A Question of Treason?

By Joan Wenner, J.D. · Originally published October 2020 · pp. 1–5

It has been quoted that treason; the only offense defined by the Constitution, can be difficult to prove and is rarely prosecuted against U.S. citizens, although Confederate President Jefferson Davis is often cited as an example. Though imprisoned at Fortress Monroe, Davis was never tried. His Vice President, Alexander H. Stephens, was arrested and imprisoned after the war but soon released and later served Georgia as a U.S. senator and as governor. Historians say the government essentially decided trying the Confederates would not help the country. In actuality, the Constitution does not directly mention ‘secession;’ the Supreme Court labels the government as “indestructible.”

Treason – 1860 Briefly, the “President and Congress have the whole of the political, national and inter-state power of the Union…;” “the states have no power to form a Confederacy within the Union composed of any of its States.” Additionally, the states have no right to organize an army or navy or make war or invade “any other states by military power, or to seek to divide or disrupt the Union, or defeat by force or menace the execution of Congressional acts for the use of any State, or the Southern Confederacy, any fort, Custom house, mint, or vessel of the Union…those acts are treason, whether done by private persons, or armed men, or officers of a Southern Confederacy, State Legislatures or State Conventions.” Note: This was a scholarly Constitutional law work on the Law of Treason by Gardner’s Institutes (a publisher of U.S. law books) prepared in 1860, and subsequently printed by the New York Times newspaper on April 21, 1861. To extend the interpretation, those who would aid, if done with knowledge, the existing Southern conspiracy by loaning money to, or in making, selling, transporting arms, munitions, clothing, supplies, or anything for the rebel armies, “are traitors.” News articles, state proclamations, or any act levying war, armed meetings are treasonable, “if in the smallest degree aids and encourages the treason by levying war at a remote point.” “That secession is treason and subject to capital punishment.”

Treason today – United States Code, Title 18 Sections 2381-2385 U.S. STATUTES, Title 18 United States Code, Sections 2381, 2382, 2383, 2384, and 2385 based on Public Laws, 1909, and as amended in 1948, and subsequently increasing penalties for violation. Most basically for our purposes here: Section 2382, Treason – Whoever owing allegiance to the United States, and having knowledge of the commission of any treason against then, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some

Print showing Robert E. Lee and 21 Confederate generals. A. (Augustus) Tholey, artist. Library of Congress. judge or justice of a particular State, is guilty of misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both. 18 U.S.C. Section 2383, Rebellion or Insurrection Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both, and shall be incapable of holding any office under the United States. 18 U.S.C. Section 2384, Seditious conspiracy – Relates to conspiring with others “to overthrow, put down or to destroy by force” or “prevent, hinder, or delay of any law of the United States” – or take or possess any property of the United States – can get you twenty years. Section 2385 covers Advocating Overthrow of Government. Civilian military activity and organizations “subject to foreign control” are covered in subsequent sections.

Were Confederates tried for Treason? It has been noted that, due to the massive newspaper coverage of the Wirz Tribunal and the lack of trials against major Confederate leaders such as Robert E. Lee, it appeared to average Americans, both North and South, that Wirz was the only person tried, convicted, or executed after the war. President Andrew Johnson on May 29, 1865, issued a proclamation granting amnesty to most Confederates, except for Robert E. Lee, who did sign his Amnesty Oath on October 2, 1865, but was not formally pardoned. According to a 2018 report by Politico, “Lincoln had issued 64 pardons for war-related offenses; 22 for conspiracy; 17 for treason; 12 for rebellion; 9 for holding an office under the Confederacy; and 4 for serving with the rebels.” One of those convicted during the war of treason was a

U.S. Congressman, Clement L. Vallandigham, who was banished to the Confederate States.

Civilians Executed for Treason? How many, if any, were tried for treason may not be accurately calculated, but we do know one, William Bruce Mumford, a North Carolinian residing in Union occupied New Orleans, was convicted and hanged in June 1862 for tearing down a U.S. flag flying over the U.S. Mint. ‘Treason’ was said to have been devised as a deterrent to criminal disloyalty. It appears that civilians charged with treason, for the most part opted to be tried in a civilian court. The ‘battle’ to prevent military tribunals from claiming jurisdiction over civilians has been fought, it’s said, since the country was founded; due process and right to a trial by jury of one’s peers being compelling arguments. This right includes employees of companies engaging in suspect activities, and presumably for Southern state government employees and officials. Confederate officers, enlisted men, and government agents may have been regarded differently.

Were U.S. military officers guilty of ‘treason’ when they resigned their commissions to serve in their home state military/ militias? This question, and whether today they should forever be named ‘traitors’, or should have been duly charged as such, will likely always be debated by those in the Civil War history community and others. The North and the South contained determined men ready to fight wrote the chronicler of the Civil War, the late author and highly recognized expert Bruce Catton in his well-known series of three 1961 volumes. He included a quote from the Charleston Mercury newspaper dated March 6, 1861, “That the United States has become a mobocratic empire and the Union of the States is now dissolved.”

Early in the thirty-seventh Congress, Catton noted “that the word ‘treason’ was used often” in considering eight Southern Senators who were expelled since their seats had already been declared vacant because their states had left the Union. Catton also quoted a California senator who said, “Treason was always a gentlemanly crime, and in ancient times a man who committed [it] was entitled to the axe instead of the halter.” Catton also reminded readers that there is the age-old rule that one does not trade with the enemy in wartime, but pointed out the two nations fighting the war were not foreign enemies; they were simply estranged halves of an economic whole, and the necessity for an exchange of essential goods between the Northern and Southern states had to go on, and it has. Send comments to: [email protected].