The Failure to Convict Jefferson Davis for Insurrection

Lieber proposed a constitutional amendment to deal with this problem, too. One draft read, “Trials for Treason or Sedition shall be in the State or district in which they shall have been committed unless the administration of justice in the respective State or district shall have been impeded by the state of things caused by the commission of the criminal acts which are to be tried.” In other words, you shouldn’t have to try someone for treason in a state where you can’t possibly convict him of treason. That proposal went nowhere. A doctrine called “constructive presence,” which informed the 1807 prosecution of Aaron Burr, might have argued for holding the trial in a Northern state—the governor of Indiana, for instance, volunteered to try Davis in his state, where the Confederate Army had marauded. But Speed, exercising the greatest possible caution, resolved that the case would be tried in Richmond, partly because Salmon P. Chase, the Chief Justice of the United States, was on the U.S. circuit court in Richmond. (At the time, Supreme Court Justices rode circuit.) Chase, who had previously served Ohio as a U.S. senator and as its governor, was best known for his abolitionism (people called him “the attorney general for fugitive slaves”) and for his ambition (he was, it was said, as “ambitious as Julius Caesar”). In 1864, even while he was Lincoln’s Secretary of the Treasury, he had sought the Republican nomination for President, after which Lincoln accepted his resignation and nominated him to the Supreme Court. Speed hoped that Chase’s presence on the bench at the Davis trial, alongside a district-court judge, would provide the proper degree of authority and solemnity. This didn’t solve the jury problem.

Then there was the question of the lawyers. Speed assigned the case to the federal district attorney for the Eastern District of Virginia, Lucius H. Chandler, who had virtually no trial experience. Having moved to Virginia from Maine, and never having supported the Confederacy, Chandler was one of only two lawyers in Virginia who had not been disqualified from practicing in federal court in Richmond owing to disloyalty. Speed brought in the New York lawyer William Evarts to direct the prosecution. Evarts, nearly as ambitious as Chase, was happy to participate in what he called “the greatest criminal trial of the age.” But he left the legwork to Chandler.

Davis, still in military prison, arranged for his wife, Varina, to retain Charles O’Conor, the celebrated New York trial lawyer and pro-slavery Confederate sympathizer. “I have not left a stone unturned under which there crept a living thing,” O’Conor liked to say. He was among the most famous lawyers in the country; he was also despised by Black Americans. An editorial in a Black newspaper based in San Francisco declared that he was “as great a traitor as Jeff Davis.” O’Conor’s strategy for his new client was to delay a trial for as long as possible, while the national mood cooled. Luckily for O’Conor, slow-rolling is what Speed wanted, too.

Lieber was not wrong to worry that Davis could run for President. In January, 1866, Alexander Stephens, the former Vice-President of the Confederacy, was elected to the Senate. Two former Confederate senators and four former Confederate congressmen had also been sent to the Thirty-ninth Congress, which had convened the previous month for its second session. The clerk refused to call their names at roll, and they were never sworn in. But their presence made clear the need for measures keeping “from positions of public trust of, at least, a portion of those whose crimes have proved them to be enemies to the Union, and unworthy of public confidence,” as a congressional committee wrote.

A fifteen-man Joint Committee on Reconstruction began considering proposals to disqualify former Confederates from federal office and, at the same time, to guarantee the equal citizenship of freedmen. In January, 1866, the committee held hearings to inquire into the delay in prosecuting Davis, and called the Virginia judge in charge of the case, John C. Underwood. A New York-born abolitionist and Radical Republican appointed to the U.S. District Court by Lincoln in 1864, Underwood had issued a series of rulings protecting equal rights, declaring, in one case, that “all distinction of color must be abolished.” He’d also suggested that he intended to sell Davis’s Mississippi plantation to ex-slaves for a half-dollar an acre. White Virginians despised him; the feeling appears to have been mutual. The committee asked Underwood whether any jury in Virginia was likely to convict Davis of treason. “Not unless it is what is called a packed jury,” Underwood answered. The committee then summoned Robert E. Lee, who offered a similar assessment:

Question. Suppose the jury should be clearly and plainly instructed by the court that such an act of war upon the United States, on the part of Mr. Davis, or any other leading man, constituted in itself the crime of treason under the Constitution of the United States; would the jury be likely to heed that instruction, and if the facts were plainly in proof before them, convict the offender?

Answer. I do not know, sir, what they would do on that question.

Question. They do not generally suppose that it was treason against the United States, do they?

Answer. I do not think that they so consider it.

What about a Black jury? Black men were banned from jury service, with dreadful consequences. In 1865 and 1866, in five hundred trials of whites accused of killing Blacks in Texas, all-white juries found all five hundred defendants not guilty. “Are our lives, honor, and liberties to be left in the hands of men who are laboring under the most stubborn and narrow prejudice?” the editor of one Black newspaper asked. In March, Congress passed the Civil Rights Act, which enshrined the right to testify in criminal trials. Johnson, in a statement that the attorney Henry Stanbery helped craft, vetoed the bill, warning that it might lead to Congress declaring “who, without regard to color or race, shall have the right to sit as a juror.” Congress overrode the veto, and kept on with the work of extending rights to Black men and denying them to former Confederates. In April, the Radical Republican Thaddeus Stevens added to the proposed Fourteenth Amendment a new section that would disqualify from Congress any former federal officeholders or servicemen who had taken “part in the late insurrection.” There followed much discussion of who, exactly, was to be disqualified, with one version of the amendment stating, “The President and Vice-President of the late Confederate States of America so-called . . . are declared to be forever ineligible to any office under the United States.” This, however, was not the version that Congress sent to the states for ratification, in June, which, in any case, the states of the former Confederacy refused to ratify. Congress, one North Carolinian said, wanted Southerners to “drink our own piss and eat our own dung.”

Lieber grew resigned to a foul outcome. “The trial of Jeff. Davis will be a terrible thing,” he thought. “Volumes—a library—of the most infernal treason will be brought to light,” but “Davis will not be found guilty, and we shall stand there completely beaten.” Frederick Douglass blamed Johnson, predicting, as a newspaper reported, that “Davis would never be punished, simply because Mr. Johnson had determined to have him tried in the one way that he could not be tried, and had determined not to have him tried in the only way he could be tried.” And, even if he were tried, any verdict would be appealed to the Supreme Court, which, in the aftermath of the Dred Scott decision, could hardly be said to have enjoyed unqualified confidence. Harper’s Weekly asked, “Does anybody mean seriously to assert that the right of this Government to exist is a question for a court to decide?”

…In March, 1867, again overriding Johnson’s veto, Congress passed the Military Reconstruction Act, which called for the occupation of the former Confederacy by the U.S. Army and stipulated that no state could reënter the Union without first ratifying the Fourteenth Amendment. Congress also endorsed jury service for Black men. In Texas, when the military governor announced that Black men would be allowed on juries, some judges refused to hold court. In Virginia, Underwood impanelled Black jurors for Davis’s trial. Many Northerners approved. “The trial of Jefferson Davis, for leading the Rebellion in behalf of Slavery, should be before a jury made up in part of freedmen, if only for the historic justice, not to say the dramatic beauty and harmony, of such a denouement,” the New York Tribune wrote. But Southern newspapers expressed disgust at the “African quota of the Grand Jury,” describing the men, swearing an oath on the Bible, as having “smacked their lips over the sacred volume when permitted to get at it.” And an editorial that ran in both the North and the South asked, “If Davis is to stand before a nigger jury, what becomes of the notion that a man is to be tried by a jury of his peers?”

When a new trial date came—June 5, 1866—Davis wasn’t there; he was in military prison. Lucius Chandler stayed home sick. Chief Justice Chase spent the day in his library in Washington, where he wrote a letter to his daughter. Outside his window, he could hear a newsboy crying, “ ‘Dai-l-y Chron-i-cle!, full account of ’ something I don’t understand what and ‘trial of Jeff Davis!’ ” O’Conor, knowing that Chase wouldn’t be there, didn’t bother to show up, either. Chase maintained that he could not possibly attend a civilian court in Virginia, because the state was still under military rule. Chase planned to run for President in 1868, and he wanted no part in the trial of Jefferson Davis. He had his eye on the election.

Underwood rescheduled the trial for October. But the Chief Justice had no intention of showing up in October, either. Meanwhile, any momentum there ever was to prosecute Davis withered as congressional Republicans pursued Reconstruction, a plan that involved treating the former Confederacy as a conquered nation. If a trial were held and Davis argued that he could not have committed treason because, after Mississippi seceded, he was no longer a U.S. citizen, the government would have to argue that he had always been a U.S. citizen. But if he had been a U.S. citizen during the war, then the Confederacy had not been a foreign belligerent, and the U.S. could not justify its occupation of the region as a “conquered province.” Under these circumstances, Radical Republicans became some of Davis’s most ardent defenders. Gerrit Smith, a fiery abolitionist, helped post bail, and that fiercest of congressional radicals, Thaddeus Stevens, secretly offered to represent Davis.

Over the summer, Speed resigned: he supported the Fourteenth Amendment; Johnson opposed it. In Speed’s place, Johnson appointed Stanbery, who’d written the President’s veto of the Civil Rights Act. When Chandler travelled to Washington to confer with Evarts and Stanbery, the new Attorney General explained that he not only wouldn’t lead the prosecution but also wouldn’t attend the trial. The three men decided not to object to O’Conor’s request that Davis be released on bail. And so it was that on May 13, 1867, Jefferson Davis walked into the federal courthouse in Richmond, eyed the grand jury, and smiled. (Grand jurors operate in secrecy and would not normally appear at such a hearing, but Underwood had seemingly insisted on the presence of the mixed-race jury, to serve, as he said, as “ocular evidence that the age of caste and class cruelty is departed, and a new era of justice and equality, breaking through the clouds of persecution and prejudice, is now dawning.”) When the prosecution said that it was not prepared for trial, Underwood agreed to release Davis on bail. “The business is finished,” O’Conor wrote to his wife. “Mr. Davis will never be called up to appear for trial.”

…A new trial date was set, for November 25th. No one expected the prosecution to be ready. Two years after Davis’s arrest, Chandler had still not conducted any investigation, or prepared a superseding indictment. Underwood told Speed that he believed Chandler was a Confederate sympathizer who was making money by selling pardons. But it may well be that the prospect of Black men on the jury led the government to abandon the prosecution, fearful that Black men issuing a verdict that condemned a white man to death would inflame the country beyond any possibility of repair. O’Conor at one point assured Varina Davis, “Chandler professes the kindest disposition and says he will try to get a White jury. But this is impossible. Underwood is a devoted courtier at the feet of Sambo and there is no appeal from his decisions.” The trial jury, O’Conor warned, “will be composed of 8 or 9 negroes and 3 or 4 of the meanest whites who can be found in Richmond.” He wrote to Varina, “I find it impossible to believe that we are destined to play parts in a farce so contemptible as a trial before Underwood and a set of recently emancipated Negroes, but it is equally impossible to assert with confidence that the thing will not happen.”

The thing did not happen. On the day the trial was to begin, a crowd assembled in Richmond to wait for the train from Washington. “The colored population seemed to take a deep interest in the proceedings, and were on hand en masse,” a correspondent for the New York Times reported. The train pulled up. “Has Mr. Chase come?” people cried. He had not. At the courthouse, Underwood announced that the court was adjourned. It’s one of the sorriest moments of the whole sorry story. A newspaper reported that there had been a crowd outside the courthouse, “consisting chiefly of blacks,” but upon hearing the announcement the crowd “quietly dispersed.” No justice, only peace. And peace is not enough.

Then as now, what one half of the country thought best for the country the other half thought worst. In February, 1868, the House impeached Johnson, having investigated him for, among other things, intentionally derailing the Davis prosecution. Lieber favored impeachment, not least for the precedent that it would establish. “As to history, it will be a wonderful thing to have the ruler over a large country removed for the first time without revolution,” he wrote. The same hesitancy that derailed the Davis prosecution derailed the Johnson impeachment: so grave a thing, to try a king. In any event, the Johnson impeachment trial grossly interfered with the Davis treason trial. At the Senate impeachment trial, Chase presided, as Chief Justice, and Evarts led Johnson’s defense, joined by Stanbery (who had resigned his position as Attorney General), which led to yet more postponements.

There was one last gasp. With Chandler’s term as district attorney expiring in June, Evarts recruited the Boston lawyer Richard Henry Dana to join the prosecution. Dana worked hard to prepare for trial. In a Richmond hotel, he and Evarts readied a new, fourteen-count indictment, based on the testimony of multiple witnesses, including Robert E. Lee, who had testified against Davis before a new grand jury. (Evarts wrote a parody of Chandler’s earlier, cursory indictment: “I have arrived at the fact that J.D. used to wear a Confederate uniform on great occasions, and have a witness who can prove it, in the person of a colored waiter who came to me last evening.”) But Dana reluctantly concluded that the trial should not proceed. What seemed more urgent was to disqualify Davis from ever again holding public office; sending him back to prison, or, God knows, hanging him, could have been almost as bad for the country as acquitting him. Dana drafted a letter of resignation on both lawyers’ behalf, and sent it to Evarts, who pocketed it, unsure what to do.

By the time Chase and Underwood finally held court together in Richmond, in December, 1868, the Fourteenth Amendment had been ratified, and Chase had discreetly suggested to the defense a new line of reasoning: that Davis could no longer be prosecuted for treason because, having been disqualified for office upon the amendment’s ratification (“It needs no legislation on the part of Congress to give it effect,” the defense said), he had already been punished. O’Conor gleefully offered up this argument, suggested to him by the Chief Justice himself. Dana, who knew the argument to be nonsense, countered that the Constitution is not a criminal code and that being disqualified from office is not a penalty. Chase agreed with O’Conor; Underwood agreed with Dana. The case would have gone to the Supreme Court. But, on Christmas Day, Johnson pardoned “every person who directly or indirectly participated in the late insurrection or rebellion,” and, not long after that, the prosecution entered a nolle prosequi. The end.

…Amnesty is a kind of charity. It is not usually given with malice toward none. “More than six years having elapsed since the last hostile gun was fired between the armies then arrayed against each other,” Ulysses S. Grant told Congress in 1871, “it may well be considered whether it is not now time that the disabilities imposed by the Fourteenth Amendment should be removed.” Over the objections of the first Black members of Congress, Congress voted for a general amnesty. In the Senate, Charles Sumner tried to attach civil-rights provisions to the bill, on the ground that both measures involved the removal of disabilities and the guarantee of rights. “Now that it is proposed that we should be generous to those who were engaged in the rebellion,” Sumner said, “I insist upon justice to the colored race everywhere throughout this land.” Or, as the Black congressman Joseph Rainey said of ex-Confederates, “We are willing to accord them their enfranchisement, and here today give our votes that they may be amnestied,” but “there is another class of citizens in this country who have certain dear rights and immunities which they would like you, sirs, to remember and respect.” The amnesty bill passed, without civil-rights guarantees. A civil-rights bill did pass in 1875; eight years later, the Supreme Court found it unconstitutional.

Salmon Chase ran for President in 1868 and 1872 and lost. Lieber died in 1872, Chase and Underwood in 1873, Sumner in 1874. In 1876, Lucius Chandler put stones in his pockets and drowned himself. Jefferson Davis died of a cold in 1889, at the age of eighty-one. He was buried in New Orleans; his remains were later moved to Richmond. In 2020, Black Lives Matter protesters pulled down an eight-foot-tall statue of him that had been made by Edward Valentine and erected on Richmond’s Monument Avenue in 1907. The fifteen-hundred-pound statue—defaced, toppled, and streaked with paint—is currently on display in a room at Richmond’s Valentine museum, whose founding president was the sculptor himself. In 2021, a group calling itself White Lies Matter stole a stone chair dedicated to Davis from a cemetery in Selma, and held it for ransom. Harper’s reported this fall, “A New Orleans tattoo shop owner was cleared of charges in a ransom plot to turn the Jefferson Davis memorial chair into a toilet.”

Aside from that single day in Richmond in May of 1867, Davis never appeared in a courtroom to defend himself against the charge of treason. But, for the Presidential trial that never happened, twenty-four men had been assembled for a jury pool. Twelve of them were Black. So momentous was the occasion that the twenty-four men sat for a photograph: twelve white men and twelve Black men posed, cheek by jowl, hands on one another’s shoulders, the picture of a promise. Joseph Cox was a blacksmith who, like his fellow-juror Lewis Lindsey, served as a delegate to Virginia’s 1867 constitutional convention. At the event, where delegates elected Underwood to preside over the proceedings, Lindsey proposed a disqualification clause, which would bar former supporters of the Confederacy from holding office. John B. Miller, born free, worked as a barber; he was later elected to the Virginia House of Delegates. Albert Royal Brooks, born into slavery in 1817, had bought the freedom of his wife, Lucy Goode, their three youngest children, “and the future increase of the females”—his own unborn, nor yet conceived, children and grandchildren—for eight hundred dollars. Lucy Goode Brooks had a cameo made: a silhouette of her husband taken from that photograph of him as a juror called to determine whether Jefferson Davis had committed treason against the United States. She wore it as a brooch for the rest of her life.