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.
Boy, this scenario sure sounds familiar. Nothing new under the sun.
Lincoln denied that the confederate States had seceded but that they were still in the ‘United States”. Lincoln initiated a military invasion of the confederate States. Article III Section 3 of the US constitution states; “Treason against the United States, shall consist only in levying War against them…..”
Lincoln was the one who committed treason. He was the traitor, and was duly executed for it.
You make a good case concerning Lincoln’s actions. There is no case to be made that Booth’s actions were the equivalent of “duly executed.”
No, it wasn’t accomplished in strict accordance with ‘law’. But my familiarity with history has clearly shown me that ‘law’ is a term the majority exercising authority employ to describe power and control. Its relationship to the far more important concepts of justice and propriety is not one of equivalency but more often incidental or even accidental rather than intentional.
There is certainly much to be said for what you write. Still, “duly executed” seems to imply due process of law. That certainly wasn’t what happened.
I concur. His execution was not ‘legal, but IMO nevertheless just and proper. Sic semper tyrannis.
Lincoln was a tyrant and traitor. Sherman was a war criminal, a fact he admitted in his own writings. Had the war and a certain play ended differently; they would have answered for it in a court room.
President Davis deserves to be remembered for his stalwart defense of the CSA and his list of accomplishments which are, plain and simple, a mile long and far more impressive when stacked against the so-called heroes of the Lincoln war.
Lincoln’s war was illegal, unconstitutional, un-Christian and unjust. It was carried out by a long list of unholy men using a steady stream of European revolutionaries. They cannot point their finger to a certain legal issue to justify what they did.
The America that our founders envisioned and created existed from 1776 to 1865. What we have had since is Lincoln’s Lost Cause. It’s supposed to be a democratic republic, but it behaves like a corporate oligarchy and lately like a banana republic given the political coups that are taking place. It’s hard to define what it is exactly because it is based on lies. For every one George Washington picture you see on tv on some “conservative’s” walls, you will see 20 Lincoln pics. That is very telling! This is Lincoln’s experiment, not our founders. It’s a lie to pretend we are still the country of 1776.
But back to the basis of the article…all I can say is God bless President Davis and those who gave it their all to fight against it. Oh, to have won that war!
“…un-Christian…” As far as what was un-Christian, a very good case can be made, and was made, that the Revolution was un-Christian. If you haven’t already, read Gregg L. Frazer’s book, “God Against the Revolution. The Loyalists Case Against The American Revolution.” I read it. It’s excellent and important, even in today’s times.
As far as the War between the states, I do think “The South Was Right,” (Kennedy twins), and, “Was Jefferson Davis Right?,” (Kennedy twins), yes, I think he was right.
As far as what exactly the Christian should thank God for, that’s another matter (2 Thess. 1:3), but I do appreciate the point. In reading and learning about Jefferson Davis, I came to like and respect him a lot. And that Lee said he could not not think of a more able man to lead the Confederacy, also spoke volumes to me.
Thanks for the note, Matt…I actually hesitated to include that phrase…it has taken us on a tangent and off subject and for that I apologize. But, found myself compelled to say it at the time because I believe the manner in which Lincoln’s war was waged on civilians and slaves alike (rape, destruction, pillaging, starvation, etc.) is not something I would want to stand and defend in front of a just God. I do not believe He would have sanctioned the war crimes that took place, because they were clearly sinful – but then again, nobody who fought in that war, and just like all of us right now, was or is without sin. General Lee once said after the war when asked about his achievements that he was a sinner saved by grace, nothing more. These are words to live by and ring true eternally.
I do think the way in which that war was fought matters but to the question of whether it is “un-Christian” or not…it’s a tall order to claim that kind of high ground, so in retrospect, I shouldn’t have.
I can have an opinion, but others can have an honest disagreement with my take on it. Your reference to the Revolutionary War is a case in point….and I will check out the book you mentioned.
There is no doubt though that General Lee’s approach with locals and non-combatants was 180 degrees from that of someone like Sherman or a Spoons Butler. And, this brand of leadership reflects on the top brass too, which brings me back to my admiration for Jefferson Davis (the real subject of the article). For people to ever consider him a traitor is factually and historically inaccurate.
I’ll wrap up with this: I believe Lee was more in alignment with the commandment on how we are to treat our neighbors. Beyond his brave and bold leadership, I see General Lee as a role model for every man…he was never shy about his Christain faith, many in his armies were saved throughout the war. He was a humble, duty focused warrior…and not someone who I believe would knowingly violate God’s commands. President Jefferson Davis fought the good fight and had great leaders in the field – he deserves accolades for his efforts, and I believe he did all he could to avoid that war. A traitor? A noble man worthy of the moment? Yes.
Deo Vindice.
It should say NO! after “A traitor?” on that last line …sorry that was a typo.
God bless President Davis.
Hey Billy, thanks for reply, and I wasn’t looking for any apology. Somewhere in what I said, I should have said that I wasn’t trying to say that what Lincoln did was not un-Christian; though, I’m not sure I’d put it that way, especially if he wasn’t a Christian himself. I’ve read that he might not have been one. But, even if he were, I think his actions are in another category. And that category, I think, fits into the 4th institution God of the Bible established, which is human government/nationalism. And because he was head of a government, I think he will give an account of himself. And that doesn’t mean I’m making any excuses for him, at all.
And I don’t think what we’ve gotten to discuss is off topic. It’s more than pertinent especially to those of us who are Christian’s. I am, I’m thinking you are. Davis, I think was, Lee was. So, this matters, and I’m sure Davis was aware of the doctrine of human government in the Bible. On the other hand, I realize this topic is so huge, it can only be discussed here just so much.
I definitely don’t want you to beat yourself up about saying what Lincoln did was un-Christian. As I said, or tried to say, I just wouldn’t put it that way, though I think he and the North were wrong in the war they waged against the South. But, as far as what Lincoln and the Northern government did, it’s not really related to Christianity. It is definitely about Bible human government, but it’s not related to Christian doctrine. They’re two different things or matters. I hope this is making some sort of sense, I fear it’s not, but I’m trying to make it make sense.
As far as the Frazer book, yes I highly recommend it. It’s pertinent to even today. I only just read it in the last six months. A pastor I know, in another state, recommended it. Not to me personally, but he mentioned it in a podcast he has. I have read a lot on the war between the states, including from the great writers here on Abbeville. I learned little to nothing of it in school, but since I moved to the South and have been here a long time, I wanted to learn. And that mid 19th century war goes back to the Revolution too, doesn’t it? I knew some about that time, the Revolution, but I never considered the Loyalists viewpoint, and being a Christian, once I heard about Frazer’s book, I had to read it. I think the Loyalists more than made their case. But that doesn’t mean I don’t have a lot of affection and respect for George Washington, I do. Still, I side with what was the Loyalists argument. But, the Americans won, and so the country’s story goes to that mid 19th century war. I don’t see similarity between that war and the Revolution, as far as the Christian’s faith goes and whether revolution was Christian or not, so I don’t see any wrongdoing on the South’s part, or the individual Southern Christian. Nevertheless, Frazer’s book pertains, even in our day, and it was just a fascinating and eye opening book to me. I’ve said more than enough now.
So, Billy (this comes after my long reply to you), it seemed a natural progression in me coming to Frazer’s book. In trying to understand this country more, and especially that war, the war between the states, it seemed I had to keep going back further, to the early 19th century and earlier, to understand things, the nature of our government, the founding, the debates, the arguments between the Jeffersonian’s and Hamiltonian’s, etc. And then, I just happened to hear about Frazer’s book. So, I was intrigued. I asked myself, should the country have even been formed in the first place? It amazed me that a good case could be made that the colonies should have remained under George III.
Thank lincolon for a fedgov powerful enough to run roughshod over the people…or at least distanced enough to attempt to do so.
While Andersonville prison camp is always brought forth as an example when the North wishes to denigrate the CSA, they always refuse to also bring up prison camps run by the North on Morris Island, and other southern islands, and NEVER mention Camp Douglas in Chicago, the largest Union prison, which was also a bastion of inhumanity, torture, deprivation, and punishment, if not exceeding Andersonville, at the least on a par with that Georgia prison.
Over 4000 Confederates dumped into a mass grave is a testament to Lincoln and Grant’s coarseness.
Also, many of the deaths attributed to the CSA at Andersonville were a direct result of Lincoln and Grant refusing prisoner swaps, hoping to influence and inflame public emotions about the war.
But no one studies their true history anymore.
AMEN! And, to this day they label Captain Henry Wirz was a war criminal, despite the evidence that came to light after they killed him. They fail to mention the fact that the north did not allow Yankee prisoners to testify in his defense. The fact is that the Yankee prisoners ate the same amount of rations as the guards and they expressed the desire to testify in defense of Captain Wirz and were not allowed. This was not a fair trial. This was a lynch mob and a murder and misdirection. They let Wirz take the fall for their decisions to let their own men die.
Like you said, the north would not take their own in a prisoner exchange. Their deaths are on Sherman and Lincoln. They would not even come get them even when Wirz offered to free them without an exchange.
They convicted Wirz on the testimony of a liar who later admitted he had never been there. Was the liar put to death for perjury? No.
Wirz’s on-line record as a “war criminal” should be expunged and the north should apologize for it and correct their deceptive history.
The difference with Confederate prisoners in Yankee camps….they were purposefully starved to death. The north had the rations and chose not to give it to them. They also used our prisoners as cannon fodder. Not to mention the murders committed by the Yankee guards who found it fun to randomly shoot Confederate prisoners like fish in a bowl. This is well documented but strangely enough, never mentioned.
The least we can do as southerners is to not forget Wirz and the sacrifice he made. And, yeah, the truth needs to be told!
My understanding is that the were afraid to try Davis because they feared a trial would reveal that secession was legal.
If I remember aright, Davis WANTED to be tried because he knew that such a public trial would bring to light the ACTUAL treason committed by the Lincoln government and those who served them. And that’s why no such trial ever took place. Pretty much the only difference between the government’s actions then and now is that Davis survived and didn’t “suicide” himself while in prison.