Cyclopædia of Political Science, Political Economy, and the Political History of the United States
—Had the constitution given to congress the "sole" power to define the punishment of treason, the states would have been remitted, for protection against such domestic disturbances as Dorr's rebellion (see that title), to a simple law against seditious assemblages; and the protection would have been efficient. As it is, most of the states have inserted in their constitutions a provision that "treason against the state of—shall consist only in levying war, etc.," following the constitution of the United States. These provisions have always been practically in nubibus: there has hardly been a case of indictment for treason against a state, excepting the action of Rhode Island in the Dorr case, and that came to nothing. But they fostered the idea of allegiance to a state, and thus carried into secession the multitude who disliked secession, but dreaded to commit treason against the state.
—At the end of the rebellion there were no prosecutions for treason. It has been roundly asserted that the reason for this was the consciousness of the government of the United States that it had been illegally suppressing a misnamed rebellion, that treason could only hold against a state, and that Jefferson Davis and his associates had committed no crime and engaged in no treason, in any sense known to the constitution or its framers. Those who so argue forget that Mr. Lavis, at least, was no prisoner of war; that his surrender was unconditional and in a territory under military occupation; and that, if there had been any such impotent spite against him as this theory assigns to the government, a drum head court martial and a file of men would quickly have made it patent, treason or no treason. The fact seems to be that his escape was due entirely to lack of spite. The collapse of the rebellion had been too complete to allow of spite. The nation stood aghast as it realized the thoroughness of its work; and its controlling impulse was to efface as rapidly as possible all evidences of the conflict. Treason trials would have been a festering sore in the body politic, and they were avoided.
—There can be no doubt that this policy was just, as well as wise. For seventy years before 1860, men who did not realize the full force of what they said had been boasting of the "voluntary" nature of the union, in contrast with the effete despotisms of Europe. (See
—The act of April 30, 1790, made death the penalty for treason, as defined in the constitution, on conviction by "confession in open court, or on the testimony of two witnesses to the same overt act." It also made fine and imprisonment the punishment of misprision of treason, the concealment of it. For seventy years this act was sufficient. There were few trials under it, the principal one being that of Burr (see his name); and these were practically failures. In 1861 an act was passed making conspiracy to oppose the laws or seize the property of the United States a high crime, but this was punishable only by fine and imprisonment. The act of July 17, 1862, provided, that, if any person should thereafter commit the crime of treason against the United States, his slaves, if any, should be declared free, and he himself should suffer death, or fine and imprisonment, at the discretion of the court; that any one convicted should forever be incapable of holding office under the United States; and that it should be the duty of the president to seize and apply to the use of the army the property of six classes of leaders of the rebellion, who seem to have been considered prima facie guilty of treason. There were, finally, no southern prosecutions under it. Davis and others were indicted, but never brought to trial. The few prosecutions were in northern states.
—See Story's Commentaries, §§ 1290, 1790; ib., § 1795 (for law cases); Whiting's War Powers (10th ed.), 95; the state sovereignty view of treason is in Bledsoe's Is Jefferson Davis a Traitor? and "Centz"'s Republic of Republics, 413 foll., (see also index under Treason); Indianapolis Treason Trials; for the indictment against Davis see Schuckers' Life of Chase, 534; the act of April 30, 1790, is in 1 Stat. at Large, 112; the act of July 17, 1862, is in 12 Stat. at Large, 589.
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