not a miracle, just good leadership.
When you study the logistics of the American War of Independence, you realize there was no miracle.
Brooks made a great statement. The losers in the Civil War advanced their own narrative as to what the war was about and why the Confederacy lost. However, when the facts are explored, the loser’s narrative fails to be accurate. I wouldn’t say the winners got to establish their narrative though. The one that is correct is the one that use facts to support its interpretation.
The narrative that the states can unilaterally secede fails to be supported by facts.
The narrative that the Civil War was about state’s rights fails to be supported by facts.
The narrative that the North started the Civil War and invaded the South fails to be supported by facts.
The narrative that the South was a victim of Northern aggression and economic policies fails to be supported by facts.
Only suckers believe in a narrative that fails to be supported by facts.
“The states entered into an unbreakable union when they ratified the Constitution.”
No, Jimmy, they did not. Ratifying the Constitution only meant that they agreed to abide by it, not that you could never leave it under any circumstances. If the Constitution itself had said that you could secede, you might would have a point, but it did not say that, and therefore it was left to the States to decide (the Constitution says clearly that any power not expressly given to the federal government by the Constitution is reserved for the States).
The United States of America is an union of sovereign States. The federal government is supposed to be as minimally involved in our day-to-day lives as possible. The elitist wolves in Washington, D.C. have continued to grab more and more unlawful influence over us. The few are trying to control the many, and it is usually over a matter of right or wrong when it comes to how we live.
“They ignore the fact that secession was wrong to begin with.”
Again, no, Jimmy. The reason for their secession might have been wrong, but secession itself is not wrong (or even illegal). The founding principle is this: if the people are under a tyrannical government, they should throw off such government.
Jimmy, you sound like someone who thinks the Constitution is wobbly and moldable. It’s not. Very few, if any, major changes should be made to the original Constitution. Those who want to change the Constitution with ill-conceived ideas about how people should think, or ignore the simple truth of what the Constitution says, it is they that should leave, not the ones who love what our nation is founded on. They ignore the authority of God, our Creator, Who gives us our inalienable rights. They try to silence people who disagree with their ideas about morality, and they use the unlawful influence of the federal government to “bully” people into submission. Thankfully, there are still many of us who know the Truth, and will not, by any means (even the threat of imprisonment or death), abide by an oppressive and overreaching federal government.
The States are, individually, made up of the people, for the people, and by the people. As such, States can leave the nation just as an individual can.
By the way, our nation is approximately 40% conservative, 20% moderate, and 20% liberal. It is the liberals who are the minority trying to force the majority to live by their twisted rules.
“No law can give me the right to do what is wrong.” – Abraham Lincoln.
The government doesn’t give us our rights: it is supposed to simply acknowledge that they come from God, and then work to protect those rights from those who would try to take them away.
Your reference to the modern groups trying to “discriminate” against people, and prevent others from being represented, seems to be a thinly veiled attempt at criticizing conservative people and their values, when in fact, they are simply reading the law as it is written (the way it was meant to be read). I know of no minority in this nation that is being, in reality, discriminated against. It is the majority that is now in danger of being the victims of rabid dogs trying to eliminate their way of life.
Ah, more modern politics. Amazing how we’ve had a wave of presentists appear recently.
It probably has to do with the orange one running for president. Facts mean little to his supporters. I am so going to love election day in November.
Once again, I suggest using what the people of the past said and not inserting what you want them to have said. They were quite clear on ratification. You are not.
It looks like you have your version of the Constitution and then there is the one that everyone else uses.
You left out 20% of the people. You also used bad data, but hey, whatever works for you.
Let’s just point out that the majority of people in this nation have voted for the Democratic candidate for president five of the last six times. After the November election you can amend it to six of the last seven.
Brooks is right. You’re just inserting your modern political beliefs over the facts. That is presentism.
Isn’t it odd that some states like NY and RI and later VA had secession clauses if as you say, once joining they knew they couldn’t leave?
Let’s see the secession clauses. And, if, as Madison said, you can’t put a condition on your joining, then they are null and void.
You agree to attend a baseball game. However, you affix conditions to attending, namely that you retain the right to assault fans of the opposing team without punishment. How do you think that will go over?
You mean that I can’t go on the ice while the puck’s in play even if I write on the back of my season tickets that I can?
It would go over about as well as the scenario in which you agree to attend a baseball game, but the stadium has affixed the condition that you may not leave before the end of the game or you agree to be assaulted. To make it even better, suppose you have partial ownership in the stadium.
Basically, it’s not a contract. It’s joining a group. Contracts have conditions that are agreed to by both sides. This was not the case with ratification.
Maybe so, but I think the ratification of the constitution is closer to signing a contract than merely joining a group, especially for the original states and the few independent republics that were not territories first. The constitution states specific procedures, duties, powers, and limits on the general government and it took the best statesmen of the period to hammer it out. There is no point in praising it or denigrating it. I personally think it is a brilliant document, but we know it is not perfect. That being said, I think at the very least the states would have thought twice before ratifying it had they seen the coming conflict, and that the only thing they gained in the revolution was the ability to trade one despotic sovereign for another in a different form.
I would have liked to have seen the questions of secession and treason settled by the courts. It occurs to me when political issues are settled by force that the outcome is not legitimate, regardless of the victor, in that the opposing argument was simply crushed and dismissed.
The discussion on this site is interesting and informative, and I have certainly learned a lot from reading the comments on different topics. I admit that I am no attorney or professor, and ignorant in many respects, but what I like to see is all the knowledge and information laid out, without slant, deletion, or embellishment, and let folks decide for themselves what the truth is. Both sides certainly have enough warts, guilt, and blame. I think we have to acknowledge that.
Thank you for sharing.
Al Mackey took care of this urban legend a few years back:
Next……
Quote: “I really think the major point was a division in those who loved freedom and exercised it, and those who desired power and control more than freedom itself.”
This is a funny statement of sorts, because it can be flipped around. “Those who loved freedom exercised it and rid themselves of slavery” & “Those who desired power fought to keep their slave labour, thus denying 4 million people of freedom”
Observation: the weaker the argument, the longer the text!
Anyhow, I really like this particular post; I have used it in several “treason” discussions.
It was meant to be understood that the freedom they loved and exercised superseded the federal government, not that they were in favor of freeing the slaves. The slaves were not legally free people, so they had no say in the debate. Again, I don’t agree with the South’s position on slavery. I’m just looking at the situation today, and it is clear that our rights are in danger of being taken away by a few people who want to look down their noses at the “common folk”, and tell them what to do, simply because they think they are “enlightened” now.
Then what you’re admitting is that your view of the past is determined by your view of the present. In other words, you’re a presentist. Good enough.
And yet you quote Lincoln approvingly as saying, “No law can give me the right to do what is wrong.” So much for “the slaves were not legally free people.”
You seem far more interested in the rights of white people than you are about th rights of black people. I wonder why that is.
What freedom did they want? What did they say? Please show me the primary sources where they said exactly what freedom they wanted. When you do, it will be about slavery.
Quote: I’m just looking at the situation today, and it is clear that our rights are in danger of being taken away by a few people who want to look down their noses at the “common folk”, and tell them what to do, simply because they think they are “enlightened” now.
Oh, geez: now we are swerving dangerously close to the old “Ivory Tower” canard, which is a ruse to cover up someone’s insecurities about his/her place in the world.
Look up Ben Nighthorse Campbell sometime: A “common folk” who IS indeed self made, educated, enlightened, and served with distinction in Congress in both the House and Senate. I use him as an example because I knew him, but there are many more like him, today.
You have degenerated into an incoherent whiner.
I haven’t checked this discussion until tonight, so here we go.
I am not “insecure” about my so-called “place” in the world. I just know that my place isn’t to be determined by the mob of people that would force me into their mold or become an outcast completely. There are so many things now that divide us. Life, liberty, and the pursuit of happiness is not to be defined by a few States, and then forced onto the others. As long as the rights guaranteed in the Constitution are being upheld (and not twisted versions of those rights), then States can individually decide if there are other matters that they want to address about their own wellbeing. Too many times, groups and elitist types try to make new law by “re-interpreting” the Constitution into basically oblivion, and hope that a judge somewhere agrees with them.
My position in all these matters is that the federal government has limits, and the States are the primary force to stop the federal government from going beyond those limits. The Founding Fathers knew that a large federal government would continually encroach on the freedom of the people. Thomas Jefferson said that the natural order of things was for the government to grow larger and civil liberties to grow smaller. They put a great deal of emphasis on the States being sovereign in as many things as they could, and being able to protect themselves from tyranny. The States, after all, were very concerned about their own individual freedom being overruled by other States (using the federal government as influence) who really didn’t have any business telling them what to do or how to live.
My primary reason for defending States’ rights and the legality of secession is simply because we’ve come to a point in our history where massive cities and certain States have gained so much influence that the people of the smaller States (who are happy to live in peace) are in jeopardy of having to make a choice between living by the moral standards of others, or put their own livelihoods and freedom at risk.
In the end, when secession is considered by a State, the federal laws and “interpretations” of what is legal or not really have no effect. If the people are willing to put their lives on the line for what they believe, then they are willing to defy the influence of those who are against them, even to the point separating from them as a nation altogether. We the People don’t need the government trespassing into our inalienable rights, and then making them of none effect. The federal government is not the highest authority to those who believe in the Constitution and the Declaration of Independence. I serve God before anyone else. When government tries to take that ability away from people, or tries to tell people what serving God really is, then the people have the right, and more importantly, the obligation, to resist with all their might, even if it means laying down your life and possessions.
I may not check this discussion again (I’m not sure), so my final thought to leave with you is this: if anyone tries to take my rights away, I have the moral high ground to defend what I have. I think I would have the courage and conviction to stand up to those who would take my freedom. I love law enforcement and our military, but I would fight them with guns blazing if they acted on me to take my rights away (freedom of religion, guns, right to own property, freedom to speak as I think I should, etc.). Liberals think that is going overboard, but they don’t understand the true value of our freedom, and the patriotism involved in defending it, even from them. Our Founding Fathers knew the value very well.
As the Apostles said when told to stop their preaching of Jesus, their answer was, “We should serve God rather than man.” The elitists of today arrogantly think they know a “better way” to live than what God told us, and many in the United States of America are vehemently opposed their intrusion into that part of our lives. Someone’s morals will prevail in this nation. The patriots will fight to make sure it is either their morals, or die in defense of them and stand before God with a clean conscience.
Farewell, everyone, and God bless America, and make us strong again!!!
Thank you for sharing with us your political views and opinions. We understand that your perspective of the past is dictated by them. No need to repeat the exercise again.
We are already strong.
You are ignoring the first amendment but that doesn’t surprise me.
Brooks said it best.
Ciao!
You would do yourself a great service by actually becoming informed about the founding fathers and the AWI. There’s a lot of junk out there masquerading as popular history. As for the evils of the “federal government”, it is a very rare individual indeed in this country who has not gleefully accepted certain benefits of that government. There are a good many hypocrites afoot when it comes to that subject.
Wow. It seems that my comment may have pushed you over the edge — sorry! I hope that you recover in due time.
Bless his heart, I hope so.