I received this in an email, I am assuming it is meant for public distribution. Credit posted.
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Subject: So You've Been Told Secession Was Illegal--guess what? It wasn't!
So You've Been Told Secession Was Illegal--guess what? It wasn't!
By Al Benson Jr.
So you were told in your government school “history” class that Southern secession was illegal--that Jeff Davis and all those nasty Southern folks were really nothing but traitors to the glorious Union. You see the same thing in “news” articles and on the Internet. Unfortunately, over the years, I’ve heard many born and raised in the South parrot the same line. They should know better, but thanks to the benefits of a government school “education” they don’t have a clue.
Frank Conner, in his excellent book The South Under Siege 1830-2000 which I read back in 2003, dealt in some detail with the alleged treason of Jefferson Davis. In referring to the leadership in the North he noted: “They believed the most logical means of justifying the North’s war would be to have the federal government convict Davis of treason against the United States. Such a conviction must presuppose that the Confederate States could not have seceded from the Union; so convicting Davis would validate the war and make it morally legitimate.” Interesting thought, if you are a Yankee with a Marxist mindset. However, in truth, nothing could validate the War of Northern Aggression in such a way as to give the North moral legitimacy.
Although the Northern leaders planned to seize the moral high ground with a trial for Davis, that prolific South-hater, Thaddeus Stevens, couldn’t keep his big mouth shut, and he was wont to let the cat out of the bag. Stevens’ rants against the South and her people had become legend, and Stevens, at his most charitable, said “The Southerners should be treated as a conquered alien enemy…This can be done without violence to the established principles only on the theory that the Southern states were severed from the Union and were an independent government de facto and an alien enemy to be dealt with according to the laws of war…No reform can be effected in the Southern states if they have never left the Union…” And, although he did not plainly say it here, what Stevens really desired was that the Christian culture of the Old South be “reformed” into something compatible with his personal beliefs. Stevens would have made Robespierre look like a right-winger! No matter how you cut the mustard, the feds tried to have it both ways--they claimed the South was “in rebellion” and had never left the Union, but then they claimed the South had to do certain things, pass certain amendments--in order to get back into the Union they had never been out of. Strange, is it not, that the “history” books never seem to pick up on this. But, then, they give us “all the history that fits” (the agenda).
At any rate, the Northern government prepared to try President Davis for treason while they had him in prison. Mr. Connor observed that: “The War Department presented its evidence for a treason trial against Davis to a famed jurist, Francis Lieber, for his analysis. Lieber pronounced ‘Davis will not be found guilty and we shall stand there completely beaten’.” According to Mr. Conner, U.S. Attorney General James Speed appointed a renowned attorney, John J. Clifford, as his chief prosecutor. Clifford, after studying the government’s evidence against Davis, withdrew from the case. He said he had ‘grave doubts’ about it. Not to be outdone, Speed then appointed Richard Henry Dana, a prominent maritime lawyer, to the case. Mr. Dana also withdrew. He said basically, that as long as the North had won a military victory over the South, they should be satisfied with that. In other words--you won the war, boys, so don’t push your luck beyond that!
Conner also informed his readers that: “In 1866 President Johnson appointed a new U.S. attorney general, Henry Stanburg. But Stanburg wouldn’t touch the case either. Thus had spoken the North’s best and brightest jurists re the legitimacy of the War of Northern Aggression--even though the Jefferson Davis case offered blinding fame to the prosecutor who could prove that the South had seceded unconstitutionally.” None of these bright legal lights from Yankeedom would touch this case with a ten-foot pole. It’s not that they were all dumb, in fact, the reverse is true. These men had sense enough to know a dead horse when they saw it--and they were not about to climb aboard and attempt to ride it across the treacherous stream of illegal secession. They knew better. In fact, a Northerner from New York, Charles O’Connor, became the legal counsel for Davis--without charge! That, plus the celebrity jurists from the North that held their noses and walked away from the case, told the federal government that they, in reality, had no case against Davis or secession and that Davis was merely being held as a political prisoner. Most folks, even in the North, already knew that.
Author Richard Street, writing in The Civil War back in the 1950s, said exactly the same thing. Referring to Jeff Davis, Street wrote: “He was imprisoned after the war, was never brought to trial. The North didn’t dare give him a trial, knowing that a trial would establish that secession was not unconstitutional, that there had been no ‘rebellion’ and that the South had got a raw deal.” You can’t say it much more directly than that.
At one point, the federal government intimated that it would be willing to offer Davis a pardon, should he grovel a little and ask for one. Davis refused--to his credit. He demanded that the government either give him a pardon or give him a trial. Mr. Street said: “He died, unpardoned, by a government that was leery of giving him a public hearing.” If Davis was as guilty as they claimed--why no trial???
Had the federal government had any possible chance to convict Davis and therefore declare secession unconstitutional, they would have done so in a heartbeat. The fact that they hemmed and hawed around for two years and finally released him without benefit of a trial that he wanted, proves that the North had no real case against secession. Over 600,000 boys, North and South, were killed or maimed so the North could fight a war of conquest and class struggle over something the South did for self-preservation, that was neither illegal or wrong. Yet the North claims the moral high ground because they, supposedly, “freed the slaves” when all they really did was to transfer ownership from private to federal hands. What a farce!
RICHARD HENRY DANA BRIEF Boston, August 24, 1868 The Honorable William M. Evarts, Attorney General, 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 responsibility for the proceeding. After the most serious reflection, I cannot see any good reason why the Government should make a question of 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 . 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 constitutional 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 Courts (2 Black’s Ref) 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 fact depending upon the line of bayonets of an actual war. The rule in the Prize Courts has been steadily followed in the Supreme Court since, and in the Circuit Courts, without an intimation of a doubt. That the lawmaking 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 by independent empire within the United States was treason. The only question of fact submitted to the jury will be whether Jefferson Davis took 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 powers 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 discontent 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 ascent from the verdict, especially as he need not come forward personally, nor give a reason, even in the jury room. The 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 the 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 reaffirmation by a Circuit Court at nici 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 form 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 the results. The risk 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 natural 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 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 victory to the Government, and the necessity of putting forth all power 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 case is at his disposal. Very respectfully Your ob’t. ser’t. (signed) Richard H. Dana, Jr.
