Belief 1 - Reading 5 of 10, The Reconstruction Convention

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Belief 1 - Reading 5 of 10

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THE PLEA FOR DAVIS

Harper's Weekly, June 24, 1865, pages 386-387 (Editorial)

Mr. Gerrit Smith is a gentleman who deserves the utmost honor for the generous devotion of his liberal talents and large fortune to the most humane purposes. He has been always the friend of the friendless, and no nobler praise could be given to any man. Mr. Smith urges clemency toward the chief rebel leaders. Mr. Smith says that we have no right to treat them as traitors. He urges that when we agreed to wage war with them according to the laws of war, we conceded that they were not traitors, but belligerent enemies, and we are bound to treat them accordingly. A rebellion, he argues, is not a riot; and he quotes Vattel to the point that a civil war, conducted by armies in the field, dissolves the State, and places the contending parties in the position of contending nations. Let us look at this statement.

The Constitution defines treason as levying war against the United States. A riotous resistance of the national authority is not enough. The resistance must be large, organized, threatening. It must be more than a riot. It must be levying war, which is not a matter to be disposed of by reading riot acts and deploying constables. War is levied by armies and navies, from forts and ships, by shot and shell. War can be resisted only by war, and must of necessity be regulated by the laws of war. But, says Mr. Smith, whenever war is levied by citizens against the Government upon a scale large enough to compel the Government to subdue it by the means and laws of war, those citizens cease to be traitors, and to punish them as such is the meanest of crimes! In other words, treason is resistance to the Government by war. But if war be waged upon a scale sufficiently large seriously to threaten the existence of the Government it ceases to be levying war upon the Government. Such reasoning answers itself. Surely Mr. Smith does not think that the leaders of the Whisky Insurrection might have been justly punished for treason, while the Government has no rightful hold of Davis.

In quoting Hallam upon the execution of Charles the First, Mr. Smith seems to forget that the illustration is not pertinent. There was no law precisely defining Charles’s conduct as a capital crime, while Davis’s offense is carefully and explicitly described in the fundamental law and the penalty unequivocally determined by statute. Macaulay, in the very passage from which Mr. Smith quotes, destroys all comparison of the cases by saying that neither by international nor municipal law was Charles a traitor. On the contrary, he says, "The opponents of Charles, it must be admitted, were technically guilty of treason. He might have sent them to the scaffold without violating any established principle of jurisprudence." Yet how could he have done this if the scope of the war had removed the liability of belligerents as traitors? Macaulay’s argument against the execution of Charles whenever he alludes to it, and especially in the essay from which Mr. Smith quotes, is purely one of policy. "One thing, and one alone," says the historian, "could make Charles dangerous—a violent death." He exhausts his brilliant rhetoric to prove that the King’s execution was a blunder, because it was absolutely unnecessary, and could only be procured by taking several previous steps, every one of which would have required the strongest necessity to vindicate. He pleads against the death of the King the only practicable argument that could be urged for the respite of Davis, that his violent death being useless made him a martyr. "And posterity has estimated his character from his death rather than from his life."

No special plea, no appeal to history, no argument drawn from the fact of war, can obscure the plain fact that Davis’s life is forfeit to the law. This is conceded even by the London Times, one of the basest and most unscrupulous defamers of this country, and the most unblushing advocate of Davis before his failure. It pleads for him upon the ground of policy, and that is, unquestionably, the only ground upon which an appeal for mercy is tenable.

The fate of Davis individually, as of any single criminal, is of very little importance; but it is very important that this country should decide how it will regard treason and punish traitors. Those who oppose the execution of the present law plead that Davis "simply committed treason." True; and Booth simply committed murder. The law awards the same penalty to both offenses. Were there mitigating circumstances in either case? If so, let us know what they were. Davis would probably urge that he believed State Sovereignty justified his action. Booth would doubtless have declared that he believed the killing of tyrants was no murder. For ourselves, with no other desire than the peace and honor of the country, we repeat, that if this treason does not demand the penalty of the law no treason can; and therefore if Davis should be spared the law should be changed. Is so grave a law as that against treason intended to reach contemptible enemies only? Is a traitor to be exempted the moment he becomes truly formidable? If not, let the law be changed to conform to the public opinion, that death should not be inflicted for political offenses.

Harper's Weekly, June 24, 1865, pages 386-387 (Editorial)

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