These days, many folks argue flatly that Lee, Jackson and other Confederates were traitors. These folks never explain what they mean, but they seem to mean that Lee and Jackson and other Confederate officers took oaths to the U.S. Constitution. In taking up arms against the U.S., they violated those oaths. But, of course, that flies in the face of reality. Officers resign their commission often. Taking an oath on one day does not commit the officer to indefinite servitude forever. This author took that same oath. Taking that oath does not mean I cannot at some date in the future object to the current regime and fight against the U.S. military. If Donald Trump wins a second term and starts to physically attack Mexican immigrants, I can certainly resign my commission and fight for Mexico.
Now, there is also a street definition of treason. When Nick Saban agreed to coach Alabama in 2007, the LSU fans accused him of treason. For a couple of years, LSU hated Coach Saban. Those fans employed a street definition of treason. But, when not writing history blogs, I practice law. I want to know what is the legal definition of treason.
Caselaw on Treason
There is no clear caselaw or precedent for a person who fought against the U.S. There just have not been many cases in which a person renounced his U.S. citizenship and then served in an opposing military. But, in one case, Kawakita v. U.S., 343 US 717, 734 (1952), one young man went to Japan for college before World War II. He reached the age of 18 in 1942. Mr. Kawakita held citizenship in both Japan and the U.S. In 1943, Japan said he was an alien. So, he changed his address with the Japanese police from America to Japan. He changed his designation in the Koseki, a family census register, from American to Japanese. He did not take any steps to renounce his U.S. citizenship.
In 1945, Kwakita then applied for a U.S. passport at the Consul’s office. He said he was re-claiming his U.S. citizenship. He was, however, charged with treason. During World War II, he held a civilian job interpreting for Japanese industries who employed American workers. He was accused of helping the Japanese authorities mistreat the American POW’s working in those manufacturing plants. Kawakita argued that he had renounced his U.S. citizenship when he changed his registration with the Koseki. Since he was not a U.S. citizen, he could not be guilty of treason.
But, the Supreme Court disagreed. In an opinion written by the great Justice William O. Douglas, he was troubled by the dual citizenship. With citizenship in both countries, that means Kawakita held responsibilities to both countries. The court found he did nothing that would remove or reduce his U.S. citizenship. Therefore, he could and did take actions that violated his responsibilities as a U.S. citizen. The dissent simply argued that he had indeed “lost” his U.S. citizenship. But, even the dissent does not explain how the young Kawakita lost it.
We learn from this opinion that holding U.S. citizenship is essential for a charge of treason. So, no, because Lee, Jackson and others did renounce their U.S. citizenship – in a very public way, they could not be accused of treason.
The Jefferson Davis Trial That Never Was
Lee and some other officers on his staff had papers promising parole, signed by Gen. Grant’s Provost Marshall. But, what about Jeff Davis? Was he ever charged with treason? Jeff Davis was held in a Yankee prison for two years. The Federals fully intended to prosecute him for treason. He was indicted for treason in 1868. Davis was said to be eager for a trial. He planned to argue the constitutionality of secession at trial. The government put off the trial several times, trying to prepare for his argument. But, Davis’ lawyers filed a motion to dismiss, saying the 14th Amendment prohibited Davis from seeking any public office. That amounted to punishment. So, any trial would amount to double jeopardy. Eventually, the government prosecutors dismissed the case, because it was too political and too complicated.
For more about the Jefferson Davis trial that never occurred, see National park Service web page here.
Secession as a Viable Option
As late as 1861, the possibility of secession was accepted as a viable alternative.
In William Rawle’s A View of the Constitution, (1829 2d ed.), the author prescribed how to effect a secession in a lawful, binding way. Mr. Rawle, a well-trained lawyer, lays out the requirements for a stable, effective secession. His book remained the leading book on the Constitution through the 1850’s. To this day, Rawle is often cited when the courts look at the history of constitutional issues, such as Second Amendment questions and Presidential recess appointments.
In 1869, the U.S. Supreme Court addressed the constitutionality of secession head on. In the case of Texas v. White, the court held that secession was absolutely “null and void.” And, then again in 1877, the Supreme Court addressed secession in a more thorough way, finding secession to be illegal. Williams v. Bruffy, 96 U.S. 176, 189-190 (1878). But, prior to these decisions, secession was not considered to be inherently unlawful.