Tuesday, August 15, 2017

Documenting the Confederacy, Part 1: The Confederate States of America and Treason

Second flag of the CSA, the "Stainless Banner", incorporating the
battle flag of Lee's Army of Northern Virginia on a field of white
to represent "the heaven-ordained supremacy of the white man
over the inferior or colored race"

The states of the Confederacy (the "CSA") declared their secession from the United States (the "Union") in a collection of documents which are called the Ordinances of Secession.  Several of the CSA also issued "Declarations of Causes" which provide supplementary information.

For those who haven't kept track, the eleven states of the CSA were: South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, Texas, Virginia, Arkansas, Tennessee, and North Carolina.  They formed a self-proclaimed nation in 1861 after the election of Republican Abraham Lincoln and fought the Union until 1865, when they were defeated.  The last four states listed (Virginia, Arkansas, Tennessee, and North Carolina) did not declare their secession until after the attack of Fort Sumter by the other seven secessionist states.

No foreign government ever officially recognized the CSA as an independent country.  According to US precedent (notably SCOTUS Texas v. White), unilateral secession is an impossibility because the Constitution creates an "indestructible" union: the Articles of Confederation call the Union "perpetual" and the US Constitution created a "more perfect union".
[Salmon P.] Chase, [Chief Justice], ruled in favor of Texas on the ground that the Confederate state government in Texas had no legal existence on the basis that the secession of Texas from the United States was illegal. The critical finding underpinning the ruling that Texas could not secede from the United States was that, following its admission to the United States in 1845, Texas had become part of "an indestructible Union, composed of indestructible states." In practical terms, this meant that Texas has never seceded from the United States. (Pavkovic & Radan, 2007, p 222)
 Precedent leaves open the possibility of successful rebellion (as the CSA did not achieve) or an Act of Congress permitting secession.

Legalistically speaking, so far as the United States and the rest of the world is concerned, the CSA never existed as an independent nation.  Had they succeeded, they would have.  Because the CSA never legally existed, the taking up of arms against the Union met the definition of treason in 18 US Code 2381:
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason...
During the war, President Lincoln had issued a number of pardons for treason and rebellion.  President Johnson chose not to have wholesale trials of 3/4 million soldiers who served in the Confederate Army.  Instead, he issued a series of general pardons, with a large number of exceptions. In a final act on Christmas Day, 1868, President Johnson declared:
unconditionally, and without reservation, ... a full pardon and amnesty for the offence 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 ...
Meaning that that vast bulk of Confederate participants in the Civil War were granted a pardon for Treason.

Why is that significant?  One word: Burdick.  OK, three words: Burdick v. US.

Burdick is a 1915 SCOTUS decision that clearly establishes an individual is allowed to reject a pardon.  As a result, the state cannot compel testimony covered by the 5th Amendment by offering a pardon -- the defendant must accept the pardon.  In accepting a pardon, however, one confesses guilt of the crime pardoned:
This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it.
Thus, any member of the Confederacy (in particular any member of the Confederate Army or Navy) who accepted their pardon and was not tried for treason confessed to the crime of treason against the Union.

One specific person of note, however, attempted to confess and was denied for 110 years, then accepted retroactively.  General Robert E. Lee, specifically covered by exception to the general pardon because he resigned his commission in the US Army to serve in the Confederate Army, and because his rank was above that of Colonel in the Confederate Army, made application to President Johnson on 13 June 1865:
Being excluded from the provisions of amnesty & pardon contained in the proclamation of the 29th Ulto; I hereby apply for the benefits, & full restoration of all rights & privileges extended to those included in its terms. I graduated at the Mil. Academy at West Point in June 1829. Resigned from the U.S. Army April '61. Was a General in the Confederate Army, & included in the surrender of the Army of N. Va. 9 April '65.
Lee signed an Amnesty Oath on 2 October 1865, complying fully with Johnson's general pardon proclamation.  But Lee was never pardoned while alive, and President Ford signed a joint congressional resolution making the pardon effective 13 June 1965.

And thus, 110 years after the end of the Civil War and 105 years after his death, General Robert E. Lee confessed to treason against the United States.

Part 0: Introduction
Part 2: Documenting Secession: South Carolina

(Edit 2017.08.16: removed double quotation marks; fixed white background; replaced "Articles" of Secession with "Ordinances" of Secession; added 's' to Article(s) of Confederation)
(Edit 2017.08.17: corrected 1968 to 1868 as year of Johnson's final pardon; corrected 'effecting' to 'effective')