In the early hours of Thursday, May 11, 2017, city workers in New Orleans, Louisiana, wearing masks and heavily guarded by police, removed a 106-year-old statue of Jefferson Davis, the president of the Confederate States of America. New Orleans mayor Mitch Landrieu explained the city’s reasoning: “To literally put the Confederacy on a pedestal in some of our most prominent public places is not only an inaccurate reflection of our past, it is an affront to our present, and a bad prescription for our future.”1
Landrieu recognized what most historians have long understood. The Confederate cause was an act of treason against the United States undertaken for the most reprehensible of reasons: the maintenance of white supremacy and race-based slavery. As Confederate vice president Alexander Stephens explained, “the proper status of the negro in our form of civilization . . . was the immediate cause of the late rupture. . . . Our new government is founded upon . . . the great truth that the negro is not equal to the white man; that slavery—subordination to the superior race—is his natural and normal condition. This, our new government, is the first in the history of the world, based upon this great physical, philosophical, and moral truth.”2
The common practice of referring to the Confederates as “rebels” rather than “traitors” tends to obscure historical reality. Throughout the war, supporters of the Union denounced the Southern secessionists as traitors, which they clearly were.3 The Confederate Army and those who supported it were “levying war against the United States” under even the narrowest interpretations of that provision. It was the most widespread act of treason in the history of the United States, with hundreds of thousands of people engaged in open warfare against their own government. A Cincinnati newspaper expressed a common sentiment after Fort Sumter: “Treason must be crushed with the strong arm of this Government, and the majesty of the laws vindicated, if need be, by a million of men, at the point of the bayonet and at the cannon’s mouth!”4 Ulysses S. Grant agreed, concluding in April 1861 that there “are but two parties now, Traitors and Patriots and I want hereafter to be ranked with the latter.”5 An Ohio legislator pointed out that the purpose of the war was to “redress the wrongs and insults to our flag and to punish traitors.”6 Union soldiers heartily sang the “Battle Cry of Freedom,” one of the best-selling songs in American history, containing the memorable phrase “down with the traitor, up with the stars.”7
In theory, every Confederate soldier could have been prosecuted, convicted, and executed for treason, with the possible exception of those soldiers who had been drafted into the army, who might have been able to raise a defense of compulsion. But mass executions were neither likely nor desirable. The consistent English and early American practice with rebellions had been to punish only a handful of high-level leaders, while granting generous pardons to everyone else. During the American Revolution, for example, Thomas McKean, the chief justice of Pennsylvania and a signer of the Declaration of Independence, argued that all Loyalists should eventually be pardoned, with the exception of a handful of wealthy or cruel people, whose estates should be forfeited.8 Similarly, President Abraham Lincoln urged the nation in his Second Inaugural Address to “bind up the nation’s wounds” and to act “with malice toward none”—and this did not include drenching the nation with further blood. Following Lincoln’s assassination, his successor, President Andrew Johnson, largely followed this advice, issuing an amnesty proclamation on May 29, 1865, to any former Confederate who swore to uphold the Union.
But the Confederacy’s principal leaders presented a different case, and they were deliberately excluded from Johnson’s initial proclamation. The South’s leading general, Robert E. Lee, was arguably saved by the generous actions of General Ulysses S. Grant at Appomattox. Grant’s surrender terms pledged to leave the surrendering officers and enlisted men undisturbed by “United States authority” so long as they observed the laws in force where they resided and did not rejoin the Confederate Army.9 That left the most prominent Confederate of all, Jefferson Davis, the president of the Confederacy, at the center of the Union crosshairs. Many Northerners clamored for his head, arguing that an execution would provide an appropriate conclusion to the Civil War. A group of women from Northampton, Massachusetts, for example, stated that they were “very anxious that Jeff Davis—that traitor who has already lived too long—should be hung up by the neck. . . . Let him be hung! Is the cry of the daughters of the Bay State.”10 Pennsylvania men proposed to erect an enormous scaffold to hang “Jeff Davis the great American Traitor.”11 The notion had been taken seriously since the beginning of the war. An early version of the popular song “John Brown’s Body” promised to “hang Jeff Davis to a tree.”12
The cries of “traitor” would have rung hollow for most of Jefferson Davis’s life. Indeed, if he had died in 1860, he would have been remembered primarily as a loyal and dedicated American. A graduate of West Point, Davis had served with distinction in the Mexican War, incurring a painful foot wound at the Battle of Buena Vista. His first wife was the daughter of Zachary Taylor, who later became president of the United States. He had been a member of the United States House of Representatives, a United States senator from Mississippi, and United States secretary of war under President Franklin Pierce. Sometimes mentioned as a possible presidential candidate, he was an early advocate of a federally sponsored transcontinental railroad and had even received an honorary doctor of laws degree from Bowdoin College in Maine. But when Mississippi seceded from the Union in January 1861, Davis reluctantly resigned his United States Senate seat and returned to his plantation home, where over one hundred enslaved persons toiled for the benefit of Davis and his family. A month later, Davis was elected president of the Confederate States of America.
The Confederate Constitution imposed a six-year term for the presidency, without the possibility of reelection. Davis served as Confederate president throughout the Civil War, which, contrary to all initial expectations, dragged on for four bloody years. On April 3, 1865, Union troops seized Richmond, Virginia, the Confederate capital, hoping to capture Davis. But he had fled the city the previous evening and began a long journey south. His luck finally ran out on May 10, 1865, when he was captured by a Union cavalry force in Irwinville, Georgia, and sent into federal custody at Fortress Monroe, Virginia.
Many Americans had hoped that Jefferson Davis would simply disappear, perhaps escaping to England, like Judah Benjamin, the Confederacy’s secretary of state. But Davis’s capture presented the country with the momentous question of what to do with him. Opinions were bitterly divided, and the fate of Jefferson Davis would prove to be one of the most contentious issues facing America in the post–Civil War years.
The final decision rested with the administration of President Andrew Johnson. There were a number of possible options. Davis could be pardoned outright, as a gesture of national reconciliation that might help heal the wounds of the Civil War. He could be tried by a military tribunal, possibly for complicity in the Lincoln assassination or for war crimes committed at the notorious Andersonville prison. Or, most plausibly, he could be indicted and tried in a civilian court for treason against the United States.
In speeches during the Civil War, Johnson had insisted that “treason must be made odious.” He repeated this claim shortly after assuming office, arguing that “treason against the government of the United States is the highest crime that can be committed, and those engaged in it should suffer all its penalties. . . . Traitors must be punished and impoverished.”13
Johnson’s cabinet, however, was unable to reach a consensus on Davis’s fate. Each option presented serious complications. A pardon of Davis would be inconsistent with all of Johnson’s prior statements and would allow a great villain to escape unpunished. A military trial was of doubtful legality and would have raised suspicions that the government was unfairly stacking the deck against Davis. But indictment and trial for treason in civilian court, seemingly the simplest solution, also posed serious difficulties.
The first problem was the jury system. Although some argued for trying Davis in Pennsylvania on the theory that he had been constructively present at the Battle of Gettysburg, United States Attorney General James Speed rejected that argument, concluding that Davis had to be tried in the state where his crimes were actually committed.14 That state was Virginia, so any jury would be drawn from a pool of Virginians. There were various techniques to ensure that the jurors would not be arch-Confederates, but the fundamental problem remained: even one juror sympathetic to the Confederate cause (or subject to social pressures) could force a hung jury and prevent a conviction. Even more concerning, a Southern jury might acquit Davis outright, the worst possible outcome from the federal government’s perspective.
The second problem was that if Davis was convicted, the Johnson administration would have to decide whether to pardon him or to execute him. Neither option was especially appealing. A pardon looked like irresolution in the face of clear treason, but an execution risked turning Davis into a Southern martyr, around which Confederate sympathizers could rally for generations.
The third problem involved even deeper questions that went to the heart of what the Civil War had supposedly resolved. As legal historian Cynthia Nicoletti has demonstrated in her superb book, Secession on Trial: The Treason Prosecution of Jefferson Davis, Davis had a potential defense to the treason charge. Davis would argue, his lawyers suggested, that he was incapable of committing treason against the United States, because at the time of his alleged treasonous acts, he was a citizen of the Confederate States of America; as such, he owed no allegiance to the United States of America and was legally incapable of committing treason against it. This argument, of course, could prevail only if the secession of the Confederate states was lawful.
But did states have a constitutional right to secede from the Union? The issue had supposedly been resolved by the Civil War itself, and most constitutional historians tend to agree. It was the case of Grant v. Lee, decided in 1865 at Appomattox Courthouse. There was something unsettling, however, about a legal issue being decided entirely on the basis of military force, a resolution seemingly reminiscent of discredited medieval trials by combat. No court had ever squarely addressed the constitutionality of secession, but a treason trial of Jefferson Davis would raise the issue directly. For most Northerners it was simply unthinkable that a court would side with secession, effectively declaring unconstitutional the efforts the North had employed to save the Union. What court would ever say that?
Yet there were Northerners who were fervently hoping for precisely that odd result. In 1866, Jefferson Davis received support from the most unlikely person imaginable—Radical Republican Thaddeus Stevens, who had defended Castner Hanway in 1851. Stevens had devoted his entire life to the antislavery cause and was determined to use federal authority and military force to transform the South into a racially egalitarian society. Those goals would be more difficult to achieve if the South had never legally seceded—the Constitution significantly limited certain types of federal authority over the states. But if the Southern states had lawfully left the Union and had then been defeated in a war of conquest, they could be ruled by military authority as conquered territories with none of the constitutional protections given to states. To further the goals of Radical Reconstruction, Stevens thus offered to represent Davis and to help make the argument that secession was constitutional. Under this view, Davis was not legally a traitor, but the former head of state of a conquered foreign country. Although Davis rejected Stevens’s offer, concluding that the argument was not helpful to the cause of the South more generally, theories like Stevens’s exposed even more difficulties for the Davis prosecution. The strongest opponents of the South might actually support Davis’s acquittal.15
The final problem arose from an argument stressed repeatedly by Davis’s attorney, Charles O’Conor of New York. During the war, the Union had treated the Confederacy as a belligerent power; that is, it had recognized a state of war between the Union and the Confederacy, and had undertaken actions, such as the naval blockade of the South, that were typically only engaged in by two nations at war. The United States Supreme Court had confirmed the legality of these actions in its 1863 decision in The Prize Cases,16 but O’Conor argued that the recognition of belligerent status implied an inability to apply the domestic criminal law of treason to defeated Confederates. As O’Conor put it, “belligerent acts upon the rebel side performed in the due and orderly prosecution of a recognized civil war are not proper subjects of criminal prosecution during the conflict or after its close.”17 Supporters of the Union strenuously disagreed with this theory and insisted that nothing in The Prize Cases was intended to preclude subsequent treason prosecutions, but the issue remained open and potentially subject to an adverse ruling in court.18
All of these concerns led the federal government to drag its feet. On January 6, 1866, United States Attorney General James Speed issued an opinion stating that when the courts reopened, Davis would be subject to trial for treason in a civilian court in the state where his crimes were committed.19 But by the end of 1866, no such trial had occurred. In May 1867, after two years in confinement, Davis was transferred to civilian authority and the government consented to his release on bail.
Part of the problem was Chief Justice Salmon P. Chase, who would preside over any trial along with United States District Judge John C. Underwood. Chase had been a prominent supporter of the antislavery cause, and had been a principal rival of Abraham Lincoln for the 1860 presidential nomination. Lincoln appointed Chase as secretary of the treasury and later, following the death of Chief Justice Roger Taney, as chief justice of the United States. Chase had never entirely given up his presidential ambitions and he viewed the prospect of a trial with distaste, fearing that it would undermine his political prospects no matter how it was resolved. Accordingly, Chase relied on a variety of arguments to avoid holding court in Virginia.
In March 1868, the government issued a new treason indictment against Davis to clean up technical problems with the previous indictment. In a vivid demonstration of the changes wrought by the Civil War, the grand jury included three African-Americans and was the first federal grand jury in American history to be racially integrated.20
The case looked like it might finally be heading for trial in late 1868, but Chief Justice Chase made a dramatic intervention, tipping off the defense team about a possible new argument that could be made on Davis’s behalf.21 The Fourteenth Amendment, ratified a few months earlier, contained a provision dealing with former Confederate officials. Section Three stated:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof.
The section’s primary effect was to bar most former Confederate officials from holding public office, either in the federal government or the states (although the penalty could be lifted by a two-thirds vote of both houses of Congress). Chief Justice Chase now suggested that Section Three was intended as the exclusive punishment for treason during the Civil War. Because Jefferson Davis was already punished by exclusion from public office, any further prosecution would be unconstitutional.
This argument was not especially compelling, and in normal circumstances might have been dismissed as frivolous. Section Three says nothing about exempting Confederate officials from treason prosecutions or any other criminal punishments. If such a result was intended, the drafters chose a very strange and opaque manner of stating it. As attorney Richard Henry Dana argued on behalf of the prosecution, “Probably nothing would more surprise the people of the United States than to learn that, by adopting Amendment XIV, they had repealed all the penalties against treason, insurrection, or rebellion.” Moreover, Davis’s interpretation of the amendment led to the “unjust and absurd” result of “reliev[ing] persons holding high office, and therefore the more guilty, from the penalties of death and imprisonment, and leav[ing] those penalties in full force against all persons engaged in a rebellion who did not at the time hold public office.”22
But Chase seized on this argument like a life preserver—it gave him a face-saving way out of a case that would otherwise hopelessly capsize his political ambitions. When Davis’s attorneys moved to dismiss the indictment under the Fourteenth Amendment theory, Chase readily agreed. But the other presiding judge, Judge Underwood, was unpersuaded. With the trial court divided 1–1, the constitutionality of Davis’s prosecution was thus set for an appeal to the United States Supreme Court, where, of course, Chief Justice Chase would be one of the justices hearing the appeal.
The bottom line for the Johnson administration, however, was now clear—the chief justice of the United States had stated in open court that the treason prosecution of Jefferson Davis was unconstitutional. On Christmas Day, 1868, President Johnson finally threw in the towel and issued an amnesty proclamation for all Confederates not covered by previous pardons, including Jefferson Davis.
After three and half years of legal jeopardy, Davis was now finally free of the threat of federal prosecution. He learned of his pardon while traveling in Europe and returned to the United States in October 1869. He once again became a president, although this time in the far less exalted position of president of a life insurance company in Memphis, Tennessee. When the company collapsed in the Panic of 1873, Davis explored other business options, none of which proved successful. Eventually, Sarah Dorsey, a wealthy widow in Biloxi, Mississippi, offered Davis a cottage on her estate, known as Beauvoir, where Davis worked on his memoirs. These were finally published in 1881 as a two-volume set, The Rise and Fall of the Confederate Government, in which Davis continued to assert the legitimacy of secession, although he downplayed the significance of slavery to the Confederate cause. Davis inherited Beauvoir upon Dorsey’s death in 1879, and he continued to live there until his own death in 1889.
Beauvoir remains as the most lasting monument to Jefferson Davis. It opened to tourists in 1941, and although severely damaged in Hurricane Katrina, it has since been restored. Nearby is a newly built Jefferson Davis Presidential Library and Museum.23 A statue of Jefferson Davis stands outside the library, which was constructed in part with $10 million from the Federal Emergency Management Agency.24
If using federal funds to build a library to commemorate Jefferson Davis seems anomalous, an even more striking incongruity can be found in the United States Capitol itself. Each state is allowed to honor two individuals with statues in the capitol; Davis is one of the two honorees from Mississippi, and the only honoree previously indicted for treason against the United States. In a perverse irony, the frozen features of Jefferson Davis thus continue to stare out over the halls of the very government he so ferociously attempted to overthrow.
In 1885, a young Theodore Roosevelt argued in a magazine article that the Civil War was the most important of all modern wars and “also the one in which the dividing lines between right and wrong were sharpest drawn. A Tory of 1776 had far more right on his side than had a Confederate of 1860.” Roosevelt also noted that Jefferson Davis “enjoys the unique distinction of being the only American with whose public character that of Benedict Arnold need not fear comparison.”25 Davis responded with a huffy letter to Roosevelt, complaining that the allegation was “libelous and false.”26 But Roosevelt was almost certainly correct. Both Arnold and Davis had indisputably committed treason and both did so after rising to among the highest positions in American government. Davis had been the United States secretary of war, and yet he waged war against his own country, resulting in hundreds of thousands of American deaths. Even Arnold’s treason did not have such pernicious consequences. A fair argument can be made that Jefferson Davis was the greatest traitor in American history.
The failure of the Johnson administration to convict Davis of treason, however, has somewhat removed the taint of treason from Davis’s historical legacy. Davis is rarely mentioned in the same breath as Benedict Arnold, and indeed to many people the suggestion would seem quite strange. But we are starting to grapple more honestly with the legacy of the Confederacy. As the statues of Jefferson Davis begin to be pulled down across the country, there could not be a better accompaniment than the enduring words of the “Battle Cry of Freedom”: “Down with the traitor, and up with the stars.”