Secession on Trial

This book by Professor Cynthia Nicoletti is an outstanding addition to the scholarship surrounding Jefferson Davis’s indictment and the machinations around his treason trial. Neoconfederates and Davis partisans from the late 19th century have sown so much disinformation about these events Professor Nicoletti’s careful analysis of the evidence does much to dispel the myth that Davis and his lawyers wanted a trial to prove the legality of secession.

There are many events along the winding path that prevented Davis’s trial from taking place. Prime among them is the fact his legal team did all it could to prevent a trial. Another prime factor is the care taken by the United States legal team to ensure any prosecution would be so totally above-board no one could ever accuse the United States of railroading Davis. In a nutshell, “The government and the other actors in Davis’s case operated against a backdrop of intense public scrutiny. Because of the high profile of the case, the United States government proceeded cautiously, wanting to ensure that the verdict would be seen as a legitimate legal pronouncement on treason and the right of secession. Over the angry objections of many in Congress, the Johnson administration–on the advice of Attorney General James Speed–refused to relax any of the procedural rules governing the conduct of federal criminal trials. Speed worried about the disruptive effect of the war and would not tinker with the rule of law. In his opinion, altering the legal system during this vulnerable period merely to ensure the proper outcome in the Davis case would unmoor the United States from its foundations. For this reason, Speed rejected the possibility of conducting Davis’s trial before a military commission and instead determined to hold trial before a federal jury in the pace where Davis had committed his crimes: the former Confederate capital of Richmond, Virginia. Once it was decided that Davis’s trial was to take place in Richmond, it became increasingly clear that the government would face considerable trouble convicting Davis on a treason charge. Trusting Davis’s fate to a Virginia jury was an invitation to jury nullification. Federal jurors were required to swear unbroken loyalty to the United States, and Davis’s federal jury pool was the first in American history to include African Americans. Still, there could be no guarantee that Confederate sympathizers would not find their way onto the jury and refuse to convict their former president. Instead of supplying a legal endorsement of the Union’s victory, Davis’s case could provide a backdoor vindication of the right of secession and thus undercut the results of the war. As the possibility of ensuring the proper outcome in Davis’s case seemed more remote, the government’s attorneys groped for a way to avoid the issue of secession in Davis’s case without signaling to the country that they feared putting him on trial. They opted for delay, hoping that a solution would somehow present itself. Davis’s attorneys were equally hesitant about forcing the case to come to trial, knowing that not only the principle of secession but also their client’s life was at stake. At the same time, they sought to turn the government’s concerns about secession’s possible vindication to their own advantage. To induce the government to drop the prosecution, they overstated their own confidence in winning an acquittal. Chief Justice Salmon P. Chase, who presided over the federal circuit court in Richmond, along with District Judge John C. Underwood, seemed similarly reluctant to entrust Davis’s fate to a jury. With all parties equally determined not to proceed to trial, the case dragged on without resolution for almost four years, until Davis’s attorneys moved to quash the indictment in December 1868 on the grounds that the newly ratified Fourteenth Amendment barred the prosecution of Confederate officials for treason. When the two judges split on the merits of the defense’s argument, the question was certified to the Supreme Court for resolution. Later that month, however, President Andrew Johnson issued a universal amnesty proclamation, relieving all former Confederates from prosecution. Accordingly, the momentous issues of Davis’s treason and the legitimacy of the Confederate war effort were left unsettled precisely because their resolution might prove so explosive. Just a few months later, the Supreme Court delivered a perfunctory pronouncement against the constitutionality of secession in a far less volatile context, quietly declaring the nation to be ‘an indestructible Union composed of indestructible states’ in Texas v. White, a case involving the repayment of government bonds.” [pp. 6-8]

The book is deeply researched. Professor Nicoletti even looked into many of the major secession advocates. “Advocacy of secession was not a morally neutral position during the sectional crisis. Secessionist theory was inextricably bound up with white supremacy and racial hierarchy. Secessionists espoused theories of state sovereignty to insulate the institution of slavery and state-sponsored racial inequality from federal control. The secessionists chronicled in this book were, to a man, proponents of racial slavery and black inferiority. Secessionist theory and state sovereignty arguments were never advanced as merely academic positions: they were actively deployed to defend slavery.” [p. 13]

The lead attorney on Davis’s “dream team” of lawyers, Charles O’Conor, was perhaps the top lawyer in America at the time. “O’Conor did not intend to use Davis’s case to test the legality of secession. He considered the risk too great and the likely payoff too small. As he well understood, there was no guarantee that the federal court in Virginia would acquit Davis and thereby vindicate secession. But there was also no assurance that it would convict him. So O’Conor embarked on a high-stakes bluff. For four years, O’Conor kept up a bold facade, proclaiming his eagerness to prove the legality of secession, in full possession of the understanding that the prosecutors feared an undesirable outcome even more than he did. He recognized that from their perspective, a serious defense of secession was deeply troubling: it had the potential to shatter the fragile postwar settlement achieved at Appomattox. It could undermine the verdict of the battlefield. O’Conor seized the advantage and openly challenged the government to test secession’s constitutionality by trying Davis for treason. Sustaining this posture allowed O’Conor to pressure the prosecution, which caused the government’s lawyers to hesitate for so long that it became politically infeasible to try Davis. O’Conor’s plan was based on secrecy: he carefully concealed his true hopes for the eventual dismissal of the case. This success has misled historians, who have concluded–wrongly–that O’Conor was determined to vindicate the right of secession in Davis’s case, and have accordingly missed the extent to which O’Conor engineered the ultimate disposition o the case. O’Conor’s behind-the-scenes actions, set forth in his private, coded correspondence with Varina and Jefferson Davis, demonstrates how shrewd maneuvering to counter an opponent’s actions was an important but vastly underappreciated aspect of nineteenth-century legal practice.” [pp. 63-64]

And what about Davis? Davis did say at one point he wanted to vindicate secession at trial, but he also realized his life was at stake. “Despite his flirtation with martyrdom for the Lost Cause, Davis never countermanded his attorney’s instructions, nor even expressed dissatisfaction with O’Conor’s strategy. Davis reported to former Confederate diplomat James M. Mason, who funneled money to O’Conor to cover the costs of the defense, that he was entirely happy with O’Conor’s representation.” [p. 68]

In an 1867 decision Chase wrote in the case of Shortridge v. Macon, the Davis team received a shock that foretold how Chase would rule if they went to trial and made them all the more determined to avoid one. “In Shortridge v. Macon, Chase confronted secession, Reconstruction, and the postwar consequences of the Union’s recognition of the Confederacy’s wartime status as a belligerent power. He took strongly Unionist position on all three issues, despite his states’ rights and Radical leanings, signaling to Davis’s lawyers that he was not favorably inclined to their cause.” [p. 205] In reading the opinion, Davis’s legal team saw the entire prosecession position go up in smoke. “In the course of denying Macon’s claim, Chase condemned secession as well as the argument that a state’s secession would excuse an individual’s treason, and repudiated the idea that Confederate belligerency had any collateral consequences n the postwar world. The opinion revealed the extent to which Chase considered himself bound by the decision of the battlefield. ‘Those who engage in rebellion must consider the consequences,’ Chase declared. ‘If they succeed, rebellion becomes revolution, and the new government will justify its founders.’ Otherwise, their military actions would be deemed illegal and could ‘originate no rights which can be recognized by the courts of the nation’ against which they had rebelled. Chase flatly denied secession’s constitutionality, relying on the results of the war to do much of the analytical work for him. … He maintained the ‘answer which it has received [on the field of battle was the one that] construction of the constitution warrants and requires.’ Moreover, he held, secession was not a defense to treason. Treason was the levying of war, and war levied ‘under the pretended authority’ of the Confederate government ‘was treason against the United States.’ North Carolina’s secession ordinance did not ‘thereby [absolve] the people of the state from all obligations as citizens of the United States.” [pp. 218-219]

This is really an outstanding book that every student of the war should read. I can highly recommend it. It will give you the full story of the Davis case and will give you insight into other areas of Civil War and Reconstruction legal history. It’s very well written, and it even has actual footnotes instead of endnotes, which is, for me, a big positive. Professor Nicoletti’s footnotes give us pointers to other scholarly works we can consult as well. Get this book.