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  • A sensitive question

    I know this is a sensitive topic, before I go any further I want to point out I am referring to the enlisted or conscripted Confederate soldier, I had ancestors on both sides during the war.
    With that being said let me get to it,
    Should the Confederate leadership been arrested and tried as traitors?
    Davis and his cabinet, his top generals, all were complicit in the rebellion, many had been serving the USA for decades and took up arms against the nation, any solider that does that today would undoubtedly be tried and a verdict issued.
    Finally, would a legal process such as a trial prevented the lost cause phenonium and the current civil unrest we are witnessing today?
    Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly and applying the wrong remedies.

  • #2
    I would say no. I think such a trial would have led to further acts of violence and rebellion. It would also have called into question the states' right to secede which was legal at the time of the Civil War.
    Quis Custodiet Ipsos Custodes? Who is watching the watchers?

    Comment


    • #3
      They should have been tried, and if found guilty, pardoned. This is based on precedents of the Whiskey and Fries Rebellions.

      The Constitution was and is not clear on secession, and if you ask me, the balance of evidence was on the side of the Confederates. The pro-Unionists certainly didn't have much to rely on. In Texas v. White, the Supreme Court case that ruled secession was illegal, Chief Justice Chase based his opinion, in part, on the fact that the states shared borders and had a common history, not necessarily that they were tied together legally. It was a close question that could have gone either way, and many in the North believed the "Southern" states were in their right to withdraw from the Union. Some radicals even wanted to see the Gulf states go, so there would be less slave states in the U.S.

      But as the North won and the Union was restored, I think the same treatment should be afforded the Confederates as was accorded the Whiskey Rebellion participants and those in Fries Rebellion. In all cases it was a question of local or state power against federal authority, which was new and hotly contested. Presidents Washington and Adams both pardoned the participants of the earlier rebellions, so the precedent was set.

      In short, no one knew whether secession was legal or not, and the precedent was that if rebels were acting in a "gray area," no pun intended, then they should be pardoned. Lincoln held that opinion, which would put him in line with Washington and Adams.
      Last edited by American87; 06 Jul 20, 21:29.
      "It is a fine fox chase, my boys"

      "It is well that war is so terrible-we would grow too fond of it"

      Comment


      • #4
        Originally posted by American87 View Post
        They should have been tried, and if found guilty, pardoned. This is based on precedents of the Whiskey and Fries Rebellions.

        The Constitution was and is not clear on secession, and if you ask me, the balance of evidence was on the side of the Confederates. The pro-Unionists certainly didn't have much to rely on. In Texas v. White, the Supreme Court case that ruled secession was illegal, Chief Justice Chase based his opinion, in part, on the fact that the states shared borders and had a common history, not necessarily that they were tied together legally. It was a close question that could have gone either way, and many in the North believed the "Southern" states were in their right to withdraw from the Union. Some radicals even wanted to see the Gulf states go, so there would be less slave states in the U.S.

        But as the North won and the Union was restored, I think the same treatment should be afforded the Confederates as was accorded the Whiskey Rebellion participants and those in Fries Rebellion. In all cases it was a question of local or state power against federal authority, which was new and hotly contested. Presidents Washington and Adams both pardoned the participants of the earlier rebellions, so the precedent was set.

        In short, no one knew whether secession was legal or not, and the precedent was that if rebels were acting in a "gray area," no pun intended, then they should be pardoned. Lincoln held that opinion, which would put him in line with Washington and Adams.
        The trial would not necessarily be about secession, but about rebellion.
        Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly and applying the wrong remedies.

        Comment


        • #5
          They certainly rushed to armed conflict. On the other hand they couldn't allow the union to build up troop strength in their states while negotiations were underway for separation.

          This is one of those cases where it is best to stretch the truth and simply attribute the war to an attempt to end slavery. The right to secede is too murky and legalistic an issue but I think it is illogical to suggest that you can have self determination in it's absence. Attributing the war to ending slavery paradoxically allows us to reexamine states rights. As it is a new cultural conflict is dragging us towards a second civil war. Without the central government to financial bail out states they would be more responsible. As it has turned out a strong central government has made for weak and irresponsible local government.

          Immigration is an obvious example of how states rights conflicts with self determination. It is hard to imagine a secure border around every state or how any state could now back off of the welfare system that encourages illegal immigration. What your neighbors do will always effect you and it is unlikely that states will agree anymore than individuals on what is reasonable. The question of how to prevent war either actual or figuratively without a central authority can't be ignored.

          If the war was unavoidable because of slavery and slavery was legal it lets the Southern secessionist off the hook for legal responsibility. They were defending their legal rights and the North was defending human rights. Sometimes it seems that cultural differences are so extreme that armed conflict is unavoidable regardless of the legal niceties.
          We hunt the hunters

          Comment


          • #6
            Secession not illegal?
            So what is your reading of the following passage from the Constitution?
            Article I
            Section 10

            1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
            2: No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
            3: No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.


            Trial, yes it would have been possible, under the said Constitution
            Article II
            Section 3

            1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

            2: The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.


            but we must not forget Lincoln's first "Amnesty Proclamation" of December 8, 1863 and Johnston's second of May 29, 1865, and Johnston's third of December 25, 1868 which pronounces a total pardon and amnesty, without conditions...


            Comment


            • #7
              Who could be brought before court ?

              The following classes of persons are excepted from the benefits of this proclamation (Johnston's Second):

              First—All who are, or shall have been, pretended civil or diplomatic officers, or otherwise, domestic or foreign agents, of the pretended Confederate Government.

              Second—All who left judicial stations under the United States to aid the rebellion.

              Third—All who shall have been military or naval officers of said pretended Confederate Government above the rank of colonel in the army and lieutenant in the navy.

              Fourth—All who left seats in the Congress of the United States to aid the rebellion.

              Fifth—All who resigned or tendered resignations of their commissions in the army or navy of the United States to evade duty in resisting the rebellion.

              Sixth—All who have engaged in any way in treating otherwise than lawfully as prisoners of war persons found in the United States service as officers, soldiers, seamen, or in other capacities.

              Seventh—All persons who have been or are absentees from the United States for the purpose of aiding the rebellion.

              Eighth—All military and naval officers in the rebel service who were educated by the Government in the Military Academy at West Point, or the United States Naval Academy.

              Ninth—All persons who held the pretended offices of Governors of States in insurrection against the United States.

              Tenth—All persons who left their homes within the jurisdiction and protection of the United States, and passed beyond the Federal military lines into the so-called Confederate States for the purpose of aiding the rebellion.

              Eleventh—All persons who have been engaged in the destructions of the commerce of the United States upon the high seas, and all persons who have made raids into the United States from Canada, or been engaged in destroying the commerce of the United States upon the lakes and rivers that separate the British provinces from the United States.

              Twelfth—All persons who, at the time when they seek to obtain the benefits hereof by taking the oath herein prescribed, are in military, naval or civil confinement or custody, or under bonds of the civil, military or naval authorities or agents of the United States, as prisoners of war or persons detained for offences of any kind either before or after conviction.

              Thirteenth—All persons who have voluntarily participated in said rebellion, and the estimated value of whose taxable property is over twenty thousand dollars.

              Fourteenth—All persons who have taken the oath of amnesty, as prescribed in the President's proclamation of December 8th, one thousand eight hundred and sixty-three, or an oath of allegiance to the Government of the United States, since the date of said proclamation, and who have not thenceforward kept and maintained the same inviolate.

              Comment


              • #8
                Originally posted by daddut roger View Post
                Secession not illegal?
                So what is your reading of the following passage from the Constitution?
                Article I
                Section 10

                1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
                2: No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
                3: No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
                But all those apply while a part of the union. Once a state leaves the union, such restrictions can no longer apply, so we're back to the question of whether secession is allowable. By 1865, the War had settled it, but from the perspective of 1861, I don't think it is nearly so clear. Since secession is not specifically prohibited in the Constitution, by the 10th, it must be reserved to the states or to the people, right?

                Comment


                • #9
                  Lincoln wanted the country reunited and did not want the Confederate leadership to be arrested and tried for treason. Grant's terms at Appamattox were in line with Lincoln's wishes and guidance.

                  The worst thing that happened to the south was Lincoln's assassination in that the radical Republicans in Congress were no longer contained by Lincoln and the Reconstruction that followed was not in line with Lincoln's wishes.

                  The question on secession and the Constitution is: was secession allowed in the Constitution-it was not.
                  We are not now that strength which in old days
                  Moved earth and heaven; that which we are we are; One equal temper of heroic hearts
                  Made weak by time and fate but strong in will
                  To strive to seek to find and not to yield.

                  Comment


                  • #10
                    Originally posted by Mountain Man View Post
                    I would say no. I think such a trial would have led to further acts of violence and rebellion. It would also have called into question the states' right to secede which was legal at the time of the Civil War.
                    Where does it state in the Constitution that secession was legal?
                    We are not now that strength which in old days
                    Moved earth and heaven; that which we are we are; One equal temper of heroic hearts
                    Made weak by time and fate but strong in will
                    To strive to seek to find and not to yield.

                    Comment


                    • #11
                      I like this from 87, [QUOTE][They should have been tried, and if found guilty, pardoned. This is based on precedents of the Whiskey and Fries Rebellions./QUOTE], for two reasons. First, justice and the goal many espoused of healing the country would have been served by this action. Second, the pardon would have decreased the chances of post war violence that a guilty verdict for treason and execution of that sentence may have engendered.

                      No trials or sanctions should have been applied to the men in the ranks. This wasn't the first, nor would it be the last, war in history fought by the many for reasons the very few who would benefit from same convinced them were shared values.

                      Some have cited the cause of states rights as the reason for secession. Really? The Cornerstone Speech and the rationales for secession written by a few of the states in rebellion make abundantly clear the only state right they were truly concerned with was keeping slavery as an economic, political and social engine. If that doesn't satisfy, there remains the fact that the only portion of the rebel's constitution that could not be amended dealt with the permanent establishment of slavery.

                      See Article I Section 9(4)No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed.

                      Regards,
                      Dennis
                      If stupid was a criminal offense Sea Lion believers would be doing life.

                      Shouting out to Half Pint for bringing back the big mugs!

                      Comment


                      • #12
                        Originally posted by 82redleg View Post

                        But all those apply while a part of the union. Once a state leaves the union, such restrictions can no longer apply, so we're back to the question of whether secession is allowable. By 1865, the War had settled it, but from the perspective of 1861, I don't think it is nearly so clear. Since secession is not specifically prohibited in the Constitution, by the 10th, it must be reserved to the states or to the people, right?
                        Based on that line of reasoning we are to assume the Founding Fathers viewed the United States as a temporary expedient. Do you believe that to be the case?

                        Regards,
                        Dennis
                        If stupid was a criminal offense Sea Lion believers would be doing life.

                        Shouting out to Half Pint for bringing back the big mugs!

                        Comment


                        • #13
                          Again, I'm not asking if secession is legal, the question is about the leaders who lead a rebellion.
                          Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly and applying the wrong remedies.

                          Comment


                          • #14
                            Originally posted by Urban hermit View Post
                            Again, I'm not asking if secession is legal, the question is about the leaders who lead a rebellion.
                            Yes, I addressed that as part of my post along with the sham that is the states rights argument for secession. Secession and rebellion and their leading lights, in this instance, are conjoined twins. It is difficult to separate one from the other.



                            Regards,
                            Dennis
                            Last edited by D1J1; 07 Jul 20, 12:20. Reason: Add text
                            If stupid was a criminal offense Sea Lion believers would be doing life.

                            Shouting out to Half Pint for bringing back the big mugs!

                            Comment


                            • #15
                              Originally posted by 82redleg View Post

                              But all those apply while a part of the union. Once a state leaves the union, such restrictions can no longer apply, so we're back to the question of whether secession is allowable. By 1865, the War had settled it, but from the perspective of 1861, I don't think it is nearly so clear. Since secession is not specifically prohibited in the Constitution, by the 10th, it must be reserved to the states or to the people, right?
                              Remember, the first Constitution signed by the Founding Fathers was baptized "Article of Confederation and perpetual Union between the States", in 177. Everything is said!
                              The Articles created a loose confederation of sovereign states and a weak central government, leaving most of the power with the state governments. The need for a stronger Federal government soon became apparent and eventually led to the Constitutional Convention in 1787. The present United States Constitution replaced the Articles of Confederation on March 4, 1789.

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