Phil Leigh’s Civil War Chat

Was Jefferson Davis a Traitor?

Although commonly condemned as a traitor, he was never convicted of the crime. Here’s the rest of the story.

(August 1, 2024) While many Civil War students argue that Jefferson Davis was a traitor, he was never convicted of the crime because Federal prosecutors dropped the case. Specifically, in February 1869 Attorney General William Evarts notified Davis’s counsel that all prosecutors were told to apply nolle prosequi to all his indictments.

To be sure, after Lincoln’s April 15, 1865, assassination many Northerners wanted Davis executed. War Secretary Edwin Stanton took charge of the prosecution. On May 2, 1865, he persuaded President Johnson to offer a $100,000 reward for Davis’s arrest as a conspirator in President Lincoln’s murder. He also wanted Davis tried by a military court instead of a civil one, anticipating a higher probability of conviction. Between 10 May and 30 June, a military tribunal tried eight John Wilkes Booth accomplices. Four were hanged on 7 July.

Davis had been fleeing for the Trans-Mississippi from Georgia when he was captured by Michigan cavalry on 10 May. He was taken to Fort Monroe, Virginia on the Chesapeake Bay, placed in a dungeon, and temporarily clasped in irons on 23 May. His wife was not allowed to see him for almost a year afterward. Prior to that his visitors were mostly limited to legal counsel and the Fort’s physician.

In May 1865 a Virginia court charged him with treason, but the papers got lost. Consequently, he was charged again in Washington City, but it was quashed for want of jurisdiction. In the civil courts a treason trial must take place in the locality where the offense occurred. Thus, on 10 May 1866 carpetbag Judge John C. Underwood directed the local prosecuting attorney (Lucius Chandler) to draw up an indictment, allowing him only 2-3 hours to prepare it. It was a bad job that would require considerable augmentation for a good case. Additionally, Attorney General James Speed wanted a more experienced and respected judge. His solution was to have the case tried in the applicable Circuit (Appellate) Court where Supreme Court Chief Justice Salmon P. Chase would co-preside with Underwood.

Meanwhile, the fight over punishing Davis morphed. As the post-bellum months ticked by, Military “justice” lost popularity with the public and Chase announced that he would not sit in a trial where the outcome might be overruled by a military commission. With Ex parte Milligan the Supreme Court ruled in April 1866 that trying citizens in military courts is unconstitutional when civilian courts are available.

War Secretary Edwin Stanton was one of the last holdouts for tribunals. Through a letter-writing campaign, Jeff’s wife (Varina) had enlisted the help of one of Stanton’s friends, John Garret, president of the Baltimore and Ohio Railroad. Garrett persuaded Stanton to turn the Davis case over to the civilian courts.

Earlier Stanton had been looking for ways to charge Davis with war crimes such as conspiracy to murder Lincoln or conspiracy to maltreat Union prisoners at the Andersonville prison camp. Despite being convicted for prisoner maltreatment, the Andersonville commandant, Henry Wirz, refused to implicate Davis. Similarly, the case against Davis for participating in Lincoln’s assassination collapsed when two key witnesses recanted their statements and one (Charles Dunham) committed perjury.

With Stanton no longer a roadblock, Davis’s attorneys petitioned Underwood for a writ of Habeas Corpus. He issued the writ and Davis’s lawyers carried it to Fort Monroe, where Davis was released to present it to Underwood’s court in Richmond on May 13, 1867. After the Federal prosecutors stated they were not yet ready to try the case, Davis’s lawyers asked Underwood to consider bail. He put the figure at $100,000, which was posted by three prominent Northerners, Horace Greeley, Gerrit Smith, and Cornelius Vanderbilt.

Although Davis was out on bail, Federal prosecutors started organizing a new indictment in November 1867. When it was filed in March 1868, half of the 24-man jury pool was composed of blacks, but the case was temporarily derailed by President Johnson’s impeachment in the spring of 1868. Impeachment required the presence of Chief Justice Chase and some of the Federal officers involved in the Davis case.

The impeachment ended on 26 May. Chase dismissed the Davis indictment on 5 December due to a provision in the recently ratified Fourteenth Amendment that punished Davis indirectly by making him ineligible to hold any Federal office. On Christmas Day 1868 President Johnson offered a broad amnesty to ex-Confederates which included Davis. He could apply for a pardon if he wanted it.

Ultimately, the most important argument against a treason conviction was that Davis could not commit treason against a nation without being a citizen of that nation. He argued that when Mississippi left the Union it took his citizenship with her. Moreover, when Mississippi and ten other states formed a new Confederacy, they demonstrated that they were not merely a disordered group of insurrectionists. They had created a new nation via secession. When Lincoln imposed a blockade under the terms of the 1856 Paris Treaty, he was indirectly recognizing the Confederacy as an independent nation. Finally, the Southern state secession ordinances and the Confederate constitution self-proclaimed their sovereignty from the beginning.

By warring with the Confederacy as a nation, instead of an insurgency group, Lincoln was validating secession as legitimate.