Why the North Dared Not Try Jefferson Davis for Treason

The Boston Daily Adviser, July 25, 1865, stated exactly what was on the line:

“If Jefferson Davis is innocent, then it is the government of the United States which is guilty; if secession has not been rebellion, then the North in stifling it as such, has committed a crime.”

That the question was even asked tells us that the legality of secession was at minimum an open question. How then could Jeff Davis be convicted of treason? The North wanted legal vindication of its trial by battle in a trial by court, but recognized the stakes were high and vindication far from certain. The press in New York City was insisting that no treason had taken place and Jeff Davis was merely obeying an order of his rightful sovereign - the State of Mississippi. The New York World asserted, “To submit the secession question to a court is to imply that it is still open to doubt!” The paper then concluded that even if the court did “decide that secession is a constitutional right, Unionists would not yield their convictions on this subject.” Therefore the paper concluded “the trial of Mr. Davis is little better than a judicial farce.” (New York World, May 16, 1866.) Harpers Weekly noted the possibility of acquittal which if happened would mean the US Government had “waged war against those whom the courts would have justified in their actions.” (Harpers Weekly, May 26, 1866.)

The Chief Justice of the Pennsylvania Supreme Court G. W. Woodward wrote:

“But is secession treason? That’s a grand question. If it is not, war in support of it cannot be... It will have to be defined and made plain, unless indeed we continue to set aside all law and administer only drumbeat justice.” (G. W. Woodward to Jeremiah Black May 28, 1865)

Lincoln knew his claims about secession’s illegality were not certain, and therefore hoped Jeff Davis would escape. He told Gen. Sherman, “I’m bound to oppose the escape of Jeff Davis, but if you could manage to have him slip out unbeknownst-like, I guess it wouldn’t hurt me much!” (Sherman interview, New York Times, July 4, 1865). 

Jeff Davis believed a trial would vindicate the Confederate cause. For this reason he steadfastly refused to apply for a pardon. His private secretary wrote to his mother, “he has all along earnestly desired a trial, confident the world and posterity would see the thing in its right light...” (Burton Harrison to his mother, June 13, 1866.)

In light of the uncertainty regarding the illegality of secession, US Attorney General James Speed received pressure from all angles, including Sec of State Seward and Sec of War Stanton to try Davis in a way that would ensure his conviction at all costs.  Sen James Doolittle proposed a bill that would manipulate the qualifications of jurors to ensure they could be counted on to convict him. Representative William Lawrence introduced a bill that was a potential violation of the Constitution. When warned he declared himself “willing to go to the very verge of the Constitution...” (Congressional Globe, 39th Congress, 2nd sess, 12/11/1866). 

When an indictment was returned against Davis based on “thin” testimony, the New York Daily News protested that the prosecution had rigged the proceedings by selecting a grand jury predisposed against him. (The New York Daily News, May 12, 1866.) In charging the grand jury the Judge in the case, John C. Underwood, made it clear he thought Davis guilty prompting one courtroom observer to remark, “if he and his packed jury of ferrets and Yankees were to be permitted to have anything to do with Mr. Davis he would have but a slim chance for justice.” (New York Times, May 12, 1866; David Powell to Elizabeth Dabney Saunders, June 8, 1866.) When asked if he could pack a jury to convict Davis, Judge Underwood responded, “I could pack a jury to convict him: I know very earnest, ardent Union men in Virginia.” (Report of the Joint Committee on Reconstruction, 1866, testimony of John C. Underwood.)

Obviously the North was plagued by a culture of lawlessness. Is it any wonder the South sought to secede, and sought to do so not because of slavery, tariffs, internal spending, bounties, centralization, or any other numerous complaints they levied against the North? These were all symptoms of a more fundamental reason for secession - Northern infidelity to the legal compact that held the States in Union. The South simply sought independence from a section of States that had a long history of a culture of lawlessness. 

Stirrings of Secession: An Essay by Pat Buchanan

Jefferson Davis

Pat Buchanan has an essay at Vdare today entitled "Stirrings of Secession."  Buchanan states what others have observed, e.g. Lawrence Auster at View From the Right, that conservative voters and liberal voters are all intermixed within the states, and that makes secession difficult if not impossible.  I disagree.

A large portion of the American colonists were loyal to the crown in 1776, but the states still successfully seceded from Great Britain. It is fair to say that the loyalists and the patriots were considerably intermixed within the colonies.

Not all Southerners wanted to secede from the union in 1861, but most supported the South when it was invaded.

All a state needs today, in order to legally secede, is a voting majority who wants it.  Those who don't can leave the state or live with the decision.  This is not to say that the federal government would allow it without a fight, but once again their opposition would be in opposition to both constitutional and natural law.

Buchanan also claims that the issue of secession was settled at Appomattox. On this point, Buchanan is dead wrong. The idea that a constitutional question can be settled by force is to deny the rule of law and the long-held principle of "the consent of the governed." As Jefferson Davis wrote while in prison at Fort Monroe: “A question settled by violence or in disregard of law, must remain unsettled forever.” He was speaking of the right to secede. He was partially correct, but not on whether the issue "must remain unsettled forever." As he himself stated previously, “The principle for which we contend [i.e. secession] is bound to reassert itself, though it may be at another time and in another form.”

The principle is reasserting itself, just as Davis predicted.

Read Buchanan's essay here.

See Related Post from American Renaissance here:  Secession:  It's Constitutional

An Age Old Forgery Still Used to Denigrate Jefferson Davis

A few years ago I read a biography of Jefferson Davis by a northern author, written in the 1930's. The author described an incendiary speech, said to have been delivered by Davis as a response to the Emancipation Proclamation.

The author stated flatly that the speech was a forgery, created for propaganda purposes during the American Civil War, and gave examples of similar forgeries occurring in American history.

Nevertheless, this fake speech still circulates on the internet, in college classrooms and websites, presented as fact and used to denigrate Davis and his cause. Once in a while you will come across this forgery, so be prepared.

That Jefferson Davis never gave such a speech is obvious. It isn't included in any scholarly collections of his papers or speeches or newspapers of the time period. For example, see this listing of Davis's speeches on the Rice University website. The speech Jeff Davis gave on January 14, 1863 doesn't remotely resemble the fraudulent one [reproduced below].  (You can read the actual speech given by Davis at this link.)

Furthermore, though Harper's Magazine of January 31, 1863 did print Jeff Davis's response to the Emancipation Proclamation, those remarks did not resemble the fraudulent address herein described. It is doubtful that such an incendiary speech by Davis would have been overlooked, particularly one specifically addressed to "to the People of the Free States by the President of the Southern Confederacy."

Further evidence that the address is fraudulent is that Jeff Davis allegedly says ".....and entertaining the belief that the day is not distant when the old Union will be restored with slavery nationally declared to be the proper condition of all of African descent...." Jefferson Davis would never had said any such thing. He was utterly determined and committed to preserving the independence of the Southern states; restoration of the Union was to him unthinkable. Furthermore, Jefferson Davis acknowledged that slavery would come to an end at some point in the future, regardless of the outcome of the Civil War.

In the speech Jefferson Davis allegedly makes powerful policy decisions as if he were a dictator, when in reality such decisions would have to be approved by the Confederate Congress.

Here's the forged speech. If you see it anywhere, know it for what it is.
-------------------------------------------------
CONFEDERATE RESPONSE TO THE EMANCIPATION PROCLAMATION
An Address to the People of the Free States by the President of the Southern Confederacy, Richmond, January 5, 1863.

Citizens of the non-slaveholding States of America, swayed by peaceable motives, I have used all my influence, often thereby endangering my position as the President of the Southern Confederacy, to have the unhappy conflict now existing between my people and yourselves, governed by those well established international rules, which heretofore have softened the asperities which necessarily are the concomitants of a state of belligerency, but all my efforts in the premises have heretofore been unavailing. Now, therefore, I am compelled e necessitati rei to employ a measure, which most willingly I would have omitted to do, regarding, as I always must, State Rights, as the very organism of politically associated society.

For nearly two years my people have been defending their inherent rights their political, social and religious rights against the speculators of New England and their allies in the States heretofore regarded as conservative. The people of the Southern Confederacy have -- making sacrifices such as the modern world has never witnessed -- patiently, but determinedly, stood between their home interests and the well paid, well fed and well clad mercenaries of the Abolitionists, and I need not say that they have nobly vindicated the good name of American citizens. Heretofore, the warfare has been conducted by white men -- peers, scions of the same stock; but the programme has been changed, and your rulers despairing of a triumph by the employment of white men, have degraded you and themselves, by inviting the cooperation of the black race. Thus, while they deprecate the intervention of white men -- the French and the English -- in behalf of the Southern Confederacy, they, these Abolitionists, do not hesitate to invoke the intervention of the African race in favor of the North.

The time has, therefore, come when a becoming respect for the good opinion of the civilized world impels me to set forth the following facts:

First. Abraham Lincoln, the President of the Non-Slaveholding States, has issued his proclamation, declaring the slaves within the limits of the Southern Confederacy to be free.

Second. Abraham Lincoln has declared that the slaves so emancipated may be used in the Army and Navy, now under his control, by which he means to employ, against the Free People of the South, insurrectionary measures, the inevitable tendency of which will be to inaugurate a Servile War, and thereby prove destructive, in a great measure, to slave property.

Now, therefore, as a compensatory measure, I do hereby issue the following Address to the People of the Non-Slaveholding States:

On and after February 22, 1863, all free negroes within the limits of the Southern Confederacy shall be placed on the slave status, and be deemed to be chattels, they and their issue forever. All negroes who shall be taken in any of the States in which slavery does not now exist, in the progress of our arms, shall be adjudged, immediately after such capture, to occupy the slave status, and in all States which shall be vanquished by our arms, all free negroes shall, ipsofacto, be reduced to the condition of helotism, so that the respective normal conditions of the white and black races may be ultimately placed on a permanent basis, so as to prevent the public peace from being thereafter endangered.

Therefore, while I would not ignore the conservative policy of the Slave States, namely, that a Federal Government cannot, without violating the fundamental principles of a Constitution, interfere with the internal policy of several States; since, however, Abraham Lincoln has seen fit to ignore the Constitution he has solemnly sworn to support, it ought not be considered polemically or politically improper in me to vindicate the position which has been at an early day of this Southern republic, assumed by the Confederacy, namely, that slavery is the corner-stone of a Western Republic. It is not necessary for me to elaborate this proposition. I may merely refer, in passing, to the prominent fact, that the South is emphatically a producing section of North America; this is equally true of the West and Northwest, the people of which have been mainly dependent on the South for the consumption of their products. The other States, in which slavery does not exist, have occupied a middle position, as to the South, West and Northwest. The States of New England, from which all complicated difficulties have arisen, owe their greatness and power to the free suffrages of all other sections of North America; and yet, as is now evident, they have, from the adoption of the Federal Constitution, waged a persistent warfare against the interests of all the other States of the old Union. The great centre of their opposition has been Slavery, while the annual statistics of their respective State Governments abundantly prove that they entertain within all their boundaries fewer negroes than any single State which does not tolerate slavery.

In view of these facts, and conscientiously believing that the proper condition of the negro is slavery, or a complete subjection to the white man, -- and entertaining the belief that the day is not distant when the old Union will be restored with slavery nationally declared to be the proper condition of all of African descent, and in view of the future harmony and progress of all the States of America, I have been induced to issue this address, so that there may be no misunderstanding in the future.

*****

The commentary of a modern university teacher is included below:

This document shows Jefferson Davis, the commander-in-chief of the
confederate armies, firmly promulgating the national policy that the
southern armies were fighting for slavery. It also belies any supposed
confederate support for blacks in their own ranks, as Davis clearly regards
having blacks as soldiers degrades white society.

There's only one problem, lady. Jeff Davis never wrote it or said it.
...