The 1868 Richard Henry Dana Brief

This letter was found by accident in the state archives in 2000 and was not listed as being within the historical papers of the person where it was found.

I have a photo copy of the handwritten, 5 page letter. I call the letter, the RICHARD HENRY DANA BRIEF of 1868 It is reproduced below in the same manner it was written, minus the indentions which I can not reproduce here.



Boston, August 24, 1868

The Honorable

William M. Evarts,

Attorney General,

Sir,

While preparing with yourself, before you assumed your present post, to perform the honorable duty the President had assigned to us, of conducting the trial of Jefferson Davis, you know how much my mind was moved, from the first, by doubts of the expediency of trying him at all. The reasons which prevented my presenting those doubts no longer exist, and they have so ripened into conviction that I feel it my duty to lay them before you in form as you now hold a post of official responsibility for the proceeding.

After the most serious reflection, I cannot see any good reason why the Government should make a question of whether the late civil war was treason and whether Jefferson Davis took any part in it, and submit those questions to the decision of a petit jury of the vicinage of Richmond at nisi prius .

As the Constitution in terms settles the fact that our republic is a state against which treason may be committed, the only constitutional question attending the late war was whether a levying of war against the United States which would otherwise be treason is relieved of that character by the fact that it took the form of secession from the Union by state authority. In other words, the legal issue was, whether secession by a state is a constitutional right, making an act legal and obligatory upon the nation which would otherwise have been treason.

This issue I suppose to have been settled by the action of every department of the Government, by the action of the people itself, and by those events which are definitive in the affairs of men.

The Supreme Court in the Prize Courts (2 Black’s Ref) held, by happily a unanimous opinion that acts of the States, whether secession ordinances, or in whatever form cast, could not be brought into the cases, as justifications for the war, and had no legal effect on the character of the war, or on the political status of territory or persons or property, and that the line of enemy’s territory was a question fact depending upon the line of bayonets of an actual war. The rule in the Prize Courts has been steadily followed in the Supreme Court since, and in the Circuit Courts, without an intimation of a doubt. That the lawmaking and executive departments have treated this secession and war as treason is matter of history, as well as is the action of the people in the highest sanction of war.

It cannot be doubted that the Circuit Court at the trial will instruct the jury in conformity with these decisions, that the late attempt to establish and sustain by war by independent empire within the United States was treason. The only question of fact submitted to the jury will be whether Jefferson Davis took part in the war. As it is one of the great facts of history that he was its head, civil and military, why should we desire to make a question of it and refer its decision to a jury, with powers to find in the negative or affirmative or to disagree? It is not an appropriate question for the decision of a jury, certainly it is not a fact which a Government should, without great cause, give a jury a chance to ignore.

We know that these indictments are to be tried in what was for five years enemy’s territory, which is not yet restored to the exercise of all its political functions, and where the fires are not extinct. We know that it only requires one discontent juror to defeat the Government and give Jefferson Davis and his favorers a triumph. Now, is not such a result one which we must include in our calculation of possibilities? Whatever modes may be legally adopted to draw a jury, or to purge it, and whatever the influence of the court or of counsel, we know that a favorer of treason may get upon the jury. But that is not necessary. A fear of personal violence or social ostracism may be enough to induce one man to withhold his ascent from the verdict, especially as he need not come forward personally, nor give a reason, even in the jury room.

The possible result would be most humiliating to the Government and people of this country, and none the less so from the fact that it would be absurd. The Government would be stopped in the judicial course because it could neither assume nor judicially determine that Jefferson Davis took part in the late civil war. Such a result would also bring into doubt the adequacy of our penal system to deal with such cases as this.

If it were important to secure a verdict as a means of punishing the defendant, the question would present itself differently. But it would be beneath the dignity of the Government and of the issue, to inflict upon him a minor punishment, and, as to a sentence of death, I am sure that, after this lapse of time, and after all that has occurred in the interval, the people of the United States would not desire to see it enforced.

In fine, after the fullest consideration, it seems to me that, by pursuing the trial, the Government can get only a reaffirmation by a Circuit Court at nici prius of a rule of public law settled for this country in every way in which such a matter can be settled, only giving to a jury drawn form the region of the rebellion a chance to disregard the law when announced. It gives that jury a like opportunity to ignore the fact that Jefferson Davis took any part in the late civil war. And one man upon the jury can secure the results. The risk of such absurd and discreditable issues of a great state trial, are assumed for the sake of a verdict which, if obtained, will settle nothing in law or natural practice not now settled, and nothing in fact not now history, while no judgment rendered thereon do we think will be ever executed.

Besides these reasons, and perhaps because of them, I think the public interest in the trial has ceased among the most earnest and loyal citizens.

If your views and those of the President should be in favor of proceeding with the trial, I am confident that I can do my duty as counsel to the utmost of my ability and with all zeal. For my doubts are not what the verdict ought to be. On the contrary, I should feel all the more strongly, if the trial is begun, the importance of victory to the Government, and the necessity of putting forth all power and using all lawful means to secure it. Still, I feel it my duty to say that if the President should judge otherwise, my position in the case is at his disposal.

Very respectfully

Your ob’t. ser’t.

(signed) Richard H. Dana, Jr.