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.