Year: 1873

1 know that shall ind my rose .. ..


Fresh bloOIniay just within the portal.
-7-=--------


Judge eIiE1ord and JefT. Davis.


..A.t


The revelation Of Judge Clifford
at dinner party recently eongrega-
ted in Charleston, South Carolina,
in compliment to him as to the
abandonment of the prosecution
against jefferson Davis for treason,
can surprise no intelligent lawyer,
although this capulous exposition Of
state secrets must deprive, in a
large measure, the man then in con-
troll of federal power Of the credit
for magnanimity in the 7lOlIe prose
qut entered TO the indictment
against the late Confederate Presi-
dent heretofore awarded them by
the south. The public now learn
that Mr.. Dayisis prosecution ceased
not from motive ofpolicy, not from
suggestion of magnanimity and
without the inspiration of a, wise
craftsmanship, but because ofthe in
trinsic legal difficulties in the way of
maintaining such Indictment OF
course, learned lawyers knew this



did not. But Judge Clifford ought
to have been more candid than the
report of his festive conversation
shows him to have been in stating
with legal accuracy the points in
the way of the government prosecu-
ton. He was, perhaps, afraid of


fgiving aid and comfort" to the late
Confederates. This was a foolish
apprehension, and put the learned
Judge in rear of the times. Things
will move all the more smoothly
when the north not only ceases to
taunt the south for treason, but like
wise ceases to hold the delusion that
the people Of the late Confederate
States were really guilty Of treason.
Judge Clifford, instead of covering
up the true legal incapacity of at
tributing to our people the crime of
! treason for the late civil war under
I a cloud of insincere and inaccurate
verbiage as that the Claws OF the
] United States are not so construct
ed as to afford any certainty of pun
ishing high treason or rebellion, or
under the more general words of
Burke, quite applicable to the iRSuT-
gent American colonies, but utterly
| inapplicable to resisting States
that there was "no way to write an
Indictment of a whole people,
should at once have put the legal
point clearly, that Federal constitu-
| ton had utterly failed to define the
| levying of war by one or several
States of the Union against federal
government as treason. In other
words, or several States of the fede-
raj Union might engage in a war
with the other States of that Union
without bringing the people thereof
within the treason defined by the
federal constitution. This was the
true legal impediment in the way of
successfully maintaining the indiet-
ment against Mr.. Davis. An i'm
pediment which doubtless was seen
by the conclave Of northern iurists
represented by Judg Clifford as hav--
| ing met in consultation about this
state case, the result ofWhose delib-
erations was the withdrawal OF the
government from the prosecutions.


The laws OF the United States were
ample for the punishment of what
ever was intended to be treason by
the federal constitution. 1t was an
evasion. for this eminent Judge to ex-
cuse the n0LLe on the ground of in
completeness of federal laws for pun
ishment of treason, The only diff
Guilty was that the acts Of Mr.. Davis
and the people~0f the Confederate
States eceTe not treason. We hGp-
pen ts~know that this question was
mHeh discussed by q few of the lead
ling men in the~afmy Of the Tenn.
| toward the conclusion of the war
A lawyer now e member of the
Memphis bar and in that army was
asked his opinion on this point.
After mature consideration he adj
vised that the federal constitution,


in its definition of treason, couldnot
| be construed as embracing the acts


of war by the people of the States
| acting under the authority OF the
| State governments. He further sta


ted that the supreme court of the
United States would never so hold
unless it was converted into a reYo--
lutionary tribunal, and he did not
deem such result as among even
the chances of eYentualities most
unfortunate for the south in the


then pending struggle. We may
\ some day present his argument then


made. We know he had it in con-.
temptation, If the trial of Mr.. Da-


Wis ever come of to tender to him a
\ brief of this argument He always
Nsaid, however, that the government


would never bring the case to trial.


Itseems that he was right all.thro'.


The federal jurists could not con-


strue, as to the matter of treason,


the constitution otherwise than he
did. The supreme court did not
become q revolutionary tribunal,


and the government did not bring


the case on. This is all as it should


be; but let northern jurists csndidly
tell their people the true law of the


case, and disabuse their minds of


the idea that the people of the south


are merely pardoned traitors, exist


ing alone by their forbearance.


Such information will preclude re-
proaches CALLING to the south, and


reanimate in its people federal na-


tionality. by a recognition of its


truth and honor. When the north


shall regard the late war as a strug-


gle between coequal States, and not


as individual insurgency, then per-


feet harmony viii be restored.-


appeal