Post-war indictment of ex-Confederates in the Confederate States of America

Post-war indictment of ex-Confederates in the Confederate States of America


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Why was the Confederate president, Jefferson Davis, or any other Confederate soldier, not tried for high treason?


He was captured and held over for trial in 1865 but eventually was released when full amnesty was declared by Johnson in 1868. The wording of the amnesty proclamation gives Johnson's reasons and rationale for granting it:

Whereas the authority of the Federal Government having been reestablished in all the States and Territories within the jurisdiction of the United States, it is believed that such prudential reservations and exceptions as at the dates of said several proclamations were deemed necessary and proper may now be wisely and justly relinquished, and that an universal amnesty and pardon for participation in said rebellion extended to all who have borne any part therein will tend to secure permanent peace, order, and prosperity throughout the land, and to renew and fully restore confidence and fraternal feeling among the whole people, and their respect for and attachment to the National Government, designed by its patriotic founders for the general good:

Now, therefore, be it known that I, Andrew Johnson President of the United States, by virtue of the power and authority in me vested by the Constitution and in the name of the sovereign people of the United States, do hereby proclaim and declare unconditionally and without reservation, to all and to every person who, directly or indirectly, participated in the late insurrection or rebellion a full pardon and amnesty for the offense of treason against the United States or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof.

-- Amnesty Proclamation of 1868 by President Johnson pardoning everyone in the south.


The soldiers and officers of all Confederate Armies were exempted from treason trials by the terms of Lee's surrender to Grant. They were allowed to go home unmolested as long as they ceased to make war on the US. All other CSA forces soon surrendered on the same terms and also were exempt from treason trials.

Government officials were not exempt, and could have been tried for treason or other crimes. The official in charge of Andersonville Prison camp was executed for his actions there, as War Crimes. Jefferson Davis was imprisoned for about 2 years, but was let go on bail even before Johnson's pardon. Davis wanted a trial, but the US government decided it wasn't worth the fuss.


Not tried for Treason, and the other answers already detail that. But Lee and Jefferson Davis were not covered by the President Johnson's General Amnesty. I remember in 1976, when President Jimmy Carter granted Lee, his citizenships back. I was school mates with a Lee descendant. We also shared our class with a Grant descendant, but unlike my friend Robbie E. Lee V, she did not use her descendants name. Robbie was a 4th grader who was called to the Whitehouse and got to witness President Jimmy Carter from Georgia signing the order granting Lee his citizenship back. My friend was interviewed on the local Washington DC TV station that evening. Jimmy Carter did the same for Jefferson Davis a few years later (1978). Both Lee and Davis died denied the rights of citizenship in the United States.

Restoration of Citizenship Rights to Jefferson F. Davis
Statement on Signing S. J. Res. 16 into Law.
October 17, 1978

In posthumously restoring the full rights of citizenship to Jefferson Davis, the Congress officially completes the long process of reconciliation that has reunited our people following the tragic conflict between the States. Earlier, he was specifically exempted form resolutions restoring the rights of other officials in the Confederacy. He had served the United States long and honorably as a soldier, Member of the U.S. House and Senate, and as Secretary of War. General Robert E. Lee's citizenship was restored in 1976. It is fitting that Jefferson Davis should no longer be singled out for punishment.

Our Nation needs to clear away the guilts and enmities and recriminations of the past, to finally set at rest the divisions that threatened to destroy our Nation and to discredit the principles on which it was founded. Our people need to turn their attention to the important tasks that still lie before us in establishing those principles for all people.

Source: American Presidency Project

Lee also had his primary residence confiscated by the Union for failing to pay his property taxes during the civil war. The amount Lee owed totaled $92.07, for the 1,100 acre river front plantation overlooking the nations Capital. It is today the home of Arlington National Cemetery. The federal government settled up with Lee's ancestors in the 1880 when a supreme court decision returned the property and 6000 union graves to the Lee family. Robert E. Lee died, ten years prior in Oct 1870.


Tennessee Valley Civil War Round Table

Patriots Twice: Former Confederates and the Building of America after the Civil War, Stephen M. Hood, 341 pages (e-book/Kindle) 256 pages (hardcover), Savas Beatie Publishing, 2020. This is a Tennessee Valley Civil War Round Table review by Lee Hattabaugh.

The men who fought and served so bravely for what they believed in the War Between the States continued that service to rebuild their reunited country long after the fighting ended in 1865. They were farmers, merchants, soldiers, lawyers, politicians, and leaders before the War and when they returned to their homes following the surrender of the Armies, they continued in these roles. They founded cities, companies, and universities. They were governors, judges, ambassadors, and some even answered the call to became soldiers again. Mr. Hood presents these stories and so much more in this unique and timely book.
For over forty years following the cessation of hostilities, Americans from both sides of the conflict struggled to rebuild and reunite the States under a single government. To accomplish this, the former enemies worked toward this common goal and did so in a time-honored tradition of loyalty, duty, and selfless-service. Mr. Hood’s exhaustive research has identified many of the former Confederates who served the new United States of America.

Following the author’s acknowledgement of those who helped in with research, including a few names your reviewer recognized as personal acquaintances, the book contains eight parts which are defined by the various roles filled including: presidential appointments, Congress, military, state governors, city founders, officers in professional societies, higher education/universities, and Native Americans/others. Also included are an appendix with additional names and information, a full bibliography, and an index. Some of the men who impacted and affected multiple sections of American society are found in appropriate chapters, often with additional information when they are mentioned more than once. This creates some repetition in the text, but it serves to highlight the importance of these men to the new American society there are also many photographs included.

In correspondence with the author, I was told that over three years of research went into this particular work and the response to it has been tremendous on several fronts. Mr. Hood included a quote from Robert E. Lee written during the post-war years during his tenure as president of Washington & Lee University. Lee wrote, in words that still apply today, “I think it the duty of every citizen in the present condition of the Country, to do all in his power to aid in the restoration of peace and harmony.” I believe Mr. Hood has done his part to live up to these ideals in Patriots Twice.

Inspired by the current cultural, political and scholastic movements, the stories and information provided by Mr. Hood in Patriots Twice are especially poignant and important in light of the removal, relocation, and destruction of Confederate monuments and cemeteries we see in our country today. Reading about how our ancestors were able to set aside their differences to rebuild their broken country is a lesson worth learning for all Americans. I strongly encourage you to read this book and learn these lessons for yourself.

Interview with the Author, Sam Hood, by the TVCWRT reviewer Lee Hattabaugh

Lee Hattabaugh: What prompted you to write this book?
Author: Sam Hood: Like most rational people, I was appalled at the destruction of Confederate (and other) history by extremists. I thought surely former Confederates accomplished much in the reunited nation.

Lee Hattabaugh: How long did the research take?
Author: Sam Hood: I spent two years–off and on–researching, and a year organizing, writing, editing, and prepping the book for publication.

Lee Hattabaugh: I noted some repetition in your book. Could you elaborate on your intent?
Author: Sam Hood: You are right, but it was necessary due to the organization and presentation that I chose so the book could not only be something to be read for pleasure, but also as a tool for those fighting to save specific Confederate landmarks and monuments. I wanted to present my research not as a simple alphabetical list/roster, but in categories. The reason is that–for example–someone at a university is trying to save a building named for a Confederate veteran, they can go to my book, find the university, and see the CS veterans who were involved in the founding or development of the school. The same with a US military base…you can go to my chapter on “US Military” and read of the postwar US Army officers that had been Confederates. Thus, I organized the book to be a useful tool for those working to save Confederate memorials.
One problem many Confederates show up in multiple categories/chapters. For example, some Confederates were presidents of the AMA, American Surgical Society, etc, and also founded medical schools. So I had to present them in the “Higher Education” and “National Professional Organizations” categories. Also, there were former Confederates who were college administrators and also US diplomats. And, of course, even inside a chapter, if a Confederate taught at multiple universities, I had to show him in each university’s section. Take for example, people are trying to save Confederate-named buildings at Virginia Tech, and others are trying to save Confederate memorials at the US Naval Academy. Former Confederate Scott Shipp was involved in both institutions, so he had to be listed as a president in the Virginia Tech section, and also in the US Naval Academy section because he served on the Board of Visitors.
I listed a veteran in every category and section where he would apply, but I only gave a detailed biography of the veteran in one place…not everywhere he appears.

Lee Hattabaugh: What impressed you most during your research that you didn’t feel fit the purpose of your narrative?
Author: Sam Hood: I only wished that I could have included more accomplished ex-Confederates. Book size constraints dictated that I limit the number of characters.

Lee Hattabaugh: What is your next project?
Author: Sam Hood: I have no Civil War history projects on the horizon right now. The college soccer program that I founded and coached in the late 1970s-early 80s, Marshall University, just won its first NCAA Div. 1 national championship and I am organizing a pictorial book on the rise of the program.


Where Did the Ex-Confederate Leaders Go After the Confederacy Was Defeated by the Union?

Jefferson Davis, president of the Confederacy, spent two years shackled to a wall in a Virginia prison. He had many unlikely sympathetic supporters including the Pope, who advocated for mercy, and even some former enemies and abolitionists. After he was released he went to Canada and Cuba and England and eventually managed a successful insurance company, hiring only former Confederate officers. He remained an unrepentant racist and Confederate supporter until the end of his life.

Alexander Stephens, the vice president of the Confederacy, was arrested and held in prison at George’s Island in Boston until October, 1865. He was released from indemnity by Andrew Johnson, a pro-slavery, anti-Black President. He was elected to the Senate, which refused to allow him to sit was elected to Congress and became the governor of Georgia. Stephens was a rabid anti-Black racist who wrote the “Cornerstone Speech” stating the the Civil War was all about slavery and that Blacks would never be the equals of Whites.

Robert E. Lee, former General, was not arrested but joined the pro-Confederate Democrats and worked to prevent Blacks from getting the right to vote. He lost all his property and money and the right to vote. He was seen as an iconic, sacrificial Christ-like figure in the South and often had to speak against resuming the war by any means possible as many of his supporters wanted. He was used as a vehicle of reconciliation. Later, he was the very successful head of Washington College, which he built up greatly.

James Longstreet, former General and one of the best strategists of the war, became a largely mediocre businessman with little success. He was friends with Grant, who helped him and supported the Union/Republican cause, which made him a pariah in the South [as he was] seen as a traitor. In 1874 a major election battle broke out between about 10,000 white supremacists and former Confederate soldiers and about 3500 Federals, including Black troops. It was called “The Battle of Liberty Place” and was a resounding “Confederate” victory. Federal troops had to be sent in to restore order. Longstreet was shot and captured by the White faction and treated poorly until his release. He became a turkey farmer and called his farm “Gettysburg.” It was destroyed, along with his uniforms and writings and memorabilia, in a fire. He died after years of poor health, hated by the South but outliving almost all of his detractors, in 1904.

J.E.B. Stuart, cavalry general, was mortally wounded near the end of the war in the Battle of the Yellow Tavern, shot in the back.

George Pickett, a general associated with Pickett’s charge at Gettysburg, fled the country for fear of prosecution for war crimes. He went to Canada for two years until he was pardoned. He was in ill health for the remainder of his life and died in 1875, about 10 years after the war. He was always bitter about what happened at Gettysburg and never stopped blaming Lee for the destruction of his men. Over 40,000 people showed up for his funeral but his body was buried in a secret location and the massive monument built over an empty grave.

John Bell Hood was a brilliant and reckless general who arrived late to the battle of Gettysburg and was immediately wounded by an artillery shell. He was relieved by an incompetent who frittered away the South’s last best chance to win the battle or at least fight to a draw. After the war he was immediately exonerated of any crime and for a while was a successful businessman. However, about 12 years later, an economic crisis caused his business to succumb and six days later he caught yellow fever and died.

Joe Johnston was a senior, controversial general who was critical of the Confederate leadership and saw people against him everywhere. After surrendering to Sherman, the two became friends. Johnston became a marginally successful businessman with many interests in railroads and insurance. He served one term as a Democratic congressman. He caught a cold at the funeral of William Sherman and died soon after.

P.G. T. Beauregard, a capable general who often stopped Grant, became a marginally successful businessman after the war. He was frequently critical of Jefferson Davis and believed the war could have been won. Although he was virulently anti-Black, he worked hard to establish Black civil rights, telling southern leaders that they had to find a way to make it work for the good of the country

Simon Buckner, the third-ranking general in the Confederacy, was a shrewd businessman who ran a newspaper after the war. He was able to amass a large fortune and recover all of his lost property in Kentucky and reestablish himself as a leader in the community. He went into politics. He died in 1914, one of the last surviving generals of the Civil War.

Robert Ewell, wounded and captured near the war’s end, spent a year at the Fort Warren POW camp on George’s Island with 17 other generals. He became a proponent of the Union and spent the rest of his life as a modest farmer, dying quietly in 1891.

Nathan Bedford Forrest, a former slave trader, fell on hard times after the war. He ran many businesses—was corrupt and ruined them—and was not well-liked. He started, or helped to start, the KKK, and was virulently anti-Black. He made a surprising turnaround and became an advocate of civil rights and Black education, earning the enmity of the KKK and other anti-Black causes. He died of diabetes in 1877.

There are dozens of Confederate generals, some we know and most we never think of. After the war many were aided by friends and found jobs in the burgeoning railroad or insurance industries.


U.S. Public Law 85-425, Section 410, actually provided pensions to Confederate widows

The law that the Facebook post cites –– U.S. Public Law 85-425, Section 410 –– amended Section 432 of the Veterans’ Benefit Act of 1957 (Public Law 85-56), which grants pensions to Confederate widows. Section 433, which grants a pension to Confederate veterans’ children when there is no widow, was also amended.

This amendment to the Veterans’ Benefit Act does indeed expand the definition of “veteran” to include “a person who served in the military or naval forces of the Confederate States of America during the Civil War.” However, the act also clearly specifies that this inclusion applies “for the purpose of this section, and section 433,” which Jessica Owley, professor of law at the University of Miami, interpreted as a limited extension.

“This language indicates that this definition of veteran only applies for this specific reason. Congress specifically chose to state that this definition was for the purposes of the pensions,” Owley said.


Were Confederate soldiers tried for treason?

Many today might be curious why more Confederates weren’t charged, let alone tried, for treason. The discussion of treason relative to Confederate soldiers is one that found its way back to Congress this summer in a discussion over renaming military bases.

In his July 9th Congressional testimony, Chairman of the Joint Chiefs of Staff General Mark Milley called for taking “ ‘a hard look’ at changing the names of Army bases honoring Confederate officers who had fought against the Union during the Civil War.” (As Lawfire ® readers know, I’m not in the “hard look” mode on this issue as my view is that we ought to “Rename our military installations…and do it now.”)

General Milley’s rationale, as the New York Times reports, seems to center on treason:

“The Confederacy, the American Civil War, was fought, and it was an act of rebellion,” he said. “It was an act of treason, at the time, against the Union, against the Stars and Stripes, against the U.S. Constitution. Those officers turned their back on their oath.”

This raises an obvious question: why then were few Confederate soldiers tried for treason? Like so many things associated with the Civil War, the reasons are complicated.

Presidential pardons

The easy answer is that, as Politico explained in 2018, Confederates received presidential pardons which began at Lincoln’s hand:

“During his presidency, Lincoln issued 64 pardons for war-related offences: 22 for conspiracy, 17 for treason, 12 for rebellion, nine for holding an office under the Confederacy, and four for serving with the rebels.”

Lincoln had intended to issue further pardons but Congress “objected to [his] plans as too lenient.” Nevertheless, on May 29, 1865, his successor, President Andrew Johnson, issued a proclamation granting amnesty to most Confederates. The proclamation did, however, outline over a dozen exclusions, including one for senior Confederate officers like Robert E. Lee.

Lee did apply to have his citizenship restored. In 2005, Prologue Magazine, a publication of the National Archives, explained what happened:

“On October 2, 1865, the same day that Lee was inaugurated as president of Washington College in Lexington, Virginia, he signed his Amnesty Oath, thereby complying fully with the provision of Johnson’s proclamation. But Lee was not pardoned, nor was his citizenship restored. And the fact that he had submitted an amnesty oath at all was soon lost to history.”

In 1970 Lee’s lost amnesty oath turned up in the National Archives, and in 1975 Congress restored Lee’s citizenship. The joint resolution cited Lee’s contribution to “healing the wounds of the War Between the States” as supporting the action. In signing the resolution, President Ford also referred to Lee’s post-Civil War actions:

“Once the war was over, he firmly felt the wounds of the North and South must be bound up. He sought to show by example that the citizens of the South must dedicate their efforts to rebuilding that region of the country as a strong and vital part of the American Union.”

(Notably, as I mentioned in my earlier post [here], Lee very much opposed Confederate monuments.)

As for the other Confederates who might have been considered for treason, it was on Christmas Day1868 that President Andrew Johnson took the final of his several pardon actions:

[He]…extended “unconditionally, and without reservation … a full pardon and amnesty for the offence [sic] of treason against the United States, or of adhering to their enemies during the late Civil War, with restoration of all rights, privileges, and immunities under the Constitution and the laws.”

This ended the possibility of trying Confederates for treason. In the 1866 case of Ex Parte Garland, the Supreme Court said:

“A pardon reaches both the punishment prescribed for the offence and the guilt of the offender, and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that, in the eye of the law, the offender is as innocent as if he had never committed the offence.”

However, the Department of Justice concludes:

“We do not interpret this [portion of Garland] to mean that the pardon creates the fiction that the conduct never took place. Rather, a pardon represents the Executive’s determination that the offender should not be penalized or punished for the offense.”

Let’s ask ourselves, apart from the pardons themselves, could there have been other reasons that militated against the government pursuing treason cases against Confederates?

The complications of a treason charge

Treason, the only offense defined by the Constitution, is difficult to prove and rarely prosecuted. One of the elements of treason is that the “defendant owes allegiance to the government,” which is why only U.S. citizens can be charged with it. At the end of the civil war, it was uncertain as to the legal effect of secession on citizenship.

Were the Confederates U.S. citizens? Consider the case of Jefferson Davis, the Confederacy’s president.

According to a 2017 article in Smithsonian (“The Trial of the Century that Wasn’t”), Davis was imprisoned without trial for two years at Ft. Monroe. (This led “some prominent Northerners,” the Washington Post says, to complain “that Davis was being denied his constitutional right to a speedy trial.”)

Why the delay? According to Smithsonian:

“In 1867, [Davis] was prepared to argue that he did not betray the country because once Mississippi left it, he was no longer a U.S. citizen. ‘Everybody thought it was going to be the test case on the legality of secession,’ says Cynthia Nicoletti, a University of Virginia legal scholar [who is the author of] Secession on Trial… Serious people believed he had a chance of winning .”

In another article, Professor Nicoletti points out:

Official acts by the Union preceding and during the war, such as allowing for prisoner swaps and observing other rights of foreign governments under the law of nations, might have been used to bolster the argument for secession’s legitimacy.

(Additionally, in his fascinating essay published last summer, “Did Robert E. Lee Commit Treason?,” Princeton University Professor Allen C. Guelzo discusses these and other legal complications that a trial of Lee – who had also been charged with treason – would have raised at the time.)

In any event, experts tell us that the fear Davis “would be able to prove to a jury that the Southern secession of 1860 to 1861 was legal” was a key reason the government released him in May 1867.

Davis was never tried. In fact, the government essentially decided that trials of Confederates would not help the country. Historian William Blair contends:

“Northerners took a pragmatic approach to the war’s end. They realized the impracticality of trying thousands of Southerners for disloyalty in states where juries were unlikely to deliver guilty verdicts, and that continued cries of treason would interfere with the more important task of nation-building.”

There’s yet more to the story. In 1978 President Jimmy Carter signed a joint resolution restoring Davis’ full citizenship rights. Carter said:

“Our Nation needs to clear away the guilts and enmities and recriminations of the past, to finally set at rest the divisions that threatened to destroy our Nation and to discredit the principles on which it was founded. Our people need to turn their attention to the important tasks that still lie before us in establishing those principles for all people.”

A 2017 article Time Magazine by writer Olivia Waxman addressed the actions in the Davis and Lee cases. She insisted that “it wasn’t that Americans in the mid-1970s had suddenly become more supportive of the cause that Davis and Lee fought for” pointing out that the “civil rights and peace movements were in full force.”

Waxman did note, however, that some contend that “this period of increased political awareness was related to the movement to restore the citizenship of Confederate leaders.” Waxman goes to suggest why there was bipartisan support for restoring the citizenship of these two people:

“Their willingness to oppose the federal government because of principle struck a responsive note in a nation disillusioned by Vietnam, Watergate, and the Church Committee hearings,” Francis MacDonnell, a professor of history at Southern Virginia University, argues in a paper on the pardoning of Lee and Davis. “Ultimately, the national sense that the government had let down — even betrayed — average Americans helped create a favorable climate for legislation extending clemency.”

Texas v. White, et al.

The Supreme Court did not really examine the question of the legality of secession until after Davis’ release. In the 1868 case of Texas v. White, et al. (involving ownership of certain U.S. bonds), the Court held:

“When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.”

Parenthetically, as a matter of international law, the International Court of Justice in the 2010 advisory opinion about Kosovo’s unilateral declaration of independence from Serbia said:

“The Court has concluded above that the adoption of the declaration of independence of 17 February 2008 did not violate general international law, Security Council resolution 1244 (1999) or the Constitutional Framework. Consequently the adoption of that declaration did not violate any applicable rule of international law.”

Expatriation

Though secession was determined to be unconstitutional, the issue of expatriation and its application to treason prosecutions remains uncertain. Expatriation is a “voluntary act of abandoning one’s country and becoming the citizen or subject of another.” Put simply, if one isn’t a citizen of a country, one can’t betray it.

This gets complex: if a person honestly and reasonably believes he or she is the citizen of a new country which declared independence from a nation to which it was once attached, takes an oath of the allegiance to that new entity, and serves in its armed forces, would those facts vitiate the intent required for a criminal treason conviction, notwithstanding a subsequent finding that, as a matter of domestic law, the new country could not separate itself from the original nation?

Moreover, can individuals still voluntarily expatriate themselves, even if that makes them technically stateless? Interestingly, in signing the resolution restoring Lee’s citizenship, President Ford observed that by resigning from the U.S. Army and serving in the Army of Northern Virginia, Lee “forfeited his rights to U.S. citizenship.”

According to Cornell Law’s Legal Information Institute, the “history of the right of expatriation, voluntarily on the part of the citizen or involuntarily under duress of statute, is shadowy in United States constitutional law.” The Institute says that even the “constitutionality of congressionally prescribed expatriation is unsettled.”

Kawakita v. United States

Expatriation as a defense to treason was raised in the 1952 case of Kawakita v. United States. Here’s the syllabus:

“At petitioner’s trial for treason, it appeared that originally he was a native-born citizen of the United States and also a national of Japan by reason of Japanese parentage and law. While a minor, he took the oath of allegiance to the United States went to Japan for a visit on an American passport, and was prevented by the outbreak of war from returning to this country.

During the war, he reached his majority in Japan, changed his registration from American to Japanese, showed sympathy with Japan and hostility to the United States, served as a civilian employee of a private corporation producing war materials for Japan, and brutally abused American prisoners of war who were forced to work there.

After Japan’s surrender, he registered as an American citizen, swore that he was an American citizen and had not done various acts amounting to expatriation, and returned to this country on an American passport.

Held: his conviction for treason is affirmed.”

Importantly, the Court did appear to countenance a claim that voluntary expatriation could be a defense to treason since the duty of allegiance would cease with the termination of American citizenship. However, the Court found:

Tomoya Kawakita, in a photograph taken at his 1948 trial for treason. Source: Wikipedia

“The difficulty with petitioner’s position is that the implications from the acts, which he admittedly performed, are ambiguous. He had a dual nationality, a status long recognized in the law. The concept of dual citizenship recognizes that a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both.” (Citations omitted).

The Court conceded that “[o]ne who wants that freedom can get it by renouncing his American citizenship” but the facts of the case were such that it would not disturb the finding of the jury that the petitioner was, at the time of the offense, an American citizen (albeit dually with Japan).

Kawakita was decided in the context of then existing law (among other things, the petitioner cited R.S. § 1999, 8 U.S.C. § 800 which included the declaration that the “right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.”)

Voluntary expatriation still exists in U.S. law (some people renounce their citizenship for tax reasons). It would seem that, today, criminal liability for treason would depend upon exactly when sufficient acts of expatriation occurred relative to the time the overt acts required to prove treason took place.

Concluding thoughts

Let’s ask ourselves a few more questions:

Is it possible to know—particularly given the state of the law in 1865—exactly how treason trials would have played out had they taken place en masse in the post-Civil War era?

Do the pardons of the past demonstrate the country’s and its leadership’s desire for healing and reconciliation to take precedence over the pursuit of treason trials?

Even when all isn’t clear, do the lessons of the past still have much to teach us?

Some further notes:

Constitutional issues: Alert reader Don Rehkopf brought to my attention a 1915 article in the Yale Law Journal which discussed an “interesting Constitutional question” associated with the effort to prosecute Jefferson Davis. His lawyers argued that Section 3 of the Constitution’s 14 th Amendment required the indictment to be quashed: That sections says:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

Since Davis had taken such an oath, his lawyers argued that the only penalty he could suffer for having “engaged in insurrection or rebellion” or “having given aid or comfort” to those who did, was disability from holding a public office. Apparently the issue was certified to the Supreme Court but the case against Davis “died” before the Court addressed it.

(Don also noted a separate article in the 1917 issue of the Sewanee Review which discusses other legal issues, including the initial effort to try Davis by military commission.)

Lincoln:Another reader, retired Air Force colonel Mike Guillot, the editor of Strategic Studies Quarterly, noted Lincoln’s conciliatory words from his second inaugural address (“With malice toward none, with charity for all…to bind up the nation’s wounds…to do all which may achieve and cherish a just, and a lasting peace, among ourselves….”), and cited selections from Doris Kern Goodwin’s superb Team of Rivals: The Political Genius of Abraham Lincoln as illustrative of Lincoln’s view of the defeated Confederates. Specifically:

-p698: Lincoln possessed “…uncommon magnanimity toward those who opposed him….”

-p732: [Lincoln] “…hoped there would be no persecution, no bloody work, after the war was over.”

“As for the rebel leaders, Lincoln reiterated his resolve to perpetrate no further violence: None need expect he would take any part in hanging or killing those men, even the worst of them.”

[Lincoln said] “Enough lives have been sacrificed. We must extinguish our resentments if we expect harmony and union”

-p732: [Secretary of War Edwin Stanton said Lincoln] “…spoke very kindly of General Lee and others of the Confederacy,” exhibiting “in marked degree the kindness and humanity of his disposition, and the tender and forgiving spirit that so eminently distinguished him.”

Remember what we like to say on Lawfire ® : gather the facts, examine the law, evaluate the arguments – and then decide for yourself!


The Oath of Allegiance

During the War between the Confederate States of America and the United States of America and in the days following the war, the Lincoln administration and the subsequent administration coerced a significant number of Americans into signing an Oath of Allegiance also known as a Loyalty Oath or the Ironclad Oath. Early in the war, Northerners in the military or in the civil service were required to take the oath. With Lincoln’s suspension of habeas corpus (in violation of the Constitution, since that power resides only in Congress and only under specified circumstances) thousands of civilian political prisoners from the Northern as well as the Border states were rounded up and tossed into prison and they too were expected to sign the oath. As the Northern military invasion spread across the Southern states, Confederate citizens were also required to take an oath to a now foreign government. Between 1862 and 1865, for example, about a thousand adult residents of occupied Alexandria, Virginia signed the Oath of Allegiance. Perhaps the most notorious incident of the Northern oath inflicted upon Confederate citizenry occurred during Benjamin “Beast” Butler’s reign over the city of New Orleans.

Defeated Confederate soldiers were also expected to sign the Oath of Allegiance to the very government they just fought desperately to be free from. In some cases, even foreign nationals were cajoled into signing the oath, with the threat of longer stretches in a military prison. English sailors were pulled from English ships trying to run the blockade and sent to military fortresses now doubling as prisons. In some cases the sailors were treated even worse than the Northern political prisoners and Confederate POWs housed in the same prison. The English sailors were literally kept in ankle chains, were expected to sleep on the bare stone floors with no bedding and in some cases no blankets or jackets or shoes, and were denied medical treatment. On top of that, the Englishmen were reluctant to sign an oath of loyalty to the United States government because they were afraid that they might lose their English citizenship.

Some of Lincoln’s political prisoners flat out refused to sign the oath, since they reasoned that their signature constituted an admission of guilt when they weren’t guilty of anything other than exercising their Constitutional rights of freedom of speech and freedom of the press. Frank Key Howard, the grandson of the famous Francis Scott Key, worked as a newspaper editor in Baltimore and was snatched from his home in a midnight raid by Lincoln’s secret police and imprisoned at Fort McHenry along with numerous other Baltimore citizens. He was removed from his state and carted off to various military prisons, including the infamous Fort Lafayette in New York. Howard spent fourteen months in prison and never signed the oath. He was eventually released unconditionally with no explanation given for his imprisonment or his release. In 1863, he published a memoir of his prison experience, scathingly condemning Lincoln and his administration.

Lawrence Sangston, one of many Maryland state legislators also imprisoned with Howard, kept a prison diary, Bastilles of the North, and published it during the war. Sangston was also released unconditionally and without explanation, however, some his fellow prisoners eventually did sign the oath. “. . . two of my recent room mates express their willingness to swear to anything, and are frank enough to say that they do not regard an illegal oath, taken under duress, as having any moral force.” (pg. 88). Sangston not only refused to sign the oath, he also sent a rebuttal letter to the State Department with the opening line, “I have twice taken the oath so support and defend the Constitution of the United States, during the present year, and am not disposed to turn a solemn obligation into ridicule by constant repetition of it.” (pg. 88).

The crucial thing is that there were many different oaths administered with different wordings and different provisos but none of them that I have seen (presented above) were an oath to exclusively defend the Constitution. One was simply an oath of obligation not to take up arms against the United States. Most of the oaths included an affirmation to defend the Constitution and the Government of the United States – the Lincoln Government – which is a very different thing from defending the Constitution. Oaths also required the oath taker to ignore any state laws or ordinances even from their own state in spite of the fact that the Constitution was specifically crafted to protect those very same states and the citizens of those states. Another oath required the signers to pledge that they had never supported any “pretended government,” which we can presume means the government of the Confederate States of America. Other oaths demanded that the oath taker promise to support all proclamations issued by the President regarding slaves in spite of the fact that Lincoln’s famous proclamation was completely illegal. Slavery is written into the Constitution and the only way to legally end slavery is by a Constitutional amendment. No president may overturn the Constitution with a proclamation of any kind. In fact, no branch or department of the federal government – executive, legislative or judicial – may alter, overturn, abolish or amend the Constitution in any way. Two-thirds of both Houses of Congress may propose an amendment but only the States may vote to ratify an amendment to the Constitution. Additionally, the State legislatures my convene to both propose and ratify an amendment thus bypassing the Federal government altogether. To this day, the states could legally abolish the federal government as we know it and replace it with something else.

Perhaps the most galling oath of all was administered to political prisoners confined at the Old Capitol Prison in Washington, which not only forbid the prisoners from ever setting foot in any of the seceded states or to even write a letter to anyone in the seceded states but declared that they could not “cause or commence any action or suit against the officers of any loyal State, or of the United States, for causing my arrest or imprisonment, at any future time, so help me God.” (See American Bastile, by John A. Marshall, pg 415). They had to promise not to sue their tormentors for wrongful imprisonment, which indicates that the Lincoln authorities knew that what they were doing was illegal and unconstitutional.

The Oath of Allegiance was a flagrant contradiction. No one could possibly defend the Constitution and defend a government – the Lincoln administration as well as the Northern Congress – committing one Constitutional violation after another. Lincoln’s unconstitutional acts are too numerous to list here but Americans North and South were well aware of his treasonous assaults on Constitutional rights and the Chief Justice of the Supreme Court, Roger Taney, publicly censured Lincoln for suspending habeas corpus. Judge Taney could have censured Lincoln for considerably more than that.

It must have been absolutely infuriating for the Confederate parolee to have to sign a document declaring that he would “henceforth faithfully support, protect and defend the Constitution of the United States and the Union of States thereunder” along with Lincoln’s unconstitutional proclamations. The Confederate soldier was defending the Constitution – adopted nearly in toto by the C.S. government – and the constitutional republican form of government against anti-American totalitarian tyranny.

The Constitution requires exactly one person to swear or affirm an oath, and that is the incoming President of the United States. Article II, section one, clause eight, states: “Before he enter on the execution of his office, he shall take the following oath or affirmation: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”” The president is not charged with protecting and preserving the Union, the federal government, questionable acts of Congress, dubious decisions of a federal court, unconstitutional proclamations of previous presidents, the wishes of the Republican Party or any political party, or the wishes of the wealthy lobbyists who get politicians elected. The president is charged with preserving, protecting and defending the Constitution. Period.

In July of 1865, Augustus Garland, an attorney from Arkansas and a former Confederate, wanted to return to his law practice. Garland received a pardon from President Andrew Johnson, however, he was still required to take the oath before he could practice before a federal court. He still had prewar cases pending at the U.S. Supreme Court but the oath for civil servants as well as attorney’s working in federal courts required signatories to swear that they had never taken up arms for or served in an office of any government hostile to the United States. Garland petitioned the Supreme Court to allow him to return as an attorney for the Court without taking the oath. He argued that the oath was unconstitutional and that his signature on the oath would make him guilty of perjury in spite of the fact that he had already received a presidential pardon.

The Court agreed with Garland, and on January 14, 1867, granted Garland an exemption from taking an oath. Although the Court ruled the oath unconstitutional in Garland’s case, the ruling did not automatically extent to the rest of the Confederates, however, the U.S. government eventually let the oath for civilians fall into disuse.

Like so many other illegal acts committed by the North of this era, the illegality of the oath – as well as the absurdity of telling signatories to both defend the Constitution and violate the Constitution at the same time – was conveniently ignored, and drifted from the pages of history . . . gone with the wind.


Reconstruction and Rights

When the Civil War ended, leaders turned to the question of how to reconstruct the nation. One important issue was the right to vote, and the rights of black American men and former Confederate men to vote were hotly debated.

In the latter half of the 1860s, Congress passed a series of acts designed to address the question of rights, as well as how the Southern states would be governed. These acts included the act creating the Freedmen's Bureau, the Civil Rights Act of 1866, and several Reconstruction Acts. The Reconstruction Acts established military rule over Southern states until new governments could be formed. They also limited some former Confederate officials' and military officers' rights to vote and to run for public office. (However, the latter provisions were only temporary and soon rescinded for almost all of those affected by them.) Meanwhile, the Reconstruction acts gave former male slaves the right to vote and hold public office.

Congress also passed two amendments to the Constitution. The Fourteenth Amendment made African-Americans citizens and protected citizens from discriminatory state laws. Southern states were required to ratify the Fourteenth Amendment before being readmitted to the union. The Fifteenth Amendment guaranteed African American men the right to vote.


The Failure of Reconstruction and Its Consequences

Why are we here in the year 2017 still having to deal with racist morons flying the battle flag of a traitorous slaveowners’ rebellion that was defeated more than 150 years ago and other manifestations of white supremacy that draw on that utterly reactionary heritage? One of the main reasons, I would argue, is that the Confederacy was never put six feet under in the grave yard where it belonged. In the name of national reconciliation, the traitorous rebels were never properly punished. Moreover, they remained largely in control of their old plantations, if no longer owning human chattel.

The failure by the victorious Union to provide condign punishment for the secessionists and, even more so, to deprive them of their underlying economic power as large-scale landed property owners enabled them to make a political come-back later in the 19 th century, to undo much of the progressive work of Reconstruction, and to reverse the historical verdicts against them. This history of not having been thoroughgoing and stern enough against the overthrown ruling elite holds invaluable lessons for other places today with struggles against reactionaries, such as the ongoing threats faced by Venezuela’s Bolivarian Revolution.

Robert E. Lee resigned his commission from the U.S. military and violated his loyalty oath in order to side with the Confederacy. As head of the Army of Northern Virginia, he had been responsible for the deaths and maiming of thousands of soldiers including in two invasions of the North. If Lee after his surrender had been treated as a traitorous rebel instead of being allowed to live out his remaining five years as an honored college president, there would be no controversy raging today over the removal of his statue from a Charlottesville park (or about what to do with the name of that college in Lexington) since there would have been no such statue. After the end of the war, Lee and some of the other top Confederate generals were in fact indicted by the tough abolitionist federal judge in Virginia, John C. Underwood, for waging war against the United States. Indiana congressman George W. Julian urged the exemplary hanging of Lee and other leading Confederates and the distribution of their confiscated property to southern poor people of both races. However, former Confederate generals and politicians walked free, often later to reemerge as leaders of post-Reconstruction Southern white elite revanchism.

Arguably the most culpable of them all was Jefferson Davis, the president of the eleven Confederate States of America and a big-time Mississippi cotton plantation and slave owner who had served as the U.S. Secretary of War and as a U.S. Senator before secession. During the war to save the Union and end slavery, Union soldiers as they marched into battle had sung, “We’ll hang Jeff Davis from a sour apple tree.” Arrested while trying to flee the country, Davis was imprisoned for two years at Fortress Monroe and charged with treason. Nevertheless, his case was never to brought to trial. Allowed out on bail that was raised by some soft-hearted Northern liberals, he traveled widely including to Europe. After being pardoned under President Johnson’s blanket amnesty for Confederates at all levels in 1868, Davis lived on for many years unrepentant about secession and his own political role while upholding white supremacy as a revered figure for the die-hard Southern followers of the “Lost Cause.” Statues honoring Jefferson Davis exist on Monument Avenue in Richmond, Virginia (along with statues of Lee, Stonewall Jackson and Confederate cavalry General Jeb Stuart) and at many other Southern locations.

Only a handful of trials for war crimes were held coming out of the Civil War, the best-known of which was that of the commandant of the notorious Andersonville Prison Camp in Georgia, Capt. Henry Wirz, who was convicted and hanged for the gross mistreatment of Union prisoners under his watch. Even though Congress conducted an investigation, no justice was ever meted out to the Confederate General Nathan Bedford Forrest, a pre-war slave trader who had countenanced the wholesale massacre by his troops of surrendered colored Union troops at the battle of Ft. Pillow. Post-Civil War Forrest became the KKK’s first Grand Wizard. A statue of this foul criminal stands in a Memphis park in spite of the desires of city residents, most of whom are black, to get rid of it, and the state of Tennessee honors his birthday. Imagine Germany having statues and memorials to the defeated WWII Wehrmacht generals or to the Nazis who ran the concentration camps. Germany has done a decent job of coming to terms with its ugly past, but not here in the United States where racist rebels are regarded as great Americans.

The progressive political vanguard in the U.S. Civil War were the abolitionists and the congressional Radical Republicans (back when that term meant something quite different than it does today). Pushed by them, Congress passed two Confiscation Acts during the first two years of the Southern slave-owners’ rebellion. These authorized the confiscation of any property, including slaves, being used to support the rebel war effort. The enslaved themselves had taken the initiative by fleeing their owners for nearby Union lines where they hoped to be treated as free men and women. This had presented Union commanders, who were not uncommonly sympathetic to the plight of these runaways, with a dilemma on what to do when the slave owners showed up and demanded their return. Gen. Benjamin Butler, a cagy Massachusetts lawyer in command at Fortress Monroe in Virginia, had declared the escaped slaves to be “contraband” under the laws of war – i.e., property that was used to aid the enemy – and on that basis he had refused to give them back. Instead, he had put them to work for the Union. The Confiscation Acts were intended to turn Butler’s improvised policy into the law of the land. But President Lincoln, who had only reluctantly signed the bills and who rescinded the orders of two Union commanders for the outright freeing of slaves in the areas under their control, did not enforce them.

Although he abhorred slavery from his youthful experiences seeing slaves held in chains, Lincoln was not an abolitionist. He belonged to the Free Soil wing of the anti-slavery movement whose primary objection to slavery was that its territorial expansion posed an obstacle to the acquisition of land by white yeoman farmers and their ability to rise in the world. Lincoln promised in his Inaugural Address that he would do nothing as President to interfere with slavery in the states where it already existed. To satisfy the South and forestall further secession, he said he would enforce the notorious Fugitive Slave Act of 1850. Even well into the Civil War, Lincoln advocated the colonization of freed slaves in Liberia or in Central America, not the full acceptance and equal rights of them within American society (where persons of African descent had been living and contributing since at least a year prior to the showing-up of the Pilgrims), and Lincoln wanted to compensate the slaveowners monetarily for their lost “property.” When he finally issued it, Lincoln justified his Emancipation Proclamation in terms of “military necessity,” i. e., it being needed in order to undermine the South’s economic ability to wage war and in order to provide black soldiers to help fight to save the Union – not because holding other human beings in bondage was a moral wrong and blight on a nation conceived in liberty and dedicated to the proposition that all men were created equal which urgently needed to be rectified. The plan for reconstructing the post-war Southern states that Lincoln put forward toward war’s end offered generous terms to the defeated rebels, and more or less the same plan was rapidly put into effect following his assassination by his successor, Andrew Johnson. By the end of 1865, Johnson had issued thousands of pardons to individual Confederates and restored their state governments with little difference to them except that they had to repudiate the Confederate debt and accept the 13 th Amendment ending slavery.

Fortunately, Radical Republicans in Congress thwarted Johnson, a former small-time Tennessee slave owner whose interest in ending slavery came not from moral principles but from his personal sense of inferiority to the wealthy planters and his desire that their political power based on slavery be curtailed. These radicals took over Reconstruction and passed a series of laws over Johnson’s veto to provide aid to and extend and protect civil rights for the ex-slaves. Johnson who had made himself odious not only through his pro-Southern policies but also because of a Trump-like inability to control his utterances was impeached and nearly removed from presidential office. Under the Radical Republicans, the South was divided up into military districts and placed under watchful control. Most people in the North supported harsh measures at that time because scarcely a few months after the war’s end the restored state governments, full of ex-Confederates, had enacted Black Codes which enforced conditions little different from slavery and violent atrocities were being committed against black and white Republicans by white southerners in the Democratic Party unable to accept their defeat. Nevertheless, in a fateful major failure, confiscation of the land from the Southern slave-owning class to fully break their power and this land’s redistribution to the freed men and women to enable them to become economically independent of their former masters, as advocated by the congressional radicals Thaddeus Stevens, George W. Julian, and Charles Sumner, was never put into effect. What arose in the South, although some of the ex-slaves did acquire land by working hard and saving and through other means, was the system of sharecropping which left many ex-slaves still laboring on the land of their former masters.

General Sherman’s Special Field Order No. 15 issued at the end of his epic march through Georgia to the sea had given many ex-slaves the expectation that winning their freedom would be matched with a grant of land of their own, which they felt they richly deserved as compensation for centuries of unpaid labor. Sherman’s order decreed that they could settle in a coastal belt of land of sea islands and river-side rice plantations abandoned by their white owners in South Carolina, Georgia and northern Florida. Sherman’s intention in issuing the order was mainly to rid his army as it turned northward of the encumbrance of a large train of self-emancipated slaves, and their property title to the land was only provisional pending the action of Congress. However, his act was the origin of the belief widespread among the freedmen and women that they would receive 40 acres with a mule to help till the land. Lincoln endorsed Sherman’s Order. However, following Lincoln’s assassination, Johnson reversed it and, in a total betrayal of the interests of the freedmen and women, ordered the return of most of the land to its former white owners. The Union officers who had to tell them did so with great disgust.

Thaddeus Stevens, Pennsylvania congressman and chair of the House Ways and Means Committee who earned the nickname, “Scourge of the South,” was the main architect of Radical Reconstruction. Opposed to capital punishment, Stevens introduced legislation to confiscate the estates of the upper one-tenth of Confederates who held land above 200 acres or worth $5,000 or more in value. Forty million acres of this confiscated land would then be broken down into 40 acre plots and distributed to the freedmen and families for their sustenance. The balance of the land would be sold off to help pay the nation’s immense war debt, to recompense loyal citizens North and South for their losses suffered at the hands of the rebels, and to provide ongoing support for the maimed Union veterans. Doing this, Stevens believed, would punish the members of the Southern elite who had been most responsible for the rebellion and would, at the same time, revolutionize social relations in the South providing a solid economic foundation for new and proper republican institutions. “Strip a proud nobility of their bloated estates,” Stevens cried out in a speech made to Congress in 1866 urging enforcement of the existing Confiscation Acts and overriding Johnson’s opposition. “Reduce them to a level with plain republicans send them forth to labor and teach their children to enter the workshops or handle the plow, and you will thus humble the proud traitors. Teach his posterity to respect labor and eschew treason.” If the Southern elite chose instead to flee the country and go overseas, then good riddance. Stevens regarded providing land for the ex-slaves as being of primary importance over according them access to voting – finally ensured legally by the 15 th Amendment in 1870 – because that right could be subverted by the economically-powerful pressuring those folks dependent on them to vote in the way that they wanted.

In poor and declining health, Stevens dedicated the last year of his life to promoting this legislation. His radically democratic Jeffersonian plan to totally transform the South creating a new class of black and white yeoman farmers was supported by some other Radical Republicans and by the abolitionist and labor reformer Wendell Phillips. Unionist conventions of ex-slaves and poor whites held in the South passed strong resolutions and agitated in favor of breaking the power of the traitorous Southern elite by confiscating and redistributing their land to those who were in need. However, the Republican Party was coming to be dominated by Northern capitalists who were excited about possible investment opportunities in the post-war South with the ready availability of its cheap labor. Under the spectre of growing critiques of “wage slavery,” they also feared the precedent that such a measure might set for confiscating other property – such as their own. Radical Republican Senator Benjamin Wade had made a much-discussed speech in which he called for a more equitable distribution of property throughout the United States. News of the Paris Commune in 1871, the world’s first working-class government, compounded that fear for many Republicans. Thus were reached the limits of a bourgeois revolution.

During Radical Reconstruction while under the protection of federal troops occupying Southern states, governments consisting of blacks and poorer whites took power and enacted progressive reforms such as a more equitable tax system and the first free public education. Some African-Americans affiliated with the Republican Party were elected to represent their states in Congress. One striking example of the profundity of the South’s political transformation during this time period was that Jefferson Davis’s former Mississippi seat in the U.S. Senate was occupied for a time in 1870 by a free-born black Southerner, Rev. Hiram Revels, and Mississippi in 1875 chose Blanche K. Bruce, born a slave, as one of its Senators. Supported by most abolitionists although under fire for corruption, Grant’s presidential administration (1869-77) did make some renewed serious efforts to protect the new civil and voting rights of African-Americans in the South and to suppress the Klan’s terrorism in South Carolina and Louisiana. Klansmen were put on trial and jailed. At the same time, some of the formerly redoubtable congressional defenders of black rights among Republican politicians – including George W. Julian and Lyman Trumbull, the author of the Freedmen’s Bureau and Civil Rights bills that Congress had passed over President Johnson’s veto – abandoned their commitment and urged North-South white-to-white reconciliation instead. Most Northerners, including those who were avowedly anti-slavery, had always held racist views and had never shared the vision of Thaddeus Stevens and Charles Sumner for full black and white racial equality. (Stevens who died in 1868 asked to have his body interred in a colored cemetery in Lancaster, Pennsylvania as one final protest against racial segregation and inequality.)

Once protective federal troops were withdrawn from the South – the last ones being withdrawn in 1877 as part of a closed-door political bargain between the Republicans and Democrats to keep a Republican as President following a contested election – political control in the Southern states reverted largely into the hands of the former slaveocracy under the aegis of the Democratic Party. Alexander Stephens, the former Vice President of the Confederacy, was back in his old seat representing his Georgia district in Congress, and unrepentant Confederate general Wade Hampton was now South Carolina’s governor. The conservative U.S. Supreme Court aided in this back-sliding. In its 1876 Cruikshank decision, it refused to intervene in defense of the 1 st amendment right of assembly and the 2 nd amendment right to bear arms in a case involving black Republican Party members who had come under murderous attack from white Democratic Party supporters in Colfax, Louisiana. Following, in 1883, the Court declared unconstitutional the last piece of Reconstruction-era legislation passed by Congress, the Civil Rights Act of 1875 which Charles Summer fought for as his crowning (and dying) achievement that prohibited race-based discrimination in public accommodations. Some Republicans in Congress made one final ditch effort in 1890 to protect black voting rights in the South by proposing legislation to enable federal officials to monitor elections. However, this legislation was defeated through a filibuster by Southern Senators, a tactic that would be used by reactionaries to block progressive legislation for many decades.

In the “redeemed” Southern states, restrictions were soon instituted by the elite white governments that kept most blacks from voting through literacy tests, poll taxes, and grandfather clauses. Along with the ongoing racial terrorism – well over 3,000 African-Americans were lynched between 1882 and 1968 — the notorious system of racial segregation known as “Jim Crow” – separate and blatantly non-equal – was deployed in practically all walks of life to keep the African-Americans population humiliated and in a subordinate position. The Supreme Court declared this to be constitutional in Plessy v. Ferguson (1896). Racial segregation and discrimination was also used to divide blacks and working class whites and keep them from finding common cause as they had begun to do in the South under Reconstruction. By 1913, the White House had a Southern-born occupant, Woodrow Wilson, who instituted segregation in federal government office buildings. The Reconstruction years were now being disparaged as a time of misrule in the South dominated by the alleged governmental incompetence and corruption of blacks, Northern carpetbaggers and poor whites, with Ku Klux Klan night-riders and cross-burners now being portrayed as the saviors of States’ Rights and the virtue of white womanhood, a view spread broadly by D. W. Griffith’s movie, Birth of a Nation. Inexcusably, most Caucasian historians of the late 19 th and early 20 th centuries on both sides of the Mason-Dixon Line aided and abetted this inaccurate revisionist historical narrative (which is what I would be taught growing up and going to school in Virginia during the 1960s). It would take a handful of African-American activists and historians, most notably the great radical W.E.B. Dubois with his Black Reconstruction (1935), to begin to set the record straight. As Dubois observed, the ill consequences of an aborted revolution in the American South were felt not only in that particular section of the country and in the U.S. as a whole but indeed all over the world:

And the United States, reenforced by the increased political power of the South based on disenfranchisement of black voters, took its place to reenforce the capitalistic dictatorship of the United States, which became the most powerful in the world, and which backed the new industrial imperialism and degraded colored labor the world over. This meant a tremendous change in the whole intellectual and spiritual development of civilization in the South and in the United States because of the predominant political power of the South, built on disenfranchised labor. The United States was turned into a reactionary force. It became the cornerstone of that new imperialism which is subjecting the labor of yellow, brown and black peoples to the dictation of capitalism organized on a world basis. . .

As we all know, the 1950s and 1960s brought renewed forward motion in the field of civil rights for African-Americans in the South in the context of a worldwide wave of freedom movements waged by people of color. Liberal court rulings and new laws were made and enforced through federal actions, including the dispatch of troops where necessary to break racist resistance. And yet here we are in the year 2017 still having to deal with fucking neo-Confederates and neo-Nazis who march at night with torches, shoot off guns at anti-racist activists and run them down with speeding automobiles. Plus, we have a racist cretin of a President who finds “good people” among these idiots. Toppling the statuary honoring the Confederate losers – along with supporting our brave Antifa fighters — has to happen even more strongly under these circumstances. However, it’s likely that none of this awful stuff would have happened, or still be troubling us today, if the Southern society had been properly reconstructed in the first place with the leading racist secessionist rebels punished and with their land base confiscated and redistributed. Mao Tsetung once observed, “Make trouble, fail, make trouble again, fail again . . . until their doom – that is the logic of the imperialists and all reactionaries the world over. . .” And this is the historical lesson of the U.S. Civil War. Reconciliation with utter reactionaries is impossible. They will never go quietly from the stage of history. So they need to be put firmly down. Above all, they have to be fully deprived of the economic foundations underlying their capacity to re-exercise political power.

Jay Moore is a radical historian who lives and teaches (when he can find work) in rural Vermont. He was born and raised on a Civil War battlefield in Virginia. He can be reached at [email protected]

Jay Moore is a radical historian who lives and teaches (when he can find work) in rural Vermont.


All Confederate soldiers gain presidential pardons, Dec. 25, 1868

In the aftermath of the Civil War, President Andrew Johnson on this day in 1868 issued pardons to all Confederate soldiers who fought in that conflict. The president extended “unconditionally, and without reservation . a full pardon and amnesty for the offence [sic] of treason against the United States, or of adhering to their enemies during the late Civil War, with restoration of all rights, privileges, and immunities under the Constitution and the laws.”

In his Christmas Day Proclamation, Johnson said his action would “renew and fully restore confidence and fraternal feeling among the whole, and their respect for and attachment to the national [e.g., federal] government, designed by its patriotic founders for the general good.”

As the vice president, Johnson, a Tennessee Democrat, had succeeded the assassinated Abraham Lincoln to the presidency shortly after the Union victory.

On Dec. 8, 1863, in his annual message to Congress, Lincoln, the first Republican president, had outlined his plans for reconstruction of the South, including amnesty terms for former Confederates. A pardon would require an oath of allegiance, but it would not restore ownership to former slaves, or restore confiscated property that involved a third party.

As Lincoln further envisioned his actions, his pardons would have excluded officeholders of the Confederate government or persons who had mistreated prisoners.

Population boom could remake 2020 map

Congress, however, objected to Lincoln's plans as too lenient and refused to recognize delegates from the reconstructed governments of Louisiana and Arkansas. With radical Republican lawmakers in full control of the legislative agenda, Congress instead passed the Wade-Davis Bill. This measure required half of any former Confederate state’s voters to swear allegiance to the United States and that they had not supported the Confederacy. While the bill also ended slavery, it did not allow former slaves to vote. Lincoln vetoed the bill.

During his presidency, Lincoln issued 64 pardons for war-related offences: 22 for conspiracy, 17 for treason, 12 for rebellion, nine for holding an office under the Confederacy, and four for serving with the rebels.

Under the terms of surrender for the Army of Northern Virginia at Appomattox Court House on April 10, 1865, Gen. Ulysses S. Grant stipulated that “each officer and man will be allowed to return to his home, not to be disturbed by United States authority so long as they observe their paroles and the laws in force where they may reside.”

On May 5, 1965, the paroles were further extended so that soldiers from the 11 Confederate states, plus West Virginia, would be allowed to return home, but that “all who claim homes in the District of Columbia and in states that never passed the Ordinance of Secession (Maryland, Kentucky, and Missouri) have forfeited them and can only return thereto by complying with the amnesty proclamation of the president and obtaining special permission from the War Department.”

SOURCE: “This Day in Presidential History,” by Paul Brandus (2018)


History Test Civil War

o He had the abolitionist printing press-
• General assembly believes that the abolition of slavery will not make it less evil, but that it will actually make it more evil.
• They believe that the congress of the US government has no right from the constitution to interfere with slavery in the states.
• The congress has the right from the constitution to abolish slavery in the District of Columbia, but only if they are given permission to do so.
• Slavery was guaranteed in the constitution, he believed that slavery was bad, but he can't do anything about it because congress doesn't have the right to abolish slavery. As the president of the US, it is his responsibility to uphold the constitution, in doing so, he cannot abolish slavery.
o It appears that Lincoln is personally opposed to slavery, but it is constitutional
• He basically says here early, in 1837, there is not much that congress can do because there are constitutional guarantees.
Document #2:
• We do not know when this was said- probably sometime between 1837 and the 1850's
• Proposes the argument that if person A can have the right to enslave person B, then why cant person B have the right to enslave person A? —VERY interesting point ☺
o They claim that it is the white man who can enslave the black→ this implies that it is the color of ones skin which determines their right to enslave, so basically this means that any person with any bit of darker skin than you must be enslaved. this is controversial you see.
• If people use this argument to say that it is not color that enables the enslavement, but intellectual superiority, then this is also sticky, because it means that anyone smarter than you intellectually can also enslave you.
• If you say it is a question of interest- that if you have the interest to enslave, then if someone else has the interest to enslave YOU, then they have the right.
• This is an intellectual exercise- wrestling with the issue of slavery
• This document is arbitrary
o Commenting on why one person is enslaved in society and why the other is not.
• He needs to remain practical- he cant just say he is an abolitionist, but he is leaning in that direction.
Lincoln is turning all of the arguments around to show that they are really not very strong and can be easily manipulated.

The South Surrenders: Grant and Lee at Appomattox

Confederate soldiers were given parole slips, had to surrender weapons but were allowed to keep everything else and were told to go home. Were not put on trial for treason.
Lee was the only person put under house arrest, not charged for treason
Malice towards none, and charity for all, goal is to bind up nation not harm them

Jefferson Davis and Alexander Stephens were charged with treason but never tried



Comments:

  1. Donte

    I can consult you on this question and was specially registered to participate in discussion.

  2. Kemen

    You are not wrong, are you

  3. Alim

    This is a funny phrase.

  4. Maugore

    Absolutely agrees with you. In this something is and is the good idea. I keep him.

  5. Mabei

    Totally agree with her. Great idea, I agree with you.



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