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.
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.”
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:
“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.
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 14th 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!