The Boston Daily Adviser, July 25, 1865, stated exactly what was on the line:

“If Jefferson Davis is innocent, then it is the government of the United States which is guilty; if secession has not been rebellion, then the North in stifling it as such, has committed a crime.”

That the question was even asked tells us that the legality of secession was at minimum an open question. How then could Jeff Davis be convicted of treason? The North wanted legal vindication of its trial by battle in a trial by court, but recognized the stakes were high and vindication far from certain. The press in New York City was insisting that no treason had taken place and Jeff Davis was merely obeying an order of his rightful sovereign – the State of Mississippi. The New York World asserted, “To submit the secession question to a court is to imply that it is still open to doubt!” The paper then concluded that even if the court did “decide that secession is a constitutional right, Unionists would not yield their convictions on this subject.” Therefore, the paper concluded “the trial of Mr. Davis is little better than a judicial farce.” (New York World, May 16, 1866.) Harpers Weekly noted the possibility of acquittal which if happened would mean the US Government had “waged war against those whom the courts would have justified in their actions.” (Harpers Weekly, May 26, 1866.)

The Chief Justice of the Pennsylvania Supreme Court G. W. Woodward wrote:

“But is secession treason? That’s a grand question. If it is not, war in support of it cannot be… It will have to be defined and made plain, unless indeed we continue to set aside all law and administer only drumbeat justice.” (G. W. Woodward to Jeremiah Black May 28, 1865)

Lincoln knew his claims about secession’s illegality were not certain, and therefore hoped Jeff Davis would escape. He told Gen. Sherman, “I’m bound to oppose the escape of Jeff Davis, but if you could manage to have him slip out unbeknownst-like, I guess it wouldn’t hurt me much!” (Sherman interview, New York Times, July 4, 1865).

Jeff Davis believed a trial would vindicate the Confederate cause. For this reason, he steadfastly refused to apply for a pardon. His private secretary wrote to his mother, “he has all along earnestly desired a trial, confident the world and posterity would see the thing in its right light…” (Burton Harrison to his mother, June 13, 1866.)

Considering the uncertainty regarding the illegality of secession, US Attorney General James Speed received pressure from all angles, including Sec of State Seward and Sec of War Stanton to try Davis in a way that would ensure his conviction at all costs.  Sen James Doolittle proposed a bill that would manipulate the qualifications of jurors to ensure they could be counted on to convict him. Representative William Lawrence introduced a bill to ensure a conviction that was a potential violation of the Constitution. When warned he declared himself “willing to go to the very verge of the Constitution…” (Congressional Globe, 39th Congress, 2nd sess, 12/11/1866).

When an indictment was returned against Davis based on “thin” testimony, the New York Daily News protested that the prosecution had rigged the proceedings by selecting a grand jury predisposed against him. (The New York Daily News, May 12, 1866.) In charging the grand jury the Judge in the case, John C. Underwood, made it clear he thought Davis guilty prompting one courtroom observer to remark, “if he and his packed jury of ferrets and Yankees were to be permitted to have anything to do with Mr. Davis, he would have but a slim chance for justice.” (New York Times, May 12, 1866; David Powell to Elizabeth Dabney Saunders, June 8, 1866.) When asked if he could pack a jury to convict Davis, Judge Underwood responded, “I could pack a jury to convict him: I know very earnest, ardent Union men in Virginia.” (Report of the Joint Committee on Reconstruction, 1866, testimony of John C. Underwood.)

An interesting book that looks at the legal shenanigans surrounding the attempt to put Jefferson Davis on trial is titled Secession on Trial, written by University of Virginia law professor and Harvard Law School graduate Cynthia Nicoletti. While no apologist for the South, Professor Nicoletti is a rare honest voice in academia regarding the legality of secession and the attempt to convict Davis on the premise of secession’s illegality.  She admits the attempts at “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.” It has remained unmoored ever since. Nicoletti points out the federal government’s greatest fear:

“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.”

Nicoletti’s book ends with a critique of Texas v. White, the court case that is said to vindicate the claim that “secession was illegal.”  She exposes that case as a classic example of special pleading; pointing out that “the momentous constitutional question that had animated the Civil War was never actually argued.” She says that Salmon Chase, the justice who wrote the deciding opinion in the case “was doing what was necessary to ensure that the law as made by the courts fit with the ruling already issued on the battlefield…. he faced enormous pressure to ensure that the battlefield’s determination was ratified by law.” She correctly acknowledges that “Chief Justice Chase ‘answered’ the secession question in the Union’s favor without really considering it, because an answer that contradicted the outcome of the war would have been unbearable.” Nicoletti concludes:

“No wonder none of the parties involved in the Davis matter (except Davis himself) wanted to see the case through…. If the verdict in the case had not matched the results of the war, Americans might have been forced to acknowledge that war was ultimately more powerful than law. Or, on the other hand, they might have allowed law the power to reverse the most desperate of human struggles, and learned to live with an outcome that condemned the war.”

We Southerners have every reason to condemn that war! The North was plagued by a culture of lawlessness. Is it any wonder then that the South decided to secede, and sought to do so not because of slavery, tariffs, internal spending, bounties, centralization, or any other numerous complaints they levied against the North? These were all mere symptoms of a more fundamental disease that led to secession, namely, Northern infidelity to the legal compact that held the States in Union. The South simply had had enough and sought independence from a section of States with a long self-serving history of a lawless disregard for the Constitution.

Rod O'Barr

Rod O’Barr is retired and lives in Tennessee with his wife of 45 years, Kathy. He has advanced degrees in Philosophy and Theology, and a lifelong interest in history. He is the webmaster of a WWII website and a member of both the Abbeville Institute and the SCV. When not enjoying time with his children he enjoys doing living history at local schools.


  • Earl Starbuck says:

    That “lawless disregard for the Constitution” plagues us to this day. Neither letter nor spirit is adhered to, and even those politicians who style themselves lovers of the Constitution have no real understanding of the document, their perceptions having been shaped not by the Founding Fathers, but by the activist SCOTUS justices of the 20th century, and by apologists for Mr. Lincoln.

    • Billy P says:

      Amen! This country made a conscious decision to sell its foundation, its soul, and keep the myth of Lincoln alive, rather than face the truth or even question its own actions. I get tired of seeing pictures of the tyrant Lincoln behind these so-called, freedom loving, constitution loving conservatives on tv and radio. Levin, Beck, Watters, Kilmeade…just to name a few.

      • Jeremy says:

        Yes. I love the Glenn Beck show, but he still fails to face the fact that the America that we know is the product of Lincoln and not the founders. Perhaps when or if people would see this, it would change a lot of political views.

  • William Quinton Platt III says:

    That the oath of office was changed in 1862 tells you all you need to know about the right of the States to secede and the behavior of the officers who followed their States.

    You can type into your search engine the following, “1830 oath of office” and you will be taken to the US Army history site which will explain to you in detail how the oath administered to officers has changed throughout the nation’s history. The 1830 oath demands the officers swear loyalty to “…bear true allegiance to the United States of America, and that I will serve THEM honestly and faithfully against all THEIR enemies…”.

    We can debate whether an officer who swore an oath to protect THEM is swearing to protect ALL of the States or only the officer’s particular State…what we cannot debate is the CHANGE OF THE OATH OF OFFICE IN 1862…OUR YANKEE BRETHEREN BELIEVED THE OATH NEEDED TO BE CHANGED…which begs the question, WHY CHANGE SOMETHING THAT WAS NOT IN NEED OF CHANGE?

    The 1862 oath is sworn NOT TO THE UNITED STATES…but to the CONSTITUTION OF THE UNITED STATES. So, instead of being loyal to the States or the individual State, the oath is to the Constitution. Instead of swearing allegiance to a State or a Nation, you swear to a “piece of paper” (as per every politician who wanted to get around limits placed on his insanity by the Constitution).

    It is all so “open and shut” that only a fanatic could dispute the findings. But today, we are surrounded by fanatics on one side and the clueless who have been brainwashed by the fanatics.

    Thankfully, the fanatics cannot completely erase history. The Corwin Amendment still states the true reason for the war (how could the war be about slavery if slavery was going to forever be protected from federal intrusion in the States remaining IN the yankee union AFTER the Cotton States departed?). BT Washington still states he “loved his master” and “would have laid down our lives to protect the White women and children left in our care”. Frederick Douglass still states, “there are thousands of black Confederate soldiers FIGHTING for the rebels” and “I got in a fistfight with my master and gave him a good beat down, though I was not punished, regardless of the lies about the nature of slavery which indicate I would have at least been put to death for beating a White man.”

    Thank you for your efforts to educate.

    • Robert Caffery Sr says:

      “It is all so “open and shut” that only a fanatic could dispute the findings. But today, we are surrounded by fanatics on one side and the clueless who have been brainwashed by the fanatics.”

      William Quinton Platt III you have summed in one outstanding sentence the problem we face today! Awesome, sir!!

    • scott thompson says:

      i guess with all the nu-judge interpretations of the constitution….whether the oath included the words ‘constitution’ or just plain old united states….the Yankee creeps would still have found a way to create nebulous meanings….especially with rapid newcomers in the northern port cities, desperate, with certain euro-socialist leanings with first contacts of ‘becoming desperate’ south-hating Yankees.

      • Paul Yarbrough says:

        The key: “Yankee creeps.” These are the people who actually found a way to turn gold into iron. And they speak proudly of it.

        • billybob says:

          the traitors in the south wanted to own slaves, and they started a war with the union they were destined to lose.
          In the 21st century, the koolade drinking maga cult members think that they’ll complete what their forefathers failed to do 160 years ago, which was a desire to overthrow the union. check out this week’s scotus rebuff of alabama, the days of conservative power are almost over…
          tRump lost, as did the south in the civil war.
          quit whining and cryin’ like sore losers.

    • billybob says:

      bill clinton platt 3 has not one single clue what he is talking abut. maybe you should go back to arkansas?

  • David LeBeau says:

    Excellent work, Hot Rod!

  • Lloyd Garnett says:

    Very well done, Mr. O’ Barr! Thank you very much.

    Somewhere, I read that 2 successive U. S. Attorneys General and 2 successive Special Prosecutors reached the same conclusion: Secession is not rebellion and that therefore, Jeff Davis could not be convicted of treason.

    And I read that Chief Justice Chase advised Johnson’s cabinet of his own conclusion to the same effect. (Tho since my piece last May, I was reminded that a historian of note, has issues with this claim’s veracity.)

    It would be interesting, therefore, to read the accounts of the AG’s and Special Prosecutors, as well as Underwood’s ruling/opinion justifying Davis’s release without trial.

    Meanwhile, the ratification caveats by Rhode Island, New York and Virginia, by which they reserved the Rights to resume all powers delegated to the Federal government, having been accepted and never refuted by all 13 original states under the Constitution, would seem to be in force.

    Yet, most accept that by force of arms somehow, a new governing principle encased the Constitution, such that the states singly and severally, have no recourse when their interests are repeatedly despoiled, but to just yield and take it.

    Not only is this political helplessness NOT supported by the Constitution, but it is antithetical to the USA’s founding spirit and directly the opposite of that declared in The Declaration Independence.

    We were not surprised that as they pulled down our Confederate memorials, they quickly went on to ripping at Thomas Jefferson and the whole founding. Because of slavery, they say, “consent of the governed” is a racist, “white construct”. “Consent of the governed”, in actuality is the construct that defies totalitarianism.

  • Ken says:

    I believe this analysis is consistent with the fruit of the Lincolnite tree that we see spreading its tentacles around the globe, stealing, killing, corrupting.

  • Mohican says:

    Has anyone read Albert Taylor Bledsoe’s book : Is Jefferson Davis a traitor?

    • Joyce says:

      Mohican, this is my belated reply to your question about Bledsoe’s book. Yes, I have read it and I think it might be the best defense of the Constitutional right to secede. It is a remedy to tyranny. Joyce

  • John Saffold says:

    Excellent article Mr. O’ Barr! You make a very compelling case that indeed “the North . . . has committed a crime.”

    Also, interesting to read so many edifying comments in response to your writing. I found Mr. Lloyd Garnett’s comments particularly interesting and to the point. Yes, Mr. Garnett, you are correct; after the 2 Attorneys General declined to prosecute Jefferson Davis, President Andrew Johnson engaged 2 of the most renowned prosecutors of that time and gave them special prosecutor status; first, John J. Clifford, who, after reviewing the case, said that he had “grave doubts” concerning the case and that the U.S. Government could “end up having fought a successful war, only to have it declared unlawful by a Virginia jury.”

    Then, a year after Clifford declined to take the case, famous writer (Two Years Before the Mast) and attorney, Richard Henry Dana was appointed special counsel, but Dana observed, “a conviction will settle nothing in law or national practice not now settled . . . as a rule of law by war.” In other words, prudence would dictate that the North should just accept that “might makes right” and move-on rather than risk exposing and incriminating themselves as the tyrannical usurpers and criminals they truly were.

    Of course, Jefferson Davis refused any pardons and wanted a trial; he was absolutely convinced of the legality of secession, and a trial would have been his opportunity to vindicate the South and its cause. Anyone interested in reading more about the legality of secession, and why Jefferson Davis was never put on trial should read Chapter 12, entitled, The Trial of the Century That never Was: The United States versus Jefferson Davis, in Charles Adams’ superb book entitled, When in the Course of Human Events, Arguing the Case for Southern Secession.

    In January of 1848, Abraham Lincoln said: “Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right-A right which we hope and believe is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people, that can, may revolutionize, and make their own of so much of the territory as they inhabit.”

    Question: What changed Lincoln’s mind?
    Answer: Follow the money.

    *The cause of “The War to Prevent Southern Independence” was not Slavery. It was the Secession of the Southern States. The South was paying 87% of the tariff revenues funding Lincoln’s federal government; Lincoln simply could not afford to let the South secede.

    In his First Inaugural Address, he referred to a proposed law (Corwin Amendment) which he said had already passed both houses of congress, stating that he had no problem signing it into law if only the South would return to the Union, i.e. if the South’s reason for seceding was their desire protect the institution of slavery, they could have had it guaranteed in the U.S. Constitution beyond repeal (“irrevocable”) via the Corwin Amendment without ever firing a shot! Of course they declined because their real reason for seceding was their desire for self-government- NOT PROTECTING SLAVERY!

    • William Quinton Platt III says:

      Lincoln didn’t get the option to “sign the Corwin Amendment” into law. Presidents are spectators in the Amendment process.

      There have only been 33 “laws” passed by both houses of congress and sent on to the States. Twenty-seven of these are Amendments to the US Constitution. Only 6 made it to the ratification process without becoming Amendments. The Corwin Amendment is a smoking gun of the “American Civil War”…the yankees were in full-scale panic mode as they were about to lose their captive market for cotton…and they were going to be “forced” to pay the cost of their federal government…by themselves.

      The so-called “American Civil War” is another smoking gun. Why not just call it what it was, “The War between the Free States and the Slave States”? I am sure if slavery had been extinguished in the “union” prior to the 13th Amendment (the one which became the 13th because the Corwin Amendment was ratified in only 5 States), that’s what the yankees would call the War. But since the war wasn’t over slavery, the yankees can only lie and opine about how the American Civil War (their name for it) was actually about “slavery”…because people are too stupid to realize that once again…the government is LYING to them. The “union” Army marched South to free the slaves…so why not call it the “freedom” Army?

      Finally, as mentioned above, the yankees changed their oath of office for military officers in 1862. Prior to the change, officers swore to protect the States…as States were the basis of the united States…as bewildering as that seems to some.

Leave a Reply