Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-06-07
1tniun and Smrrifan.
THURSDAY. JUNE Z. 1866.
GERRIT SMITH OPPOSING ANY
TRIAL OF DAVIS.
His Letter TO chief Justice Chase.


not the laws Of war. But neither Jefler
son Davis nor any Of his fellow revolution
lists are under the Constitution: nor hav
they been, since the contest they embarke,
in became civil war They are under th,
law Of war-under the law Of the conquero
AS exclusively ~ would be Mexico, were
it she, instead Of the South, that we hav,
conquered. In saying crclusirety, ] do no
forget that our governmental action Is 10 the
contrary. But this hybrid action-this veal
and cOwardly vacillatiOn between the Con
stitution and the law Of war-this dealing
with the South, now under the one and now
under the othcr-provcs nothing but its own
ab-urdity. The South, if peace between her
and the North is restored, Is again under the
Constitution. If il is not restored, land her
misrepresentation in Congress and our
troops in the midst Of her are amongst the
things which prove it is not then is she still
under the law Of war. Under this law let
her be punished for her violations Of this
llw-be it for starving our prisoners, for
aasas-inating our President, or for slaughter
ing on the battlefield our surrendered priso-
ncrs. Under this law, if they participated
in any of these crimes, let even her DaviseS
and Stcphcnscs and Lees be tried and, !
add, that for no oncnse whatever should they
be- tried by any other than a military court.
But why do put the South on the foot
ing of "a conquered nation? ! do so, lst
Because in the light Of the tcachicg5 Of the
wiscst and most advanced publicists, she is
on it; ID, Because our Government is COM
mitted by its own acts during the war to re-
gard the South as on this footing; and Sd,
Because Of the abundant and conclusive
reasons there are why publicists should have
taught rs they did, and why our Govern
mcnt should have acted as il did.
lst 4 few citations will show that | have
not mistaken these teachings. Nattel says
" But when a nation becomes divided into
parties absolutely Independent, and no
longer acknowledging a common superior,
the state is dissolved, and the war between
the two stands on the same ground, in every
respect ~ a public war between two differ
ent nations They decide their quarrel by
arms, as two different nations would do.
The obligation to observe the common laws
Of war towards each other, is therefore alb
solute indispensably binding on both par
ties, and the same which the laws Of nations
imposes ON all nations in transactions be
tween State and State"
As precisely our case is this as if Nattel
had us, and Us only, in his mind.
llallam Macaulay, Welcker, unsurpassed
authorities on such subjects, and all Of our
own enlightened day, fully sustain Nat!el.
In speaking of civil war, Hallam says:
The vanquished are TO be Judged by the
rules of nations, not of municipal law"
Macauly SAYS that, in such case:
The vanquished ought to be treated ac
cording TO the rules not Of municipal but Of
international law"
And Welckcr says:
His tthe leaders, followers are also more
or less punishable as aidcrs and abettors, as
long as their number has not grown so large
that he or they act with the consent Of the
nation, or that 4 division Of the nation has
taken place into hostile camps In the latter
case the rebellion becomes civil war: the
right has become doub,ful and Is left, As in
the wars between several states, to the deCi-
sion of an Almighty judgment (Gotes-
gcricLLl Under such a presumption every
citizen is bound to declare himself for tho
one or the other party according to the
wise law of Solon he is bound 10 do ito
20 either right or left > and that neither
blame nor punishment can reach him, what
ever :he result Of the battle may be. Then
there are only victors and vanquished-not
lovalists and criminals. And although it is
difficult to state the precise moment when
rebellion ceases and civil war commences,
there nevertheless exists an essential differ
cnce between them, and when the moment
has arrived, il is then for the victorious
party to extend clemency, and even no pun
ishment at all-ior prudence and humanity
would dictate such a course
In the article "Treason" in the New
American Cyclopcdia, said to be written by
our fellow-citizcn, Dr. Lieber are the fol-
lowing lines:
"No one incurs the guilt Of treason by an
adherence 20 a King or government dc Jdcto,
the Fling or government has but
the right of a successful rebel, and loses all
10y a subsequent defeat
ID. That our government is committed by
its acts TO deal with the South as with con-
quored nation is manifest in the light Of the
character Of these acts. Ii followed other
nations and recognized the belligerent rights
Of the South-its Supreme Court unani-
mously recognizing them. Ii blockaded
her ports. Ii Itcxchanged prisoEcis with her.
j negotiated with her for peace-and in one
Of these negotiations our Commissioners,
who went mere than half way 10 meet hers,
were no less than the President and the
Secretary of State In a word, it came into
a clear understanding with the enemy, that
the war should be conducted according TO
The law of war.
do not forget that our Order No. 100 in
] S63 is quoted 20 prove that we therein ap-
prised the enemy that, il final Y vanquished,
ie would be held for treason. Nor do for
get that Presipent Lincoln's proclamation
of amnesty implied that the case was still
one of treason. But these were all CT pdrtc
rs well as en- post tdci0 papers, and had,
therefore, no power TO repeal nor in any
ways modify the understanding between the
parties emphatically not whilst the
parties were continuing 10 act upon that un-
lerstanding. The same is true of any act
Of Congress touching the case And, Just
here, let me say that, since there was no
treason 60 pardon, President johnson had
po pardoning TO do. pardons TO Southern
men are no more in place than would be
pardons 10 Englishmcn had we conquered
England.
3. | will advert 70 a few of the abundant
aud conclusive reasons which Justify these
eminent writers on public law in taking the
ground IN question, and which, therefore.
Justify our Government in having virtually
taken IT,
\. 4 mere insurrcction Is to be put down
bv municipal or local law. But when the
strife rises into the dignity and dimensions
nr a civil war, the helligcreniS are too num-
arous To Ice held As traitors. Says Edmund
Burke: 81 do not know the method of draw
ing up an Indictment against whole peo-
pie" Nor j. the objection 20 treating them
IT, f,,gf.al ,f ssYaY,,i.a a., ,r1r .,,rar-
rome hv pardoning all but a few The stig-
ma of treason should not come upon any Of
pr them: and the pardon hut fastens it, in
stead of winiug il of BY the way, the
spirit of Republican institutions utterlv
forbids this distinction between the many and
the few-this holding only the prominent
few responsible, and reducing the many TO
mere cyphcrs They, who chose Davis and
for Office, were rs responsible for
their choice aS were Davis and Stephens for
20 il. As reasonable would II
hc 10 punish the chosen in the choosers as
the cheosers In the chosen. If We punish
Davis and Stephens, consistency requires Us
IN punish thousands; and if we let the thou
sands 90 UNPUBLISHED, consistency requires
ms 10 let Davis and Stephens go unpunished.
4 when vast numbers take a very inn
portant STEP il is not Only reasonable TO be
iieye that thew think they have much ground !
for IT, hut il is also reasonable TO believe that
they really have some ground for It And
in this connexion let me add, that If gov
ernment is entirely just toward all its sub
jeCts it is hardly supposable that any con-
siderable share Of them will ever be found
ARA yed against IL. That revolutions occur
l. ~ he asrrihel mainly and well-uigh uni