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It is not necessary for us to dilate at this time on such foul and disgraceful crimes; none of our readers need be convinced that they are subversive of all law and order, and that their perpetrators should be dealt with accordingly. At the same time, we do not think that they ought to be tried by court-martial. In our opinion, it would be much more judicious, for various reasons, to hand them over to the civil tribunals. There is no good reason to believe that they would escape punishment if this were done; even the suspicion that they would does not merely imply a want of confidence in our judicial system; it also implies that the class of our citizens in the habit of acting as jurymen are, if not favorable to assassination, at least likely to find excuses for it in particular circumstances. The jury, it is true, might not agree as to the guilt of those of whose guilt there can really be no question ; but another and another jury could be empanelled. We think this would not be necessary; we cannot believe that any man, wishing to maintain a character for honesty or truthfulness, no matter what his political sympathies might be, would refuse to agree to a verdict against the would-be assassin of Mr. Seward.
Did the war still continue, and that there was any prospect of success on the part of the rebels, it would then be different, and accordingly a different course would be allowable from that we should consider right now. But, assuming that it were possible for the assassins to escape, it would be better they should do so than that they should be executed in a manner which, when the moment of calm reflection came, would not be sanctioned by intelligent public opinion. If the object of criminal law were merely to make the malefactors feel that they had perpetrated crime, then the only question would be as to their guilt; it would be of secondary consequence what formalities were used in bringing them to punishment. But this is not the case. The primary object in the punishment of criminals is the salutary moral effect which it is expected to produce; but this effect is lost if the culprit has not had the advantage of being tried according to the laws of the country in which he has committed the crime. This view of the case will, we think, be the more readily assented to as correct, if it be borne in mind that even in time of war, when martial law is in full force, the proceedings of any particular court
martial may be declared null and void by the civil tribunals, in virtue of the same power by which martial law exists for the time being.
For other reasons as well as these we are glad to see that Jefferson Davis is to be tried by the civil courts. Could it be satisfactorily proved that he encouraged the assassins, or that he was instrumental in getting up the conspiracy against the lives of the principal members of the government, there would be no good reason why he should not be executed on being duly convicted, as well as the meanest of his accomplices; but thus far it does not seem that he is legally guilty in this respect. To show that he is even morally guilty in connection with the assassination of Mr. Lincoln, would require stronger evidence than has yet been obtained, so far as we are aware. Indeed, the mere fact that he has been given over to the civil tribunals for trial, while those already charged with belonging to the assassination conspiracy are on trial before a military tribunal, may, we think, be regarded as conclusive on this point. At all events, we think this much more likely than that the arch conspirator should be favored by the government.
Then if Jefferson Davis cannot be convicted of being directly instrumental in the assassination of Mr. Lincoln, we hold that he should not be punished capitally as the chief of the rebellion. That he deserves death for the untold miseries he has inflicted on the country, especially on his own followers, is beyond question ; but it would not be in accordance with the law of nations, as interpreted by the ablest jurists, to execute the head of a rebellion which maintained itself so long, which fought successfully so many great battles, and to which belligerent rights were accorded by the greatest and most enlightened nations in Christendom. It is precisely to obviate extreme measures of this kind that belligerent rights are accorded by the law of nations. What the motive of any particular government may be in granting those rights is another question; the law assumes the motive to be good from the fact, however selfish it may be in reality.
Nothing could be gained by executing Jefferson Davis, if he were convicted to-morrow; such a course would, on the contrary, do much harm, as the experience of the world proves. His execution would make him a martyr; and whatever makes one a martyr serves the cause for which he has suffered. Even Cicero lived long enough to see that the cause of public justice and morality would have been better served had a milder course been pursued towards Cataline and his fellow conspirators; for those who had either
been indifferent to his cause when alive, or who regarded him as a bad man, strewed his grave with flowers.* Cæsar was looked upon as very profane and by no means loyal when he delivered his celebrated speech in the Roman senate in favor of sparing the lives of the conspirators, on the ground that exile or some kindred punishment would really be greater than that of death ; but the great captain raised his eloquent voice in that august assembly, not as a sympathizer with plunder and rapine, but as a philosopher, who could see the effect of acts apparently trifling in themselves on generations yet unborn.
For similar reasons we hold that Jefferson Davis should not be treated with any needless harshness, ; there is no necessity for chaining an old man like him, surrounded by guards, in the casement of a fortress ; we hope it is not true that he has been so chained, for, if it was needless, as we say, and yet done, it can be regarded in no other light than as wanton cruelty ; even to insult a fallen foe is repugnant to every generous mind, since there are none so great and powerful but that they too may be captives depending on the caprice of their jailers.
That Jefferson Davis has acted the part of a traitor-nay, a base unscrupulous one-far be it from us to deny; but we are bound to admit, at the same time, not only that the civilized world would have regarded him as a great man had he succeeded, but there are many whose opinions are not to be despised who regard him in that light even now. The female apparel in which he has been captured is a legitimate subject of satire. All who choose to amuse themselves with it have a perfect right to do so; but there is no shame attached to it; any of those many acts of his which have led to bloodshed and robbery are far more shameful. Any one trying to make his escape in time of war has a right to use any disguise which he thinks will be likely to save him ; his doing so is no more derogatory to him than would be any stratagem which a general may use to avoid or bring on an engagement. Peter the Great, of Russia, once disguised himself in the habit of a Swiss girl, to avoid falling into the hands of his enemies, the Swedes. No one thinks the
* Napoleon III., commenting on this in his Life of Cæsar, makes the following very just observations : "iceron croyait avoir detruit tout un parti ; il se trompait : il n'avait fait que déjouer une conspiration et dégagner une grande cause des impruedents qui la compromettaient; la mort illégale des conjurés rehablita leur mémoire, &c."--Histoire de Jules César, liv. ii, chap. iii., p. 325.
less of the celebrated Lavalette because he availed himself of his wife's dress to escape from prison ; whereas the circumstance has rendered Madame Lavalette famous for all time.* The wife of Davis had just as good a right to save her husband, if she could, as the wife of Lavalette. Traitor though the former was, let us honestly adorit that it would have been a far greater disgrace for his wife to have deserted him in his adversity than to have sought, as she did, to save his life. We must not forget that she is an American lady; and are we to encourage our countrywomen to be less faithful to their husbands than Frenchwomen ? Then let Jefferson Davis be dealt with for his real crimes, and not for what is no crime; and let Mrs. Davis not be made the subject of coarse ribaldry, because, if he betrayed his country, she, as a true woman, would not betray him in the hour of need and peril.
When there was any danger of the Republic, none were more in favor of its salvation than we. Every number of our journal issued since the war commenced affords evidence of this fact. Before any overt act had been committed by the rebels, we endeavored to show, with as little offence as possible, what the consequences would be if they really attempted to dismember the nation. In proof of this we refer to our article entitled “The Lessons of Revolutions,” in the number of this journal for March, 1861, the object of which was to show what have been the special fruits of revolutions. We will extract a passage or two from this, and also give some extracts from other articles of ours, to show that we have some claim to be heard in now counselling moderation and clemency, even to the rebel chiefs. Refer
Let Edinburgh critics o'erwhelm with their praises
Their Madame de Staël, and their famed La Pinasse :
And the fame of a wit is as brittle as glass :
Of thy torch, Wedded Love! and it never has yet
Than it shed on the name of the fair Lavalette.
Then fill high the wine cup, e'en virtue shall bless it,
And hallow the goblet which foams to her name ;
And Hymen shall honor the pledge of her fame:
Has risk'd for her Husband, we'll pay the just debt;
The constant, the noble, the fair Lavalette.--Byron.
ring to the fruits of revolutions, we made the following remarks:
“Sometimes, indeed, the latter have been good; they have been so in our case ; but it was a peculiar one. The greatest of England's statesmen, and a large proportion of the English people, admitted the justice of our complaint against taxation without representation. Nay, it was known throughout the world that our ancestors were oppressed by a government three thousand miles distant. But had there been no oppres. sion, they had & right to protest against being mere colonists as soon as they found that they were capable of governing themselves.
" But we owe our present troubles to none of those causes. The Southerner has been as much an American citizen as the Northerner. This was of course his right; it was no compliment--we merely state the fact for argument's sake. The citizen of Boston, Philadelphia, or New York had no privileges from the general government more than the citizen of Charleston, New Orleans, or Richmond. If one state had different laws from another, it was only by the will of its own people, who had a right to have the same repealed whenever they found them burdensome, or in any manner inconsistent with the greatest good of the greatest number.' In short, if any one section of the country enjoyed more privileges from the general government than another it was the South. Oppression, then, is out of the question ; it has not been felt in any form South more than North of Mason and Dixon's line."
In showing that most attempts at revolution end disastrously we adduced the case of the Swiss cantons, which seceded from the rest of the republic in 1847, but were forced to return by the stronger arm of the federal government. After briefly stating the manner in which the secession of those cantons took place, we-added the following observations: “This led to the immediate formation of the somewhat famous Sonderbund—a confederacy consisting of no less than seven cantons, the avowed object of which was to form a republic of their own. The Diet (federal govern- ; ment) was not frightened in the least. It first reasoned calmly with the seceders, telling them that their confederacy was a direct violation of the federal compact. The Sonderbund replied only by repeating its former threats. The Diet passed a resolution declaring the confederacy illegal. The Sonderbund passed a counter resolution, and in defiance of the constitution declared itself an independent government. The Diet had now either to acknowledge the new state of things, or vindicate its authority by-the sword; but it did not hesitate for a day after it became evident that there was no other alternative. A formidable army was raised in a few weeks, which invaded the seceding cantons. The Sonderbund had made great preparations, and threatened to anuihilate any federal army that would attempt to question