I just finished reading Cynthia Nicoletti’s “Secession on Trial,” a meticulously researched account of how the United States attempted to convict Confederate ex-president Jefferson Davis for treason. Arrested in May 1865, he was indicted in 1866, but no trial ever occurred. After years of being subject to maneuvering and postponement on the part of both the government and the defense, President Johnson issued a general amnesty. But in the meanwhile, the course of the trial and its tactics are fascinating and in particular, how the defense’s covert delay ultimately allowed Davis to avoid trial for his life.
In some cases, social issues implicated by the trial are so overpowering that they fundamentally distort the decision at hand. Lawyers in the case have to identify those issues and then decide whether and how to address them—or whether their existence entirely rules out trial as alternative.
In U.S. v. Davis, launched in the immediate wake of the Confederate surrender at Appomattox, that gravitational question was the original legality of secession—whether the Confederate states had a right, implicit in the Constitution, to secede, or whether secession was illegal from the start. There was no doubt that the war itself, a “trial by battle” in which 700,000 Americans lost their lives, ended the states’ rights and pro-slavery agenda of the Confederate South for good. But if secession had been legal, and the Confederacy a defeated nation and not a collection of renegade states, then the concept of treason would not apply. Instead, the Confederacy would have been a defeated belligerent, entitled to be treated just as a foreign country would having lost in armed conflict.
Most of us, based on the standard historical account, would consider the question clear and closed. But looking at contemporaneous news accounts and correspondence, which the author does a wonderful job of bringing to life, we see active and intense debate over a very unclear legal issue.
It was this uncertainty that gave rise to much of the drama around the Davis trial. Some in the Johnson administration and in the Republican Party, especially the Radical Republicans, wanted to set an example, trying and executing high-ranking Confederate politicians, Davis chief among them. Yet, a loss at trial threatened to delegitimize the costly and bloody war and the victory for Union that it brought. Add to this the requirement that Jefferson be tried before a civil jury in Richmond, Virginia — President Johnson and most of his cabinet did not want to use a military tribunal for fear that it would be perceived as fundamentally unfair — and the possibility of jury nullification and a huge public loss was a real one.
Recognizing this fear, Davis’ lead counsel, prominent attorney Charles O’Conor, saw how to manage timing. The reality, with Davis’ life on the line, is that Davis did not want to risk trial. But O’Conor very openly proclaimed Davis’ wish to move forward quickly to vindicate the Confederacy: they would defend on the basis that secession was legal and that Jefferson, as the head of a defeated but formerly sovereign nation, could not be charged with treason. By consistently and publicly representing a high level of confidence in his case, and a desire to move forward as quickly as possible, defense counsel skillfully played on the government’s worries to postpone the trial time and time again. Although the government retained its own nationally-prominent and skilled counsel — William Evarts and Richard Henry Dana—it was O’Conor whose strategy carried the day.
By controlling timing in this way, O’Conor was able to force the issue in 1868, nearly four years after the prosecution had launched. Had there been a trial, he knew it would be presided over by not one, but two judges — one of them, Judge Underwood, a well-known Unionist, and the other, Salmon Chase, a Justice on the Supreme Court and a recurrent presidential aspirant. They held opposing views on Davis’ guilt, which O’Conor knew, and when he moved in late 1868 to dismiss the entire indictment, the two judges split in their ruling. That split forced the case to the Supreme Court, where its resolution would be much less certain.
It was a winning maneuver: The scenario of having the critical question of whether secession was legal taken from the battlefield to the Supreme Court was not one President Johnson and his advisors wanted to play out. So, on Christmas Day 1868, the President issued a proclamation of universal amnesty. The trial was over, and the prosecution formally withdrew the indictment against Jefferson in early 1869.