Beginning in 1860, many United States citizens actively took part in levying war against their national government. Many others gave aid and comfort to those who had pledged allegiance to the United States. And yet, at the end of that conflict, not a single one of them was found guilty of treason in a Federal court. What we’ll take a look at today is just how this seeming injustice could have happened. First, however, let’s take a closer look at the definition of treason in the cases of civil war.
Civil War vs. Rebellion in the Law of Nations
The Law of Nations is a work of political philosophy looked to in the eighteenth and nineteenth centuries as a guidebook for constitutions, charters, treaties, international law, rules of the sea, and rules of war. It was used and referenced in the United States from the Declaration of Independence onwards. The influence of this tome can be seen even in the post-war years. 1For an example, see the article on Jefferson Davis’ accusations against Lincoln for not adhering to the law of nations.
“When a party is formed in a state, who no longer obey the sovereign, and are possessed of sufficient strength to oppose him, – or when, in a republic, the nation is divided into two opposite factions, and both sides take up arms, – this is called a civil war.” 2Emer de Vattel The Law of Nations (London: G.G. and J. Robinson, 1797) 424. Additionally, I’ve also delved into this subject here. Though originally published in 1760, I like the 1797 edition, as it had been “revised, corrected, and enriched with many valuable notes never before translated into English.” While this would not have been the edition used by the founders of the United States, it would certainly have been the edition used during the Civil War years.
The Law of Nations cautions us to “proceed more soberly” with civil war than normal war. After all, “the sovereign’s rights are derived from the whole of the state or civil society.” It is the duty of the sovereign, the government, to watch over “the welfare of the nation, of procuring her greatest happiness, of maintaining order, justice, and peace within boundaries.” We are also cautioned to “distinguish the nature and degree of the different disorders which may disturb the state.” 3Ibid., 422.
Proceeding soberly is certainly fine advice. Emotion in the study of history does nothing but distort the past. Granted, it’s nearly impossible to be devoid of it, but when we are figuratively drunk on pride, anger, patriotism, sectionalism, etc., little service can be done to actual history. With this in mind, let’s proceed cautiously.
The nature of the disorder was more serious than, for example, the Whiskey Rebellion, a small uprising that was squashed by troops send on the orders of President George Washington. In the case of the American Civil War, almost the entire South not only left the Union, but picked up arms, took over Federal installations, and waged actual war upon the Republic. Granted, they were not attempting to topple the government in Washington, which certainly would have been more serious, but still, this was not a mere disagreement.
The term “rebels” has been applied to those fighting for the Confederacy. The same term was applied to the Colonists during the Revolutionary War. The Law of Nations agrees in both cases: “The name of rebels is given to all subjects who unjustly take up arms against the ruler of the society, whether their view be to deprive him of the supreme authority, or to resist his command in some particular instance, and to impose conditions on him.” 4Ibid., 422. The Confederacy, as well as the Colonists fighting against England, both fit this definition.
In the waging of war against rebels taking part in smaller insurrections, the Law of Nations urges restraint and clemency. In an all out civil war, however, the rules of the matter were different since a simple rebellion was much smaller in scope and object than a full-blown civil war. In such a conflict, there are “two independent parties, who consider each other as enemies, and acknowledge no common judge.”
It is therefore held that those two parties, in our case, the United States and the Confederate States, “must necessarily be considered as thenceforward constituting, at least for a time, two separate bodies, two distinct societies,” regardless of who started the conflict. This, of course, was established so that both parties would follow “the common laws of war, – those maxims of humanity, moderation, and honour….”
This was the big difference between a simple rebellion and a civil war. While a mass execution might suit a rebellion (though the Law of Nations cautions against even that), such an punishment has no place in a civil war.
“Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals: – if he does not religiously observe the capitulations, and all other conventions made with his enemies, they will no longer rely on his word: – should he burn and ravage, they will follow his example; the war will become cruel, horrible, and every day more destructive to the nation.” 5Ibid., 425-426.
Treason During the American Civil War
Through the war, both sides flirted with breaking this maxim, just as the other side proved it right. For example, when the United States decided to arm and field black soldiers, Jefferson Davis decreed that any Union officer leading such troops “shall not be regarded as a prisoner of war but held in close confinement for execution as a felon at such time and place as the President shall order.” 6Official Records, Series 2, Vol. 4, 857. He also ordered that “all Negro slaves captured in arms be at once delivered over to the executive authorities of the respective States to which they belong, to be dealt with according to the laws of said States.” 7Official Records, Series 2, Vol. 6, 139. This typically meant that they would be executed as slaves in insurrection.
Lincoln, to counter this, issued Order No. 252, which held that “for every soldier of the United States killed in violation of the law, a Rebel soldier shall be executed, and for every one enslaved by the enemy or sold into slavery, a Rebel soldier shall be placed at hard labor on the public works, and continued at such labor until the other shall be released and receive the treatment due to a prisoner of war.” 8see Frank Moore The Rebellion Record, Vol. 7 (New York: D. Van Nostrand, 1864) 451. Find it here. It should also be noted that Lincoln specifically name dropped the Law of Nations in this order: “The law of nations, and the usages and customs of war, as carried on by civilized powers, permit no distinction as to color in the treatment of prisoners of war as public enemies.” However, Lincoln never fully put this into action – even after Fort Pillow. 9A basic overview can be found here.
Though it was deemed unjust to punish rebels taking part in a civil war during the war itself, the Law of Nations changes course when discussing the aftermath of the conflict.
The Punishment and Amnesty
“When the sovereign has subdued the opposite party, and reduced them to submit and sue for peace, he may except from the amnesty the authors of the disturbances, – the heads of the party: he may bring them to legal trial, and punish them, if they be found guilty.” 10de Vattel, 426.
There’s quite a bit to unpack in this short statement. First, the subject of amnesty for the common people taking part in the war is almost flippantly assumed. This stems from the idea that even during a civil war, the two parties see themselves as “two different nations.” It’s concluded that “they ought to leave open the same means for preventing its being carried to outrageous extremities, and for the restoration of peace.” 11Ibid.
To put it simply – those following the leaders of the rebellion were to be treated as soldiers fighting in any other war. After the conclusion of the conflict, they were to be allowed to go home and live in peace.
But the leaders of the rebellion could be treated in a different manner: they could be put on trial and punished if found guilty. There were, however, stipulations. The Law of Nations allowed the sovereign to punish them if “the interests of the people are not so much the object in view as the private aims of some powerful individuals.” This now becomes an incredibly gray area. While only a small percentage of those fighting in the Confederate armies were enslavers, almost all benefited from the institution of slavery, both socially and economically. That said, slavery was, at that time, a protected institution – it was not illegal.
Because the American Civil War does not fit neatly into the examples given by the Law of Nations, this is where we must “proceed more soberly”. With this sobriety, we can see that even though the common Southern people would potentially have benefited more so under a slave-based economy than free labor, it was their leaders that brought them to secession and war. They were willing participants, of course, but the same would be true of almost any free army filing in line behind any leader.
This sobriety is urged here for two reasons. First, a mass punishment would most certainly lead to more war and more retaliation. Second, and most importantly, was “the danger of committing great injustice by hastily punishing those who are accounted rebels.” 12Ibid., 427.
The History of Punishment
“The flames of discord and civil war are not favourable to the proceedings of pure and sacred justice: more quiet times are to be waited for. It will be wise in the prince to keep his prisoners till, having restored tranquility, he is able to bring them to a legal trial.” 13Emer de Vattel The Law of Nations (London: G.G. and J. Robinson, 1797) 427.
Here the Law of Nations warns that too swift a punishment of the leaders was a bad idea. The people who had been in rebellion, who had fought the civil war, were naturally attached to the leaders of their cause and conflict. If time was allowed to pass and peace could be established, at least a modicum of sobriety in the majority of the former rebels could be achieved.
Just what this punishment was to be the Law of Nations had nothing to say. This was because the book’s subject was not how a nation should conduct itself towards its own people, but how it should act upon a world stage. The chapter on civil war was included merely to define it and differentiate it from other wars. Each nation, therefore, had to set its own laws concerning treason.
In the United States, treason was outlined in the Constitution. It was defined as “levying war” against the government or giving “aid and comfort” to the enemy. 14United States Constitution, Article III, Section 3. This was a fairly broad definition, especially when it came to the Civil War, where the vast majority of people in the seceded states gave aid and comfort to the Confederate soldiers. Following the Law of Nations, however, the focus would return to the leaders. For this, precedence could be consulted.
The first such treason case in American history is that of Philip Vigol and John Mitchell, leaders in the Whiskey Rebellion of 1791-1794. They, along with many farmers in western Pennsylvania, opposed paying a tax on whiskey. For three years, many protested peacefully, but in 1794 violence erupted and things became more serious. George Washington led nearly 13,000 militia troops into the area, but met no resistance. After declaring the insurrection subdued, 150 were charged with treason.
As leaders, both Vigol and Mitchell were charged, and it was argued that they had raised a body of men to repeal a law through force. This was, deemed their accusers, “constructive levying of war.” Despite the many trials of the 150 accused, only Vigol and Mitchell were found guilty of high treason, and both were sentenced to be hanged. Nevertheless, President Washington pardoned them less than a year later. 15John W. Johnson, ed., Historic U.S. Court Cases: An Encyclopedia (New York: Routledge, 2001) 40.
Despite the pardon, the precedence was set and used against both John Fries, who fomented a 1799-1800 rebellion in Pennsylvania, and Aaron Burr, who was said to have taken part in a conspiracy to start an independent country in the early 1800s. While Fries was convicted, he was pardoned by John Adams. Burr was tried, but found not guilty.
Aaron Burr’s trial more strictly defined treason. Chief Justice John Marshall, who presided over the hearings, found Burr not guilty, since an “open deed of war” was not committed. Burr may have spoken of waging war, but that was allowed under the First Amendment. Additionally, the prosecution could not produce the two witnesses required by the Constitution. 16R. Kent Newmyer John Marshall and the Heroic Age of the Supreme Court (Louisiana State University, 2001) 199-202 – though a reading of the entire segment on the Burr case is helpful.
Prior to the Civil War, nobody who had been found guilty treason against the Federal government had actually faced execution. 17John Brown was found guilty of treason against Virginia, not the United States – though he was still the first to be executed for the crime. In actuality, the first person to be convicted and executed for treason against the United States was William Bruce Mumford, who, during Benjamin Butler’s occupation of Civil War New Orleans, tore down a United States flag from a Federal building. He was arrested and tried by a military tribunal, who found him guilty and executed him a few days later. This act was not, however, overseen by the Supreme Court. It was something Butler did independently of any higher command.
This is an important distinction, as Mumford’s act could hardly have fit the Constitutional definition of treason as used by Chief Justice Marshall. The Supreme Court would certainly have taken a closer look at such an incident (if they wouldn’t have simply thrown it out). 18Chester G. Hearn When the Devil Came Down to Dixie (Louisiana State University Press, 1997) 130-141.
Treason and the End of the War
The history of the many accusations, trials and convictions for treason and spying during the Civil War has been enough to fill volumes, and is beyond our scope. So then let us move forward to the end of the war, when most of the Confederacy’s leaders were either in prison or accounted for.
In March of 1864, Abraham Lincoln had extended amnesty to all Confederate soldiers and civilians, but excluded those already indicted for treason in the Federal courts. There were thousands upon thousands who were to face such trials, even at the time of Lincoln’s assassination. Just a week prior, when Robert E. Lee surrendered to Ulysses S. Grant, the latter offered the former full amnesty for even Confederate officers who laid down their arms. With Andrew Johnson’s rise to the presidency, however, that deal was off the table.
Johnson would soon issue his own pardon, giving amnesty to almost all of the Confederate soldiers and officers, but excluded politicians and high ranking military officers. For those not covered, Johnson required them to apply in writing for a pardon. 19Andrew Johnson The Papers of Andrew Johnson: May-August 1865 (University of Tennessee Press, 1989) 128-129.
This paved the way for a June indictment of more than twenty-five Confederate leaders, including Lee. Johnston was keen on trying Lee for treason, but General Grant apparently threatened to resign if it went that far. The issue was never pressed, and though the charges were not dropped until 1869, nothing more came of it for Lee. 20This timeline is related in The Papers of Ulysses S. Grant: May 1-December 31, 1865 (Southern Illinois University Press, 1988) 150n.
In the meanwhile, Davis’ council pressured the Federal government to either charge him or release him on bond. Since their case was not yet prepared, they had to let him go. On May 13, 1867, Davis was again free, though only until he could be brought to trial.
By September of 1867, Johnston had pardoned around 13,500 ex-Confederates with somewhere around 150,000 still waiting. By issuing another blanket amnesty policy at that time, Johnson whittled the field to a workable 300. Less than a year later, a third writ, which granted “a full pardon and amnesty for the offense of treason against the United States” to all former Confederates “excepting such person or persons as may be under presentment or indictment in any court of the United States … upon a charge of treason or other felony.” This swept away all but Jefferson Davis, John Breckinridge, Robert E. Lee, John Surrat, and a few others. 21Paul D. Monreno Constitutionalism in the Approach and Aftermath of the Civil War (Fordham University Press, 2013) 130-131.
Back to the Law of Nations
Finally, after years of shifting and stalling, the United States government had caught up with the Law of Nations. There had been peace, and while there wasn’t exactly tranquility, the fervor for war had indeed died down. A trial for Davis, Lee, Breckinridge and others might be something that could be accomplished. There were, however, issues. Though Davis was still in the United States, Breckinridge was somewhere in Europe, and Grant had threatened to resign if they pursued Lee.
Davis, it seems, was the only viable case they had left to them in the immediate. Since Davis’ imprisonment in 1865, there had been calls for a speedy military trial, similar to what Butler gave Mumford. But this seemed out of place. No other Confederate leaders had been treated as treasonous when captured – instead they were handled as prisoners of war. Now that the conflict was ended, a civil – not military – court seemed most appropriate.
This too posed problems. If they tried Davis and he was found not guilty on a technicality of some sort, it would set a precedence that could actually legalize secession. It was argued by the Attorney General that nothing good could come of even a conviction, and nothing but endless woes would follow an acquittal.
Additionally, since Davis had operated out of Richmond, he would have to be tried in Richmond with a jury of Richmond citizens. If even one of those citizens had been even remotely sympathetic to the Confederate cause, the entire thing would be lost.
The idea of a military tribunal was again discussed. It would toss aside almost all Constitutional considerations, including the legality of secession. Unfortunately, with that tossing would also go the charge of treason. Davis would be tried not as a traitor, but as an enemy combatant, though he might still face the noose. 22Moreno, 119-121.
Davis’ trial had been set for November 1867, but postponed until March the following year. This led to another indictment, this one focusing almost exclusively on his military direction as President of the Confederacy. This connected Davis to levying war, specifically charging him with high treason. The trial, set for June of 1868, was postponed again when neither sides’ lawyers found themselves prepared. As time wore on, Chief Justice Salmon Chase, who was set to preside over the trial, was having some major second thoughts. “I can see no good to come, at this late day, from trials of treason,” he wrote in June. 23Salmon Portland Chase The Salmon P. Chase Papers: Correspondence, 1865-1873, Vol. 5 (Kent State University Press, 1998) 227.
With the trial set to begin in November of 1868, Chase had lost almost all heart. Davis’ counsel argued that the new Fourteenth Amendment was already punishment. It stated that no person could again hold office who had “engaged in insurrection or rebellion” against the United States. This, they contended, included not only all Confederates, but Davis as well. This was shaky ground, and yet Chase, clearly unwilling to see this through, agreed. 24Albert Bushnell Hart American Statesmen: Salmon P. Chase (Houghton, Mifflin and Company, 1899) 353.
If this wasn’t enough, on December 25, 1868, President Johnson, on his way out the door, issued a general proclamation declaring amnesty “unconditionally and without reservation, to all and to every person who, directly or indirectly, participated in the late insurrection or rebellion….” 25Johnson, 332. This, regardless of charges and any future trial, granted amnesty to all rebels, including Jefferson Davis. He was once again a free man with not only his head upon his shoulders, but nearly all the rights he had prior to the war.
A Short Conclusion
According to the Law of Nations, following a civil war, the leaders could face treason trials. It was suggested that some peaceful time pass before proceeding. Other than that, it had nothing at all to say about the crime.
Treason is not a matter of international law. It is left up to the individual governments to decide for themselves what is and is not treasonous. If the government wished to engage in mass executions over even petty crimes, it technically could. If, on the other hand, it wished to grant amnesty to rebels who waged a war against it for four years, it could do that as well.
Basically, the rebels, while traitors in the popular definition of the word, were not treasonous in the legal definition. This was fully because Johnson granted amnesty to even Jefferson Davis. In other words, it was not treason because the Federal government said it was not treason.
References [ + ]
|1.||⇡||For an example, see the article on Jefferson Davis’ accusations against Lincoln for not adhering to the law of nations.|
|2.||⇡||Emer de Vattel The Law of Nations (London: G.G. and J. Robinson, 1797) 424. Additionally, I’ve also delved into this subject here. Though originally published in 1760, I like the 1797 edition, as it had been “revised, corrected, and enriched with many valuable notes never before translated into English.” While this would not have been the edition used by the founders of the United States, it would certainly have been the edition used during the Civil War years.|
|6.||⇡||Official Records, Series 2, Vol. 4, 857.|
|7.||⇡||Official Records, Series 2, Vol. 6, 139.|
|8.||⇡||see Frank Moore The Rebellion Record, Vol. 7 (New York: D. Van Nostrand, 1864) 451. Find it here. It should also be noted that Lincoln specifically name dropped the Law of Nations in this order: “The law of nations, and the usages and customs of war, as carried on by civilized powers, permit no distinction as to color in the treatment of prisoners of war as public enemies.”|
|9.||⇡||A basic overview can be found here.|
|10.||⇡||de Vattel, 426.|
|13.||⇡||Emer de Vattel The Law of Nations (London: G.G. and J. Robinson, 1797) 427.|
|14.||⇡||United States Constitution, Article III, Section 3.|
|15.||⇡||John W. Johnson, ed., Historic U.S. Court Cases: An Encyclopedia (New York: Routledge, 2001) 40.|
|16.||⇡||R. Kent Newmyer John Marshall and the Heroic Age of the Supreme Court (Louisiana State University, 2001) 199-202 – though a reading of the entire segment on the Burr case is helpful.|
|17.||⇡||John Brown was found guilty of treason against Virginia, not the United States – though he was still the first to be executed for the crime.|
|18.||⇡||Chester G. Hearn When the Devil Came Down to Dixie (Louisiana State University Press, 1997) 130-141.|
|19.||⇡||Andrew Johnson The Papers of Andrew Johnson: May-August 1865 (University of Tennessee Press, 1989) 128-129.|
|20.||⇡||This timeline is related in The Papers of Ulysses S. Grant: May 1-December 31, 1865 (Southern Illinois University Press, 1988) 150n.|
|21.||⇡||Paul D. Monreno Constitutionalism in the Approach and Aftermath of the Civil War (Fordham University Press, 2013) 130-131.|
|23.||⇡||Salmon Portland Chase The Salmon P. Chase Papers: Correspondence, 1865-1873, Vol. 5 (Kent State University Press, 1998) 227.|
|24.||⇡||Albert Bushnell Hart American Statesmen: Salmon P. Chase (Houghton, Mifflin and Company, 1899) 353.|