The post-war Jefferson Davis: The famous trial that never was

By Bill Ward

When the War Between the States ended, the victorious Northerners
viewed Jefferson Davis, as the former President of the Confederate
States of America, much differently than others who had served the

For example, when Robert E. Lee surrendered to U.S. Grant at Appomattox
Court House, the meeting between the two generals was amicable.
Lee was received and treated with courtesy as a senior officer.
The terms were so apparently lenient, with Grant conceding to Lee’s
requests on behalf of his soldiers, the surrender was referred to
as “a gentleman’s agreement.”

However, even after signing a loyalty oath, Lee and other former
Confederate Army officers and members of the CSA government were
later disenfranchised and treated as second-class citizens. But
in the eyes of the northern public, Jefferson Davis was set apart
for still a different kind of treatment.

On May 10, 1865, about a mile from the town of Irwinville, Georgia,
Federal troops captured Davis. With his arrest on that spring morning,
his government ceased to exist. His wife, Varina, and their children
were sent to Savannah, where she was kept under virtual house arrest
and forbidden to leave the city. Because the soldiers, carpetbaggers
and Union supporters treated the Davis children so badly, Varina
arranged for them to go to Canada along with her mother.

Davis had been taken back to Virginia and imprisoned in Fort Monroe,
where he would stay for the next two years. At first, he was bound
in leg irons. Guards watched him around the clock but were not permitted
to speak to him. He was allowed no visitors; a light burned in his
cell day and night; and his only reading material was a Bible. His
treatment was a clear violation of the Bill of Rights.

Many Northern Congressmen and newspapers were nothing short of vicious
in their public attacks of Davis. They wanted to see him tried for
treason and hanged. In one article, and in one very long sentence,
the New York Times referred to Davis by every insulting comment
and offensive name that was fit to print. Rhetoric far outran legal

But if Davis was in an unusual legal predicament, so was the United
States government. The dilemma faced by Washington was how to handle
the Davis case. The government under Lincoln had created its own
major obstacles by spending four years proclaiming that secessionists
were “traitors and conspirators.” The U.S. military
had silenced opposition to the administration by closing down newspapers
that dared challenge the party line or to make the slightest suggestion
that secession might be legal. Thousands of Northerners had been
jailed for exercising their First Amendment rights, and those thousands
had friends with long memories in the Northern bar.

Northern lawyers were angry for having their clients locked in prison
with no civil rights as guaranteed by the Constitution; having civilians
tried by military courts for non-existent crimes; having a government
that ignored the Supreme Court, setting itself above the constitutional
plan of checks and balances. They didn’t like having to beg
the president for justice for clients convicted by phony courts-martial
or locked up for long periods without any trial. Under Lincoln,
the U.S. government had become tyrannical, and certainly anything
but a free and constitutional society.

The best lawyers of the day were willing to volunteer to defend
Jefferson Davis, because they were angry at the way Lincoln’s
government had trampled the Bill of Rights and the Constitution
for four years. Even those who didn’t believe in secession
were repulsed by the conduct of the Republican administration and
the U.S. military.

Charles O’Connor of New York, one of the most famous trial
lawyers of the era and a man of great stature in the legal profession,
volunteered to be Davis’s counsel. Salmon P. Chase, Chief
Justice of the Supreme Court, would be the trial judge.

But interesting things began to happen, and the government’s
dilemma became even worse. University of Virginia Law Professor,
Albert Bledsoe, published a book, “Is Davis a Traitor?”
Bledsoe methodically took apart the case against secession, delivering
a solid blow to the prosecutors and dampening their zeal to try
Davis. Prosecutors actually began to look for a way to avoid trying
him without vindicating the South.

Then another method was decided on for prosecution. The attorney
general would bring in outside, independent counsel, as we have
seen in modern times, such as in Watergate or the Clinton scandals.
The government needed someone of great standing in the legal community
to be the lead prosecutor. It chose John J. Clifford. But after
reviewing the case, Clifford withdrew citing “grave doubts”
about the validity of the case. The government could “end
up having fought a successful war, only to have it declared unlawful
by a Virginia jury,” where Davis’s “crime”
was alleged to have been committed.

President Johnson, Lincoln’s successor, thought the easiest
way out would be to pardon Davis, as he had pardoned many other
Confederates. But Davis refused, saying, “To ask for a pardon
would be a confession of guilt.” He wanted a trial to have
the issue of secession decided by a court of law — where it
should have been decided to begin with — instead of on battlefields.
Most Southerners wanted the same.

Northerners either forgot or were unaware of a great secessionist
tradition in America. Southerners were not alone in their view that
each state had the right to determine its own destiny in the Union.
The procedure for joining the Union also applied to withdrawing
from the Union.

That thought harkens back to an editorial by the Cincinnati (Ohio)
Daily Inquirer, in the summer of 1861, after the “traitor”
label was let loose by the North: “The Republican papers are
great on treason. . . . It is treason to circulate petitions for
a compromise or peaceful readjustment of our national troubles .
. . to question the constitutional powers of the President to increase
the standing army without authority of law . . . to object to squads
of military visiting private houses, and to make search and seizures.
. . to question the infallibility of the President, and treason
not to concur with him. . . It is treason to talk of hard times;
to say that the war might have been avoided. It is treason to be
truthful and faithful to the Constitution.”

A year after John Clifford withdrew, the government appointed another
special counsel, Richard Dana of Boston, who had written the novel,
“Two Years Before the Mast.” But after reviewing the
evidence, he agreed with Clifford; the case was a loser. Dana argued
that “a conviction will settle nothing in law or national
practice not now settled…as a rule of law by war.” Dana
observed that the right to secede from the Union had not been settled
by civilized means but by military power and the destruction of
much life and property in the South. The North should accept its
uncivilized victory, however dirty its hands might be, and not expose
the fruits of its carnage to scrutiny by a peaceful court of law.

Now, over two years after Davis’s imprisonment and grand jury
indictments for treason, the stage was set for the great public
trial of the century. Davis had been released from prison on a $100,000
bond, supported by none other than Horace Greeley, the leading abolitionist
writer in the North and a former Lincoln supporter. Greeley and
a host of others were outraged at the treatment Davis had received,
being locked up in a dungeon for more than two years with no speedy

Since two famous special counsels had told the government its case
was a loser, finally, none other than the Chief Justice, in a quirk
of Constitutional manipulation, devised an idea to avoid a trial
without vindicating the South. His amazing solution was little short
of genius.

The Fourteenth Amendment had been adopted, which provided that anyone
who had engaged in insurrection against the United States and had
at one time taken an oath of allegiance (which Davis
had done as a U.S. Senator) could not hold public office. The Bill
of Rights prevents double jeopardy, so Davis, who had already been
punished once by the Fourteenth Amendment in not being permitted
to hold public office, couldn’t be tried and punished again for

Chief Justice Salmon P. Chase secretly passed along his clever argument
to Davis’s counsel, Charles O’Connor, who then made
the motion to dismiss. The Court took the motion under consideration,
passing the matter on to the Supreme Court for determination.

In late December 1867 while the motion was pending, President Johnson
granted amnesty to everyone in the South, including Davis. But the
Davis case was still on the docket. In February 1868, at a dinner
party attended by the Chief Justice and a government attorney, they
agreed that on the following day a motion for non-prosecution would
be made that would dismiss the case. A guest overheard the conversation
and reported what was on the minds of most Southerners: “I
did not consider that he [Davis] was any more guilty of treason
than I was, and that a trial should be insisted upon, which could
properly only result in a complete vindication of our cause, and
of the action of the many thousands who had fought and of the many
thousands who had died for what they felt to be right.”

And so, the case of United States versus Jefferson Davis came to
its end — a case that was to be the trial of the century,
a great state trial, perhaps the most significant trial in the history
of the nation — that never was.

©April 2006