Was Secession Legal?

After Civil War, U.S. Feared That a Court Might Undercut the Conflict's Outcome, Professor Cynthia Nicoletti Contends in New Book
Secession on Trial

Legal historian Cynthia Nicoletti’s new book says failing to try and execute Confederate President Jefferson Davis for treason left questions about secession’s legality.

October 16, 2017

Why wasn’t Confederate President Jefferson Davis ever tried for treason? According to a new book, it’s because the Union thought there was a strong possibility that his case would raise troubling questions about the constitutionality of secession, and that a possible acquittal would signal that the Union’s war effort had been unjustified.

Cynthia Nicoletti, a legal history professor at the University of Virginia School of Law, looks at the quandary in “Secession on Trial: The Treason Prosecution of Jefferson Davis,” published this month by Cambridge University Press.

Davis’ trial, which would have served as a test case for the legality of secession, was delayed for four years before ultimately being dropped. Among government officials, there was concern that the prosecution could backfire.

In the abstract, it wouldn’t have been hard to prove that Davis committed treason.

“Treason in the Constitution is levying war against the United States,” Nicoletti said. “It was incredibly easy for them to prove that Davis levied war against the U.S.; that was his job.”

But, she said, that all changes if Davis wasn’t a U.S. citizen at the time he did so. Many in the South, and even some in the North, believed states had the right to leave a union they voluntarily joined.

“Davis’ argument would go: ‘When my state, Mississippi, seceded from the Union in 1861, that removed my United States citizenship,’” Nicoletti said. “And treason is a crime of loyalty; in order to commit it, you need to be a U.S. citizen. So everybody thought at the time that this case was going to raise the question of whether secession is constitutional, and there was worry about whether or not Davis was going to be convicted.”

Official acts by the Union preceding and during the war, such as allowing for prisoner swaps and observing other rights of foreign governments under the law of nations, might have been used to bolster the argument for secession’s legitimacy.

Nicoletti said the Union had decided against a military trial for Davis, which most certainly would have led to a swift verdict against him, resulting in his execution.

But Union leaders didn’t wish to appear to strong-arm the outcome with further military force, she said. They wanted the appearance of just deliberation and an outcome that a divided country could perhaps better accept — one based firmly in the Constitution’s right to due process.

So it was decided that Davis would be tried in a regularly constituted civil court, in the place where he committed the crime.

“It turns out he committed his crime at his desk in Richmond, the capital of the Confederacy,” she said. “And prosecutors were worried they couldn’t get a jury in Richmond to convict him.”

A trial there would have given African-Americans one of the first opportunities to serve on a jury. However, there was no guarantee that residents with Confederate sympathies wouldn’t be part of the pool, even though serving required an oath of loyalty to the nation. Or that the average juror wouldn’t be convinced that secession was legal.

“Initially, the government thought, ‘We need to try him, because that will cement Union victory in the Civil War, so we’ll have something to prove the righteousness of the Union cause beyond the battlefield,’” Nicoletti said. “What happened very quickly was that the government realized, ‘Oh no, he could also be acquitted.’”

She pointed out that it would have taken only one juror to derail a guilty verdict.

For his part, Davis’ attorney, Charles O’Conor, did an effective job of stoking that fear, Nicoletti said.

“His lawyer was a New Yorker and a Southern sympathizer,” she said. “He was the main strategist. What I argue in the book is that he was actually equally worried that Davis was going to be convicted. He was worried that Davis could be hanged. But he basically bluffed. He said, ‘Yeah, I want you to try him, because I want secession to be declared legal, and I think we’re going to do it.’ He managed to raise all of these troubling possibilities.”

One of O’Conor’s main tools was the manipulation of public opinion. He collected the signatures of radical Republicans who supported the argument that secession was legal and planned to present them to the president and his Cabinet. He also coordinated the efforts of three authors who wrote books designed to stoke public sympathy for Davis and for the cause of secession.

“O’Conor engineered either the publication or the publicity for all three of those books. He was trying to create such a public atmosphere against trying Davis that the government would have no choice but to drop the case.”

Doubts about moving forward indeed led to multiple continuances.

“At every appearance O’Conor said, ‘We’re ready to try him,’ but once they were out of the courtroom, he would say, ‘I’m happy to agree to another continuance,’” Nicoletti said.  

She added, “I can give you a hundred reasons why Davis was not tried, but the main reason is that he had a good lawyer.”

In the end, although Davis was an unpopular figure throughout the country, creating a martyr out of him was still a possible outcome, and not much more could have been gained, Nicoletti said. Instead, a trial could have reversed the progress made in a still-healing nation. The government decided, “Maybe no outcome was the best outcome.”

Nicoletti said she was fascinated by the unresolved questions she explores in her book, and that her approach was different than she has seen from other historians.

“I tried to do day-by-day, as much as I could, to figure out what was going on in these lawyers’ practices,” she said. “How were they reacting and how were they strategizing?”

Throughout the process, she was determined not to take a definitive stance on the secession question.

“I don’t take a position,” she said. “It’s really important for me to treat it as a question that can go either way. I think that might be surprising to a reader, because today talking about the legality of secession seems so far-fetched, but I want to introduce them to the arguments on both sides. And there wasn’t a clear answer one way or another. This is a place where the Constitution is silent.”

The Supreme Court weighed in on the secession issue in Texas v. White in 1869, declaring it unconstitutional. The case had none of the complications of Davis’ case, and it was much easier for the court to address secession in that context. Still, Nicoletti pointed out, many Americans didn’t think that Texas v. White had completely — or fairly — resolved the issue.  It took another generation or two for the issue to fade from constitutional discourse.

Ultimately, she lets the reader decide how the canceled trial might have influenced history.

“I think it’s totally an open question of whether Davis would have been convicted,” Nicoletti said.

She said the issues involved are still relevant today, as people debate the idea that states such as California might have a right to leave the U.S. over disagreements about federal governance, or that the fight over the removal of Confederate monuments might have been less severe, perhaps even nonexistent, had Davis and his collaborators been executed.

You won’t find her taking sides in those debates, either. Only looking at the historical record.

Nicoletti, who earned her J.D. from Harvard Law School, also holds a B.A., M.A. and Ph.D. from the University of Virginia.

The book was written with the support of a William Nelson Cromwell Foundation Research Fellowship.

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