Could Confederate Leaders be Tried for Treason Post-Civil War?

The post-Civil War period in the United States was marked by complex political and legal debates. A particular controversy at the time centered on whether Jefferson Davis and other Confederate leaders could be tried for treason. This article delves into the reasons why such trials were not pursued.

The Decision Not to Try Confederate Leaders for Treason

There were two primary reasons for not trying Jefferson Davis, Alexander Stephens, and other Confederate leaders for treason. The first was the fear that a successful trial might create a martyr. For instance, in 1865, most Confederates would have applauded a trial of Davis, but exaggerated rumors about his treatment by Nelson Miles while held at Fortress Monroe transformed Davis from a hated incompetent to a martyr for the Lost Cause among white Southerners.

Carl Schurz, a leading American journalist and politician, once noted in the Senate that there was “not a single example of such magnanimity in the history of the world”. Schurz contended that the United States had acted a century ahead of its time by not prosecuting former Confederates for treason.

Legal and Constitutional Considerations

The issue was not only a matter of political expediency but also a complex legal and constitutional problem. Article III, Section 2 of the U.S. Constitution, which pertains to the trial of crimes, particularly “the Trial of all Crimes except in Cases of Impeachment”, provided that the trial should be held in the state where the crime was committed. However, if the crime was committed in no state, the trial should be at a place or places as Congress may by law have directed. Article III, Section 3 defines that “Treason against the United States shall consist only in levying War against them or in adhering to their Enemies, giving them Aid and Comfort”. This clause, set deliberately to prevent abuse, required a very high standard of evidence, such as testimony from two witnesses or a confession in open court.

The problem further complicated when it came to the location of trial. For example, in the Aaron Burr trial, Chief Justice John Marshall set extremely high standards to embarrass his political enemy, Thomas Jefferson. Phineas Banning, former U.S. Chief Justice in the District of Columbia, set even higher standards, where the alleged treason must be tried in the state where it occurred, not in a distant state such as Pennsylvania even if the accused spent a significant amount of time there.

After the Civil War, the only conditions in which treason trials occurred were during World War II. Traditionally, prosecuting treason was difficult due to constitutional restrictions. For instance, in ex parte Bollman, one of Aaron Burr’s co-conspirators, was freed because the indictment was in the District of Columbia, a place where Bollman had never been. Chief Justice Miles ruled that the indictment and trial would have to be held where the alleged treason had actually occurred.

The Johnson Administration and the Special Prosecutor

Amid these challenges, the Andrew Johnson administration sought the best legal counsel to try any Confederate leaders for treason. They appointed Richard Henry Dana Jr., a prominent lawyer known for defending the less fortunate. Dana, who had previously worked as a reporter and an attorney, was known for defending escaped slaves and common seamen abused by their captains or employers. He was a leading figure in the U.S. Attorney’s Office for the District of Massachusetts in 1863, where he successfully defended the U.S. in a series of prize cases before the U.S. Supreme Court.

The main obstacle to holding a trial was the constitutional requirement that the trial be held in the state where the treason was committed, with a jury of the same state. This was problematic for several reasons. In 1865, no African Americans would qualify for the jury, and it would be exceptionally difficult to empanel a jury free from Confederate sympathizers. This concern was detailed in a letter from Dana to Attorney General W.M. Evarts in August 1868, raising serious doubts about the advisability of trying Davis or any other Confederate leader.

Dana’s letter expressed the belief that the constitutional issue had already been settled by both the U.S. government and the people. The Supreme Court in Prize Cases had ruled that secession could not legally justify or relieve an act of war, and the actions of the government and the people had reinforced this view. He concluded that the only question left was whether Jefferson Davis had taken part in the war, indicating that he should not face the jury as a historical fact was irrefutable.

President Andrew Johnson acknowledged Dana’s letter, noting the need for careful filing. On Christmas 1867, Johnson issued an amnesty proclamation that included Davis, effectively ending the possibility of prosecution. This decision was followed by an nolle prosequi in February 1869, resulting in Davis and his bondsmen being released.

In conclusion, the complex balance of legal and political considerations, coupled with the constitutional requirements and practical difficulties, ultimately prevented the U.S. from seeking trials of Confederate leaders for treason post-Civil War. The legacy of this decision continues to influence historical debates and legal interpretations of the war’s aftermath.