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The result of the war clearly made secession:" impractical," did not make it illegal under the Constitution. Mr. Lincoln and others could make various arguments against it such as by claiming that the Union was: "Indivisible", but they could not show anywhere in the Constitution that gave the Federal Government the authority to forbid secession. Thus, that remedy was available to the states and to the people.
If the result of the war settled the question of secession, there would have been no need to address the issue in the USSC decision Texas v. White in 1869. That decision said that the states did not have the authority to leave, but that in no way made secession :'Treason" or any other crime in 1861. The Constitution clearly forbids any kind of ex post facto laws.
If Mr. Lincoln had lived, he would have opposed such trials for treason as the one proposed in the case of Jefferson Davis. His attitude in his own words was to: "Let 'em up easy." He had already clashed with the Radical Republicans in 1864 when he refused to sign the Wade-Davis bill. Unlike the Radicals, Mr. Lincoln had: "Malice towards none," and sought to: "Bind up the nation's wounds."
Wade–Davis Bill - Wikipedia, the free encyclopedia
Proclamation on the Wade-Davis Bill, July 8, 1864 : Abraham Lincoln : AMDOCS:
Mr. Lincoln clearly opposed the harsh measures advocated by the Radicals. For the most part, Andrew Johnson followed the blueprint of Mr. Lincoln's policies, though he was less amenable to the idea of black suffrage.
No less a figure than General Grant declared that attempts to bring treason charges against prominent paroled Confederates was: "Injurious." He asked that such indictments be stopped, and even threatened to resign his commission if they were not. After the war, men of good will like Generals Grant and Lee sought to promote reconciliation among the regions.
The Federal Government managed to get a treason indictment against Jefferson Davis from a grand jury in Virginia, but that in no way guaranteed a conviction. Famous legal minds (Such as John Clifford and Richard Dana) brought in by the Government to examine the case found it lacking and unlikely to succeed. They also cited the danger to the Government if the case was brought and failed.
The danger for the Federal Government was that if Mr. Davis was not convicted, secession would be legitimized, and the primary reason for fighting a war of subjugation to force the southern states to remain (That the Union must be preserved, etc.) would be repudiated. If that had happened, it would have been difficult to rationalize the deaths of over 600,000 Americans.
If in the unlikely event that the: "Crime" of secession had led to a conviction of Mr. Davis for treason, and if in the unlikely event that he and others had been hanged as you would have proposed, the results would have been disastrous. In all probability, it would have led to a generation of violence at one level or another. The Federal Government might have had to occupy the southern states for 50 years. It would have led to a very different trajectory for the country, and its doubtful that the US would have become a world power in the early 20th century, and a superpower by the middle of it.
After having gone through a devastating four year war, men of intelligence like Clifford and Dana and Chase could imagine the possibility of the above scenarios taking place, and shudder at the prospect. There was much to lose and little to be gained by attempting acts of vengeance against a few individuals. Thankfully, those in the Government saw that the risk was much greater than the reward. In the end, they came to their senses and declined to take a course of action as utterly stupid as the one you would have proposed to them.
Last edited on Wed Dec 5th, 2012 01:10 am by Texas Defender