“The Treason Trial of Jefferson Davis: A Panel Discussion”
13th annual Elizabeth Roller Bottimore Lecture
September 25, 2008
A Summary Transcript
Welcome by Hugh West, Chairman of the University of Richmond History
Department
Introduction by S. Waite Rawls, President & CEO, The Museum of the
Confederacy
Good evening, ladies and gentlemen, and welcome to the 13th annual
Elizabeth Roller Bottimore Lecture. As always, we wish to express our thanks
to our cosponsors and hosts, the University of Richmond’s Department of
History. And to the Roller Bottimore Foundation, whose support makes this
lecture possible. In the handout brochure is information about Mrs.
Bottimore and her life-long work on behalf of the preservation and
presentation of history.
As many of you are aware – or certainly should be aware if you are a member of
The Museum of the Confederacy – is that 2008 is the bicentennial birthday of
Jefferson Davis, a Kentucky-born American statesman best known to history
as the only president of the Confederate States of America. In most places
throughout the country, his bicentennial has already been overshadowed by
that of the other Kentucky-born U.S. president, but Davis’ bicentennial has
been a major focus of the Museum’s year. For the 2008 Bottimore Lecture, we
thought it appropriate to explore an important facet of his life.
On May 10, 1865, Jefferson Davis and his family were captured near
Irwinville, Georgia. Davis was imprisoned at Fort Monroe for nearly two
years. The U.S. government indicted him for treason and prepared the case
against him while a team of New York lawyers confidently prepared his
defense. For a variety of reasons, the trial never occurred and at the end of
1868, the U.S. government dropped its case against Davis. The charges
against Davis, the planned defense, and the constitutional and political
considerations that led to the dropping of the charges will be the focus of our
discussion this evening.
Tonight’s topic is relevant not only for the life and career of Jefferson Davis,
but because of its wider implications for Civil War and Constitutional
history. We recently celebrated Constitution Day here in Virginia, and the
subject of tonight’s panel is probably the biggest test in the two centuries of
Constitutional history. If you think I’m making this up, just listen to passage
from a letter from a man in Texas published several weeks ago in the Richmond
Free Press:
“Investigate why charges of treason against a post-war imprisoned Jefferson Davis were
dropped by the United States. If you do so, you will discover that had the trial been
carried out, the U.S. would have to admit that it had no right whatsoever to invade the
independent states that left the Union.”
Among other things, our program this evening will explore the validity of this
point.
To shepherd us through these and other questions, we have assembled a
panel of historians who have researched and written about the Davis case or
Constitutional issues growing out of the Civil War.
I would like to introduce our panelists tonight in alphabetical order. I will
not spend time giving you all their credentials, but will refer you to the
biographies of them that appear in the program.
[biographies from program]
Kent Masterson Brown is an historian and
constitutional lawyer. He earned his law
degree from Washington & Lee University in
Lexington, Virginia, and practices law in his
native city of Lexington, Kentucky. He is also
counselor for the Washington, D.C., firm of
Webster, Chamberlain, and Bean. Creator and first editor of the magazine,
Civil War, Brown is a popular battlefield tour guide and has served on several
battlefield commissions. He is the author and editor of several books, most
notably Cushing of Gettysburg, The Civil War in Kentucky, and the highlyacclaimed Retreat from Gettysburg: Lee, Logistics, and the Pennsylvania Campaign.
He is the founding partner of a new company, “Witnessing History,” that has
produced videos on “Retreat from Gettysburg” and “Bourbon and Kentucky:
A History Distilled.”
Clint Johnson is an historian and journalist. A Florida
native, he earned a degree in journalism from the
University of Florida and he lives today in western North
Carolina. He is the author of nine books, including
guides to the Civil War sites of the Carolinas and
Virginia and West Virginia, the 25 Best Civil War Sites,
and In the Footsteps of Robert E. Lee, Stonewall Jackson, and
JEB Stuart, Civil War Blunders, and The Politically Incorrect Guide to the
South. His most recent book is Pursuit: The Chase, Capture, Persecution
and Surprising Release of Confederate President Jefferson Davis
Cynthia Nicoletti is finishing her doctorate in
history from the University of Virginia, where she
also earned her B.A. and M.A. Her dissertation topic
is “The Great Question of the War: the Legal Status
of Secession in the Aftermath of the Civil War,
1865-1869.” She is a 2003 graduate of Harvard Law
School, where she was senior editor of the Harvard
Journal of Law and Public Policy. She has received numerous fellowships and
most recently was Raoul Berger-Mark DeWolfe Howe Visiting Fellow in Legal
History, Harvard Law School. She has given presentations on her work at the
Harvard Law School Legal History Colloquium and the Law and Society
Association Conference, Montreal, Quebec, Canada. She will be presenting a
paper, “Did Secession Really Die at Appomattox?: The Strange Case of U.S. v.
Jefferson Davis,” at the 2009 Organization of American Historians Conference.
A paper based on a chapter of her dissertation, "The American Civil War as a
Trial by Battle," will be published in the Law and History Review.
First is a former Trustee of the Museum of the Confederacy—Kent Masterson
Brown. He is an historian and constitutional lawyer who can’t seem to stay
out of places named Lexington. He earned his law degree from Washington
& Lee University in Lexington, Virginia, and practices law in his native city of
Lexington, Kentucky as well as in Washington, D.C. All this is probably news
to you who know Kent as a Civil War historian, battlefield guide, and, now,
film producer and narrator. He is best known in these circles for his 2005
book, Retreat from Gettysburg, which we have available for sale tonight.
[Introductions]
First is a former Trustee of the Museum of the Confederacy—Kent Masterson
Brown. He is an historian and constitutional lawyer who can’t seem to stay
out of places named Lexington. He earned his law degree from Washington
& Lee University in Lexington, Virginia, and practices law in his native city of
Lexington, Kentucky as well as in Washington, D.C. All this is probably news
to you who know Kent as a Civil War historian, battlefield guide, and, now,
film producer and narrator. He is best known in these circles for his 2005
book, Retreat from Gettysburg, which we have available for sale tonight.
Clint Johnson is a Patron member of the Museum of the Confederacy and a
prolific historian and journalist whose latest work, Pursuit: The Chase, Capture,
Persecution and Surprising Release of Confederate President Jefferson Davis, is of
obvious and direct relevance to tonight’s topic. Copies of Pursuit are also
available for sale tonight. He researched in the papers in the Museum’s library
related to Davis’ trial defense Clint has written 8 other books and hundreds
of articles.
Cynthia Nicoletti is finishing her doctorate in history from the University of
Virginia, where she also earned her B.A. and M.A. Her dissertation topic is
“The Great Question of the War: the Legal Status of Secession in the
Aftermath of the Civil War, 1865-1869.” Her dissertation is not available for
sale tonight, but you will no doubt see it in bookstores before too many years.
When you do see it, you can boast to your friends, “Yeah, I heard her speak
when she was a graduate student.” Cynthia is also a 2003 graduate of Harvard
Law School and, as you can see from the program, her historical and legal
interests intersect precisely at the point of tonight’s topic.
Format and purpose
The program tonight is a panel discussion, not a debate. We have asked the
panelists to think of themselves as partners working together toward the
common goal of better understanding this topic. We would like to strike a
balance between structured lecture and more free-wheeling discussion among
the panelists and with the audience. So we have asked each of the panelists to
talk for about 10 or 15 minutes on a dimension of the topic. Then we’ll open
the floor to questions from the audience. Our goal is to wrap up the entire
program at 9:00, when we will have a simple reception and give everyone a
chance to enjoy some food and drink and meet our panelists and perhaps get
them to sign the books you just bought.
So let me turn things over to our panelists who will give their preliminary
remarks – in alphabetical order (Brown; Johnson; Nicoletti). Kent?
Opening remarks of Kent Brown
[summarized]
The legitimacy of secession is fundamental to the treason trial of Jefferson
Davis. “If secession is a legitimate remedy for a state, then there is no earthly
possibility of convicting Jefferson Davis of treason.”
If secession is legitimate, it must be found in the Constitution or in form of
the Constitution.
Brown believes secession “is a legitimate remedy and always has been” because
the Constitution is a contract.”
Background on American constitutionalism. There is abundant evidence that
the Founding Fathers considered the states sovereign and the Constitution a
contract. For example:
* In the Constitutional Convention, the states voted as states
* In the Constitutional Convention, emphasis during the discussion was on
the states as states
* Constitution was ratified by states
Several states qualified their ratification of the Constitution:
* Virginia, which stated that the states ceded some of their powers to the new
central government, and that those powers “could be resumed by them”;
* New York (which “may have been the most difficult” of all ratification
debates) similarly reserved the right to resume powers ceded; and
* Rhode Island, which did not join the new nation until after ratification, and
reserved right to resume sovereign powers
“Mutuality” of Constitution: each state gave up something and received a
benefit in return; states were equal except in representation in the House of
Representatives; the arrangement had “mutuality” and other characteristics of
a contract
Termination clause? There was no termination clause in the contract, but
neither was there a reference to any “permanent” status of the union (as there
had been in the Articles of Confederation)
Although there was no formal termination clause, there was “an age-old
remedy” to be found in common law – which provided for withdrawal from
the contract. The Founding Fathers also addressed this:
* In Federalist Papers No. 85, Alexander Hamilton described “recession” from
the compact
* Thomas Jefferson described the remedy of nullification in the Kentucky
Resolutions of 1799 in reaction to the Alien and Sedition Acts and in a letter
of August 23, 1799 to James Madison
* Madison – considered the father of the Constitution – in a 1792 letter to
James Cabell described the Constitution as a “fundamental compact” and
referred to the possibility of civil war or secession, but did specify that it was
warranted only by “gross misbehavior” or a breach of the compact.
In sum, Jefferson Davis “no more committed treason than did Thomas
Jefferson in writing his letter to James Madison.”
Opening remarks of Clint Johnson
[summarized]
The problem of what to do with Jefferson Davis. Abraham Lincoln, in his
meeting with Grant, Sherman, and others on March 25, 1865, told the story
(which he repeated again days later) about the tea-totaler, who would not
object if some liquor made it into his drink “unbeknownst” to him – and that
Lincoln clearly would not object if Davis escaped the country “unbeknownst”
to him. Johnson believes that Lincoln wanted Davis to escape to avoid legal
complications and that this might explain the Federal failure to pursue Davis
to Danville.
Secretary of War Edwin Stanton eventually reversed this course, after
assassination of Lincoln. Even then, the first formal indication that the
Federal government pursued Davis came on May 2nd.
Stanton soon recognized that he had created a problem by taking Davis
prisoner – and not simply killing him. It is possible that Stanton was hoping
to drive Davis insane in captivity so that he couldn’t be a witness for himself.
Legal advice and opinions in North. Pennsylvania Supreme Court chief
justice wrote a letter stating that Davis did not commit treason unless it was
part of a “corporate body” that committed treason. It was, he wrote, no more
possible to accuse Davis of treason than it would to try John Wilkes Booth’s
hand for assassinating Lincoln.
“Celebrity lawyer” Charles O’Conor, of New York – although best known as a
prosecutor – offered his services to Davis. His first task was to get Davis
indicted for something specific. What would that be?
Federal government’s uncertainty: Attorney General James Speed, according
to diary of Treasury Secretary Hugh McCullough, had concluded almost as
soon as Davis was in custody that Davis could not be convicted of treason as
an individual because rebellion was a mass action.
Government considered several other charges against Davis, including (1)
killing of U.S. Colored Troops prisoners at Fort Pillow; (2) complicity with
alleged atrocities at Andersonville prison camp; (3) complicity in assassination
of Lincoln
Formal indictment for treason came on May 8, 1866 based on a violation of
the July 13, 1862 law forbidding anyone from “making war” on the United
States. The violation supposedly occurred on June 15, 1864. The indictment
did not specify what occurred that day to warrant the charge and the records
reveal no event to explain the date.
Government’s delay of the case. U.S. Supreme Court Chief Justice Salmon
Chase repeatedly delayed the trial on a series of technicalities. O’Conor
realized that Chase was delaying things. Davis was finally released from Fort
Monroe and brought to court in Richmond on May 17, 1867 for a brief
appearance. Prominent Northerners put up the bail and Davis was released.
Trial dates were repeatedly set and reset as the government struggled to find
something against Davis. A trial date was set for November 1867, with the
case to be heard in Richmond by Judge John Underwood and Chief Justice
Chase (in whose circuit it was).
Chase met in secret with O’Conor, without government lawyers present, and
asked O’Conor to argue that recently ratified Fourteenth Amendment had
punished Davis enough in that he no longer could hold public office and that
he could not be punished again without “double jeopardy.” O’Conor argued
that point and Chase voted to free Davis, but Underwood voted to hold Davis
over for a trial before the U.S. Supreme Court. Realizing that in any trial
before the Supreme Court, Chase was already on Davis’ side, U.S. Attorney
General William Evarts approached O’Conor about dropping all charges if
Davis agreed to give up his right to a trial. O’Conor, speaking for Davis who
was still in England, agreed to those terms and the charges were dropped. In
December 1868, President Andrew Johnson pardoned Davis.
In conclusion, Johnson’s contention is that Lincoln signaled to his generals
Grant and Sherman, as well as to his cabinet, that he wanted Davis and the
rest of the Confederate cabinet to escape the country so there would be no
trial of any of them as any trial would essentially become a trial over the
legality of secession. While Lincoln had maintained in public that the states
were rebelling against the Union, an actual trial could prove that secession
was legal. If secession was proved legal, the United States – not the
Confederacy- could be blamed for starting and continuing the war.
Lincoln’s plan was to let the Confederate cabinet escape and then let the
Southern states back into the Union with little punishment. With no one to
try in a court, and with no charges filed by the Union, the nation would have
returned to its pre-war status – but without slavery in place.
Lincoln’s assassination turned those plans on their heads. Without any
regards to Lincoln’s wishes, Secretary of War Edwin Stanton, and the Radical
Republicans in Congress, ordered the arrest of the Confederate cabinet and
rushed into place a period of punishment now called Reconstruction. Once
Davis was arrested and in prison, Stanton and the rest of the government
realized, too late, that they now had to try Davis for some sort of crime. But,
almost immediately, the finest legal minds in the nation rallied behind Davis
and worked to free him in the firm belief that he had committed no crime
and the United States could prove nothing against him.
Opening remarks of Cynthia Nicoletti
[summarized]
Did Jefferson Davis commit treason? It was relatively easy for the U.S.
government to make the case that he did. The constitutional definition of
treason is “levying war against the United States.” Just about everything Davis
did as president of the Confederacy had something to do with waging war
against the United States.
But did the act of secession negate Davis’s duty of loyalty to the U.S.? In other
words, could secession be a “defense” against treason?
There was a precedent. In 1863, Judge Stephen Field, in a federal circuit court
case from San Francisco, directed a verdict against the defendants on the
grounds that secession could not constitute a defense against treason. Field
later referred Chase to the case [U.S. Greathouse, 26 F. Cas. 18 (1863)],
believing that the Chief Justice could follow his example and instruct the
Davis jury in similar terms.
When we talk about the prosecution fearing that Davis’s case would expose
the legality of secession, we should unpack that statement. There are several
possible ways that secession could be vindicated in the Davis case.
(1) The pro-secession argument is so powerful that even Davis’s prosecutors
recognized its persuasiveness and were themselves convinced that they could
not legally convict Davis of treason. We have to discount this possibility, as
they had all been staunch Unionists and some of them had litigated this issue
during the Civil War.
(2) The judge could issue an opinion or instructions to the jury that secession
was constitutional and a legitimate defense. Some considered this a
possibility in the Davis case because Salmon Chase had been a states’ rights
man (although also anti-slavery) before the war. But this theoretical possibility
dissipated in the Davis case because Chase in 1867 had declared [Shortridge
& Co. v. Macon, 22 D. Cas. 20 (1867), and subsequently reconfirmed the
principle at greater length in Keppel v. Petersburg R. Co, 14 F. Cas. 357
(1868)] that secession had no merit.
(3) Jury could negate instructions or the law. This was the government’s “real
worry” because a hung jury would defeat the case and seemingly vindicate the
legitimacy of secession.
The Davis case jury was the first interracial jury in U.S. history. Even with the
“ironclad oath” (supposedly disqualifying Confederates), the government was
concerned that Confederate sympathizing jurors would be seated. If Davis
were acquitted, the government had no right to appeal.
O’Conor’s defense strategy was concerned primarily not with vindicating the
cause of secession, as winning a victory in a court of law would hardly act to
overturn the verdict of the battlefield – but the life of Jefferson Davis. Davis
could very well receive the death penalty if convicted. O’Conor was not sure
that what he termed the “mongrel jury” would buy an argument based on the
legitimacy of secession. O’Conor was aware that the government considered
the case something of a “third rail” and was scared that it might a trial.
O’Conor’s “brilliant strategy” exploited this fear. He “bluffed.” Meanwhile,
he “tipped off” the prosecution that he would focus on the constitutionality
of secession and hinted that Chase (with his states’ rights background) could
not be trusted and that the jury was also untrustworthy. Even as he agreed to
delays, he complained about them. In short, he “manipulated” the
prosecutors and “gave the government reason to be worried.” He ensured
that the time table of the case would be extended, thereby buying time for
public outrage to die down against Davis, and rendering it politically possible
for the government to drop the suit. He was able to achieve his main
objective—Davis’s freedom—through this strategy.
Questions and Answers from the Audience
Q: Who was the top-ranking official who had to sign off on Jefferson Davis’ release?
A [Clint Johnson]: Probably Attorney General William Evarts, whom he
believes was the person who “leaked” information from the government to
O’Conor.
Q [posed to Kent Brown]: One of the remedies was to “rescind” the contract; but in
common laws, it’s necessary to ask the court to rescind the contract, right?
A: Yes, that is correct.
Q [posed to Cynthia Nicoletti]: You said that Davis as president “waged war”; isn’t it
more accurate to say that he “waged defense” against the U.S. government?
A [Cynthia Nicoletti]: She does not believe the government would have to
prove that the South fired the first shot [though it did] in order to make its
case. The mood in the nation after the war did not require the government to
prove what Davis and the Confederacy did between 1861 and 1865 was
waging war.
The law did not require the government to prove this. All the government
had to do to make out a prima facie case against Davis was prove that he made
war on the U.S.—i.e., that he put armies in the field and engaged in battles
with U.S. forces. Any possible justification and reason for fighting (even
some kind of argument that the CSA fought only because it was under attack)
simply didn’t matter. This is not merely her opinion, but none of the lawyers
at the time thought this was a potential issue.
A [Kent Brown]: Davis’ statement in his inauguration made clear the position
that the South merely wanted to be left alone and disclaiming any aggressive
intent.
Q: Is it true that Charles O’Conor was a much-honored man and that there was a
statue of him in New York City that was removed to a less conspicuous place when
someone discovered that he had defended Jefferson Davis?
A [Cynthia Nicoletti]: Yes, essentially. He was an extremely prominent lawyer
of his day. He was, from our perspective, “basically a racist,” a man of his
time. But he said a lot of things (beyond defending Davis) that do not sit well
with the modern notion of what a “great” lawyer should be.
Q: Wasn’t the issue raised at the Constitutional Convention about the possibility of
using coercion or force against a state attempting to secede? Wasn’t the issue was raised
and refused?
A [Kent Brown]: There was no discussion in the Convention about secession,
but there was discussion about the use of force by the central government
against the states – for other reasons. The issue was not resolved. It reveals the
states’ fear of a coercive central government.
Q What was the public’s reaction to Davis’s continued imprisonment?
A [Clint Johnson]: By the summer of 1867, “everyone was bailing and looking
for a way to get out of the case.” The newspapers, speaking for the public,
were all worried about what would happen if Davis came up for trial and won.
Q: What was Buchanan’s perspective on the war? Was there any merit to his position
that states possessed no right to secede, but that the federal government possessed no
right to coerce states back into the Union?
A [Cynthia Nicoletti]: A northerner who was an international law specialist
edited a large volume during the war [William Beach Lawrence’s 1863 edition
of Wheaton’s Elements of International Law] in which he addressed the
constitutionality of secession. He basically gave three perspectives on
secession: Calhoun’s, Buchanan’s, and Lincoln’s. He took no position on
which was correct, and intimated that the war would sort it out. Despite the
fact that Buchanan took no stance on the issue, he was lambasted after the
war as a secessionist. This demonstrates how the war itself was seen as the
arbiter of constitutional questions.
Q: Because constitutionality of secession depended on cause (a “gross violation” of the
compact), did the South not fill out “a bill of particulars” to explain its actions?
A [Kent Brown]: Actually, all the states did so with documents stating the
reasons for their actions. They were “very legalistic people.” The South
Carolina “Declaration” of December 1860 referred to all that it had suffered
since 1852 and the federal government’s violations of the compact.