Secession, Salmon Chase, and the Treason Trial of Jefferson Davis
Following the War Between the States (1861-65), Jefferson Davis, President of the defeated Confederate States of America, was imprisoned with a view to his being tried for treason on account of his leadership role in the South’s effort to make of itself an independent nation. Two years later, however, he was released and went into exile in Montreal (in Catholic Quebec) and then wandered in Europe before returning to these shores to spend his final days in his home state of Mississippi. His release came after a finding by the Chief Justice of the United States Supreme Court, Salmon P. Chase, that there was nothing in the U.S. Constitution that prohibited the secession of states. If secession was not illegal, neither Davis nor any other Confederate leaders could be guilty of treason. [Emphasis added]
Despite my dim knowledge of Civil War history, I found the bolded passage rather odd, since even I knew that Chief Justice Chase was not a Confederate sympathizer. In fact, Chase was a (Radical) Republican who’d been Lincoln’s Treasury Secretary prior to serving on the Supreme Court. Add in the considerable effort expended by Union men in denying the propriety of southern secession, and it seemed mighty peculiar that a Supreme Court justice would publicly endorse secession’s constitutionality so soon after the Civil War.
It turns out my initial suspicion was correct: about the only things the aforementioned account gets right are the fact that 1) Davis was imprisoned; 2) the Johnson administration did attempt to try him for treason; and 3) Davis was eventually released.
Among the things it gets wrong:
- There were several hurdles to a treason trial of Jefferson Davis. First, northern public opinion was divided regarding the prosecution of “arch traitors”. Some supported such prosecutions, while others preferred a policy of leniency. Second, trying Davis for treason carried the potential for adverse political consequences. A “not guilty” verdict would embarrass the government; while a finding of guilt would make a martyr of Davis while stoking southern resentment. Third, there were practical obstacles to conducting a jury trial of Davis in war-torn Virginia.
- Lingering uncertainty regarding the constitutionality of secession was actually cited as a reason why Davis should be tried. Northerners who opposed secession hoped that a successful conviction of Davis would establish a judicial precedent discrediting secession’s constitutionality. Similarly, Davis wanted to be tried, since he hoped to use the proceedings “as a platform to vindicate the rightness of the path he had chosen in 1861;” had his case gone to trial, his defense lawyers had planned to “capitalize on the position that Davis had acted constitutionally when he left the Union.”
- Although a writ of habeas corpus did secure Davis’s release from military detention, this merely transferred him from military to civilian custody. His release from the latter was effected not by a judicial ruling regarding secession, but rather via payment of bail.
- Chase did oppose Davis’s trial, both privately and in his official capacity as Chief Justice, but not because he endorsed Davis’s take on the legality of secession. Privately, he agreed with those in the north who favored leniency for former rebels. Publicly, as one of the presiding judges in Davis’s trial, Chase also favored ending the proceedings. His reason for doing so, however, turned not upon the question of secession, but rather on his interpretation of the Fourteenth Amendment’s third section. This provision, which barred former Confederates like Davis from holding public office (absent approval by two-thirds of Congress), was viewed by Chase as imposing a “punishment” for treason. That being the case, a treason trial of Davis would violate the Fifth Amendment’s prohibition upon Double Jeopardy, since it would seek to punish him again for the same offense. (Similarly, when seeking to have the treason indictment dismissed, Davis’s lawyers didn’t raise the constitutionality of secession as a defense. Rather, they focused on the Fourteenth Amendment, along with general considerations of justice.)
- Chase’s opinion wasn’t what ended Davis’s treason trial. Rather, since he and the other presiding judge disagreed regarding whether or not Sec. 3 imposed a “punishment” or a “disqualification”, the case was certified to the Supreme Court. Before that tribunal could act, outgoing President Johnson granted a full pardon to all Confederates for the “offence of treason.” Although Reconstruction politics kept the prosecution alive for a few more months, eventually the indictment against Davis was dismissed. It was Johnson’s pardon proclamation therefore, that (effectively) ended the prosecution of Davis.
- Finally, later that year Chase addressed the constitutionality of unilateral secession, when he authored the Supreme Court’s opinion in Texas v. White. Money quote: “The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.”
 My search also left me with “The Bonnie Blue Flag” running through my head for much of that afternoon, thanks to this page.
 See C. Ellen Connally, The Use of the Fourteenth Amendment By Salmon P. Chase in the Trial of Jefferson Davis, 42 ARKON L. REV. 1165, 1169 (2009), available at
(describing Chase as the “sole voice of the Radical Republicans in Lincoln’s cabinet….”).
 JAMES MCPHERSON, BATTLE CRY OF FREEDOM 260 (1988).
 See, e.g., Michael Stokes Paulsen, Is West Virginia Unconstitutional?, 90 CAL. L. REV. 291, 302-311 (2002) (discussing Lincoln’s argument that secession was unconstitutional). For a Congressional perspective, see CONG. GLOBE. 36th Cong. 2nd Sess. 404-405 (statement of Sen. Simmons); also id. at 224-229 (statement of Sen. Baker).
 Connally, supra note 3, at 1182 (noting Edwin Stanton’s support for trying Davis); also WILLIAM BLAIR, WHY DIDN’T THE NORTH HANG SOME REBELS?: THE POSTWAR DEBATE OVER PUNISHMENT FOR TREASON 8-11 (2004) (discussing northern public support for treason trials of Confederate civil & military leaders); also id. at 19-20 (discussing Sen. Jacob Howard’s strong support for such trials).
 Connally, supra note 3, at 1171 (discussing Lincoln’s preference for leniency towards former rebels); also BLAIR, supra note 6, at 24 (discussing Horace Greeley’s shift in favor of clemency for former Confederates); also id. at 26-27 (discussing abolitionist Gerritt Smith’s opposition to trying Davis).
 Connally, supra note 3, at 1179; also BLAIR, supra note 6, at 31.
 Virginia was chosen by Attorney General Speed, since that was where Davis allegedly committed treason (while participating in the Confederate government in Richmond). See BLAIR, supra note 6, at 18. As for practical obstacles, Blair notes that, in Virginia,
Legal authority was still tentative and civil order was still being restored. District Courts had not been sitting in the former Confederates states [sic] and did not appear to be ready to begin in the near future. Even if they did resume fairly quickly, officials understood that it would be well nigh impossible to put together a jury of twelve individuals who returned a guilty verdict. As in murder trials, the jury in treason cases had to reach a unanimous decision, allowing Davis to go free if only one person dissented.
Id. See also JAMES G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 114-115 (1926) (discussing special counsel Richard Henry Dana’s concern that a southern jury might embarrass the government by failing to convict Davis of treason).
 See BLAIR, supra note 6, at 24 (“At first, [Horace] Greeley had been in favor of a treason trial [of Davis] in order to clarify the issue of state sovereignty and secession.”); also id. at 28 (discussing a similar rationale underlying A.B. Brown’s support of a treason trial). But see also id. at 7 (“Although a significant proportion of northerners believed that secession was wrong and ran against the intentions of the Founders, they did not think that case was solid enough to guarantee the successful prosecution of Confederates in civil courts.”).
 Connally, supra note 3, at 1174 n.70 (citing DONALD E. COLLINS, THE DEATH AND RESURRECTION OF JEFFERSON DAVIS 19 (2005)).
 See BLAIR, supra note 6, at 30. To avoid this difficulty, as well as the possibility of acquittal by a jury of sympathetic southern civilians, Maj. Gen. Benjamin Butler had previously proposed trying Davis via military commission. See BENJAMIN F. BUTLER, BUTLER’S BOOK: A REVIEW OF HIS LEGAL, POLITICAL, AND MILITARY CAREER 915-918 (1892).
 Case of Davis, 7 F. Cas. 63, 75-76 (C.C.D. Va. 1867).
 Id. at 78; see also Connally, supra note 3, at 1193.
 Indeed, prior to Davis’s trial, Chase had ruled that North Carolina’s ordinance of secession & admission to the Confederacy “did not effect, even for a moment, the separation of North Carolina from the Union….” See Shortridge v. Macon, 22 F. Cas. 20, 21 (C.C.D. N.C. 1867). Though this statement does not formally condemn the constitutionality of secession, it does hint at such a position. It also accorded with mainstream Republican doctrine regarding the legal status of various Confederate states during the Civil War. See John Harrison, The Lawfulness of the Reconstruction Amendments, 68 U. CHI. L. REV. 375, 391-392 (discussing Rep. Samuel Shellaberger’s theory that, although ordinances of secession did not remove states from the Union, they did, effectively, destroy the antebellum governments of those states – thereby disrupting relations between said states and the rest of the Union, and necessitating the restoration of said relations via Reconstruction); also id. at 391 n.88 (discussing how Shellaberger’s thesis gained mainstream acceptance among Republicans).
 Connally, supra note 3, at 1185
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 or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
U.S. Const. amend XIV, § 3.
 Case of Davis, 7 F. Cas. 63, 102 (C.C.D. Va. 1867) (“THE CHIEF JUSTICE instructed the reporter to record him as having been of the opinion…that the indictment should be quashed, and all further proceedings barred by effect of the fourteenth amendment to the constitution of the United States”); also Connally, supra note 3, at 1166-1167, 1196-1198.
 The closest they came was Charles O’Conor’s argument that, since the Confederacy had exercised de facto authority over its claimed territory prior to its downfall, it was unjust to charge inhabitants of that territory with treason for acts done in support of the Confederate government during that time. See Case of Davis, 7 F. Cas. 63, 99-100 (C.C.D. Va. 1867). Though Davis’s indictment was ultimately dismissed, US courts rejected the argument that the Confederacy had been a de facto government. See, e.g., Williams v. Bruffy, 96 U.S. 176 (1877) (“The Confederate States was an illegal organization, within the provision of the Constitution of the United States prohibiting any treaty, alliance, or confederation of one state with another, whatever efficacy, therefore, its enactments possessed in any state entering into that organization must be attributed to the sanction given to them by that state.”); also id. at 177 (“Whatever de facto character may be ascribed to [the Confederate government] consists solely in the fact that for nearly four years it maintained a contest with the United States and exercised dominion over a large extent of territory. Whilst it existed, it was simply the military representative of the insurrection against the authority of the United States; when its military forces were overthrown, it utterly perished, and with it all its enactments.”); also Keppel v. Petersburg Railroad Co. 14 F. Cas. 357 (C.C.D. Va. 1868) (“The Confederate government can not be regarded as a de facto government in any such sense, that its acts are entitled to judicial recognition as valid.”). Thorington v. Smith, 75 U.S. 1 (1868), did uphold the validity of contracts specifying payment in Confederate currency, but only on the grounds that said currency had been “imposed on the community by irresistible force”. Id. at 11. Similarly, Ford v. Surget, 97 U.S. 594 (1878) upheld immunity for a person who executed a Confederate order to burn cotton, by noting that the defendant “acted under duress or compulsion” in obeying this order; and by analogizing the defendant to Confederate soldiers (to which the United States had granted combatant immunity). Id. at 607.
 Case of Davis, 7 F. Cas. 63, 90-91, 98-99 (C.C.D. Va. 1867).
 Id. at 99-102.
 Proclamation No. 15, 15 Stat. 711 (Dec. 25, 1868).
 RANDALL, supra note 9, at 116-117.
 Case of Davis, 7 F. Cas. 63, 102 (C.C.D. Va. 1867); also Connally, supra note 3, at 1198-1199.
 Texas v. White, 74 U.S. 700 (1868).
 Id. at 725.