Man Without Qualities

Friday, January 24, 2003


The recent flap raised by TIME's false report about Jefferson Davis has caused some people to assert or wonder if Confederate soldiers were "traitors." If so, it is odd that there is a monument to them in Arlington Cemetery.

The Constitution actually defines "treason" and gives Congress wide (but not unlimited) power to prescribe penalties for treason:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Congress has, from the beginning chosen death as one possible punishment - although the penalty can be less by statute. Since the federal treason statute has always allowed imposition of death for treason, if Confederate soldiers were actually, legally "traitors," then they were all potentially subject to execution after their surrenders, trials and convictions. In my view, the belief that the United States Constitution and federal statutes would permit - even in principle - the mass execution of millions of surrendered Confederate soldiers is unwarranted, to say the least.

Yes, an argument can be made - and, during and after the Civil War and again during the past few days, was made by some hotheads - that all Confederate soldiers were "traitors." Didn't Confederate soldiers engage in "levying War against [the United States], ... adhering to their Enemies, giving them Aid and Comfort?" So wasn't the sparing of these millions of lives just a discretionary act of mercy - or an attempt to heal the nation after the Civil War? A gesture that could have been foregone?

No. The Confederate soldiers were probably not "traitors" - at least not generally.

First, it is completely obvious and beyond dispute that not everyone levying War against [the United States], ... adhering to their Enemies, giving them Aid and Comfort commits treason. Adolph Hitler was many bad things, and he did all those particular bad things, but Hitler did not commit treason against the United States because he was not an American.

And that's a big problem with the argument that Confederate soldiers were traitors: Confederate soldiers arguably cannot be traitors to the United States, because they were not U.S. citizens in the sense necessary to satisfy "treason" laws; to be a traitor, you have to be a "citizen" of the nation you betray, and Confederate soldiers were citizens of the Confederate States of America.

But one might object that this counterargument is no argument at all, simply because it depends on "recognizing" the Confederate States of America - which was never a legitimate country in the first place.

The argument that Confederate soldiers were traitors arguably relies upon a modern understanding of citizenship that was not universally accepted in the early 19th century. Before the Civil War, both Northerners and Southerners did not see themselves primarily as citizens of the United States, but of their separate states. It is true that the United States now asserts a generally accepted general citizenship (that's one reason Lindh is probably a traitor) - but the right of States to secede and terminate their citizens' federal citizenship was hardly a bizarre or unreasonable assertion prior to the Civil War. Some New England states considered secession in the early 19th century. To hold an ordinary soldier to be a "traitor" on the strength of such considerations is just wrong in that it attributes to ordinary people vast knowledge about uncertain and unsettled matters of constitutional and international sovereignty and law. I have never seen a jot to suggest that Lincoln thought that these men were "traitors." Indeed, Lincoln's Proclamation of Amnesty and Reconstruction notes only: "a rebellion now exists whereby the loyal State governments of several States have for a long time been subverted, and many persons have committed and are now guilty of treason against the United States." It's a stretch to argue that an ordinary Confederate soldier aided in the "subversion" of any state government. That construing Confederate soldiers to be "traitors" leads inevitably to the monstrous conclusion that these millions of men could have been executed following their surrender should be enough to convince any reasonable person that this is not the meaning of the Constitution.

The meaning of the "treason" clause has been open to doubt and change. Two of the rebels involved in the 1794 Whiskey Rebellion were convicted of treason, but were later pardoned by President George Washington. The events before and after the Whiskey Rebellion are said to have informally redefined the word treason, allowing for disagreement with the U.S. government without being considered treasonous. Even John Wilkes Booth's co-conspirators in the assassination of President Lincoln were charged not with treason, but with criminal conspiracy to aid the rebellion and with murder.

While the matter appears not to be free from doubt - as many of the more squirrelly legal opinion letters begin - Confederate soldiers were not "traitors."

UPDATE: In my opinion Josh Chafezt has not brought the matter into focus. There is a big difference of status between Confederate leaders (especially high ranking officers and those in the legislatures of the Southern States who actually voted for secession) and ordinary Southerners and Confederate soldiers. Was a Confederate draftee a traitor as far as Mr. Chafezt is concerned? Did ordinary soldiers have some obligation to revolt or be accused of "treason?" How about any slaves who provided the Confederate army with supplies? Does the madness stop anywhere short of infancy? Or did the Union just have the option to execute most Southerners as "traitors?"

And the article to which Mr. Chafezt refers his readers doesn't even begin to answer the questions here. It would also be nice if an esoteric article such as this one included, for example, some analysis as to why the original constitution didn't just say that states couldn't secede. The Constitution is now generally understood to have had as one likely source the Haudenosaunee (Iroquois) Confederacy - whose Law of Great Peace provided for the matter expressly:

Treason or secession of a Nation
92. If a nation, part of a nation, or more than one nation within the Five Nations should in any way endeavor to destroy the Great Peace by neglect or violating its laws and resolve to dissolve the Confederacy, such a nation or such nations shall be deemed guilty of treason and called enemies of the Confederacy and the Great Peace.
It shall then be the duty of the Lords of the Confederacy who remain faithful to resolve to warn the offending people. They shall be warned once and if a second warning is necessary they shall be driven from the territory of the Confederacy by the War Chiefs and his men.

So why didn't the Constitution answer the question expressly one way or the other? The Iraquois understood that the answer to the question couldn't be left as implied by structure - and the Framers drew on the Iraquois structure. And what about the fact that the Colonies had just gone through a Revolution which depended for its own legitimacy on their unilateral right of secession from Britain? And what about the historical fuss raised by England's unilateral secession from the Catholic Church - incidentally ignited by Henry VIII's assertion of his right of unilateral secession from his marriage? The issue of secession wasn't exactly something we can presume the Framers just overlooked. The need for this article to muster all manner of esoteric considerations to bolster the Lincoln/Union view just shows how unsure the answer really is. Is the status and life of an ordinary Southerner or Confederate soldier as a possible "traitor" supposed to depend on such academic gymnastics? God help us all.

The Minute Man is collecting cites.

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