Jefferson Davis Left An Opening
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C.S.A. News , January 23, 2006 - - -"The contest is not over, the strife is not ended. It has only entered upon a new and enlarged arena." --- Jefferson Davis, address to the Mississippi legislature - 16 years after the wars end." Does this statement sound like a man who believes the Confederate States Constitution has been rescinded and the Confederate States of America terminated as a nation?
There was a Confederate Convention in San Antonio Texas in the late 1990's where upon I had the privilege of meeting a couple of lawyers who explained that after 'The War' Yankees were very anxious in dealing with Jefferson Davis. On one had if they persecuted him he'd become a martyr, while on the other if they charged him with treason, the entire case would end up in the federal courts. Once the issue ended up in the courts, they could no longer deny the existence of the Confederate States of America as a separate and distinct nation being held under occupation. After which the charge of treason would become groundless and the Confederacy would be vindicated.
There had to be another way in which to deal the final blow to the Confederacy, therefore the idea of putting Jefferson Davis on trial was dropped. Jefferson Davis had already indicated that out of fairness and justice, he would appeal either an innocent or a guilty verdict handed down by a trial court. The case would have then worked its way up to the Supreme Court, which would have had no other choice but to rule in favor of Jefferson Davis. The principle of secession was held to be constitutional by a vast majority of Northern as well as Southern States prior to The War. While Presidents, Senators and Representatives came and went, the Supreme Court remained largely unchanged.
The right of secession had also been taught at the U.S. Military Academy at West Point prior to The War. The Supreme Court would have been pretty much compelled to hold fast to precedence regarding the right of the States to secede. The popular thinking at that time found absolutely no difference between the Colonies seceding from Great Britain and forming the United States, verses the Southern States seceding from the United States and forming the Confederate States. Secondly the Supreme Court at that time had no set precedence for ignoring the Tenth Amendment, as is commonly done today. The Tenth Amendment basically restricted the exercise of federal authority to those powers actually enumerated in the constitution, reserving all others to the States or to the people.
One should remember the Fourteenth Amendment did not immediately exist at the close of the war, when the Davis issue came to the fore. While a cry went out by the victors to put Jefferson Davis on trial for treason, those in authority quickly realized this would be giving him the ideal platform and forum in which to argue for the Confederacy. In the halls of power a Davis victory would be in effect a victory for the Confederate States of America. The issue of the constitutionality of secession and the affirmation of the Tenth Amendments restriction against federal usurpation of power, has never been addressed by the federal courts unto this day. The status quo is simply assumed to be correct!
One must then ask the logical question; Why not? Since every other controversial issue has been addressed! In dealing with Jefferson Davis, it came down to certain legal hurdles the Yankees felt they had to overcome. It was one thing to refuse to negotiate with the Confederacy, as a nation and to deny it ever existed under war conditions. But quite another to make those same claims in a court of law! Particularly since a Jefferson Davis trial would have been held in Virginia, with Virginians serving as jurors. We find that throughout the years since the surrender of our Confederate Armies, the validity of secession and of the Confederacy has never been addressed in a legal constitutional forum of any kind, let alone the courts. Inasmuch as force was used to overthrow the Confederate States Constitution as well as the Government provided there under.
The President of the Confederacy, like the U.S. President is alone empowered to negotiate with foreign powers. The word treaties in this case simply implies agreements with foreign nations or groups of nations and no such treaty or agreement was ever signed by President Davis. The United States did in fact gain the surrender of our Confederate Armies. The non-existence of the Confederacy however as claimed by our occupational forces, stands outside of any constitutional and legal empowerment. However by refusing to negotiate with President Jefferson Davis, those people unintentionally left the Confederacy in a kind of limbo status, as being that of a viable nation held under occupation.
There remained only a single reasonable option remaining which our occupation forces could have used, in order to plug the loop hole left by their having refused to negotiate with Jefferson Davis. If they could have convinced Davis to swear to the same Oath of Allegiance to the U.S. Government, which had been forced upon our soldiers. This would have had the effect of Jefferson Davis himself placing the Confederate States in the category of a nation which never existed. We today far to often fail to comprehend certain truths concerning nationhood; That no Armed Force can in and of itself terminate the existence of a nation.
Generals can invade, conquer, occupy and subjugate or even surrender their own armies, but only the free, independent and sovereign citizenry has the right to terminate the existence of their own nation. The Southern People acting through their duly elected representatives in their several State Governments, freely seceded and ratified the Confederate States Constitution. Afterward forming the Confederate States of America according to that same constitution. In like manner only a free, independent and sovereign citizenry acting in accordance with the provisions of the constitution, can rescind the Confederate States Constitution.
This authority was never been granted to our occupation forces, and force itself having been used, causes every action they have taken in this regard to stand invalid. Additionally our people forget one issue concerning both the C.S. and the U.S. Constitutions. Presidential terms expire upon a setting President being relieved by a successor, or in the event of his death. A Confederate Presidential successor would have been provided by a Confederate States National Election after six years. Since no elections were possible because of the occupation, Jefferson Davis remained in office until his death. The Offices of the Confederate States Government thereby remain vacant but valid!
In our modern world, only free Confederate States National Elections are necessary in order to reactivate the Confederate States Constitution. One lawyers I had spoken to at that time replied, "President Jefferson Davis by his deeds, left an opening large enough for an eighteen wheeler to drive through." Nothing said or done, not by our adversaries or even the League of the South, can alter these truths! Of all the works written by our beloved President Jefferson Davis, among which is The Rise and Fall of the Confederate Government, none can be found which claims the Confederate States Constitution has ever been rescinded, or the Confederate States of America terminated as a nation.
The works of Jefferson Davis stands firm upon our unalienable right to have seceded, drafted and ratified the Confederate States Constitution, and to have formed the Confederate States of America. Jefferson Davis was an honorable, intelligent and experienced man of his time! He would never have permitted himself to suffer such life long indignities, if he truly believed the Confederacy had been terminated as a nation. Particularly when all he had to do was to have taken the U.S. Oath of Allegiance, then begin to rebuild his shattered life. The two lawyers mention in the first paragraph were friends of the late Mr. David Martin, he being one of the two founding grandfathers of the Confederate Society of America.
Mr. Martin and I spoke frequently over the telephone prior to his death, particularly while he was still relatively healthy, and among the topics was an intra-office friendly debate held between these same two lawyers. The debate centered around a fictional Second World War victory by Japan over the United States! The Japanese had invaded and their armies gradually moved across the Continental States from west to east, conquering everything in their way. Washington eventually fell to the Japanese, the Congress and the Supreme Court scattered! The then President Harry S. Truman was finally captured in the Midwest and imprisoned, but released after several years.
Generations had passed and no U.S. Elections were held due to the occupation, while at the same time the public schools gradually became instruments of the Japanese occupation forces. Even to the degree of teaching that the United States was never a valid nation, and their forefathers were traitors. Then came the legal constitutional question; Would the U.S. continue to exist as a nation, after a prolonged period of time under occupation, and would the U.S. Constitution remain in effect, or would it have been automatically terminated? The answer given was yes, the U.S. Constitution would remain in effect, since it had never been freely and constitutionally rescinded. The United States would according to this example remain a valid nation, howbeit under occupation!
The lawyer who gave the example then ask the final question; How is this example different then the Confederate States of America which was invaded, conquered, occupied and subjugated? Either the answer is yes in both cases or no in respect to both of these two nations, there cannot be different answers for each of these cases. In finality if the victor had negotiated the termination of the war with President Jefferson Davis, and Davis were to have agreed to their terms, including his taking of an Oath of Allegiance to the U.S. Government. He would have been signing away all legitimate claims by future generations, to the Confederate States of America being a separate and distinct nation, and the Confederate States Constitution remaining in force.
In such a case we today would have no legitimate claim to nationhood or of the Confederate States Constitution. It is in the foolishness of Yankee arrogance in not negotiating with President Jefferson Davis as the legitimate leader of a sovereign nation, the Yankees had made a critical mistake. Because he was steadfast in his devotion to his nation, even under occupation, and to the office for which he had foresworn. Because Jefferson Davis refused to take the Oath of Allegiance to the very hostile foreign power which had invaded, conquered, occupied and subjugated the Confederate States of America. We today owe him the continuation of our struggle and of our just and honorable cause!
While it could be argued that even President Jefferson Davis's signature on a surrender document standing alone, and his having taken the Oath of Allegiance to the United States Government, would not have in and of itself terminated the Confederate States of America or rescinded its constitution. Still the weight of his having done so would have left us with no place to stand, nor an argument for our cause. Based upon the sum total of his work, one can only conclude he was well aware of these facts! Jefferson Davis, based upon the course of action he had taken after the war and through the remainder of his life indicates, he had to have been well aware of the effects he would have on future history.
"Victory is for those with the persistence and fortitude to resist the temptation to withdraw or whose resolve has been tempered, when conditions worsen and the cost rises. It is not for the weak hearted, nor those who are softened by the ease and comfort of a gilded cage, provided by the enemy at the cost of liberty. It is for those who continue to fight the good fight, even after others who have gone before, having faced overwhelming numbers and firepower found themselves unable to complete the mission." --- Jay Buckner
God save the Confederacy
Thomas E. Guinn
Editor in Chief
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