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"Had Abraham Lincoln lived, it is probable that Jefferson Davis would not have been pursued in his southern flight.[1] The assassination, however, changed the course of events. Investigation by the War Department convinced Secretary Stanton and the judge advocate general, Joseph Holt, that the murder had been committed with the knowledge and approval of Davis and some of the Confederate officials. Consequently a proclamation was issued offering a reward for the arrest of the Confederate president and an active pursuit resulted in his capture.[2]
"Sufficient reliable evidence to substantiate the murder charge was never found,[3] but President Johnson and his advisers neither withdrew the accusation nor set Davis at liberty. Instead, they conceived the idea of punishing him for treason, a purpose which, gradually transformed itself into a project for trying him in order that the highest courts might officially and finally declare secession to be treason. This decision, was made in Cabinet during July, 1865, when it was unanimously agreed to try him for treason rather than murder and the contention of Seward and Harlan for a military court was overruled in favor of civil process. Attorney General Speed in association with special counsel, William M. Evarts, John H. Clifford, and Lovell H. Rousseau, undertook to prepare the case. After a careful consideration of details they decided that the trial must take place before the United States Circuit Court in the Virginia district, where Davis in person, as commander-in-chief of the Confederate forces, actually had levied war against the United States. Thus they discarded the plan, advocated by some, of trying him in one of the Northern states on the theory that he had been "constructively" present when his subordinates had invaded Northern territory. Their decision raised the question which those who advocated the "constructive presence" theory had wished to avoid, namely, could a jury be procured in Virginia or any state of the late Confederacy which would find Davis guilty?
"But this was not the only difficulty. The circuit in which the district of Virginia was situated was presided over by Chief Justice Salmon P. Chase of the United States Supreme Court. He with the district judge, John C. Underwood, would sit as trial judges. One reason why Virginia had been chosen as the place was the fact that, as Chase presided there, the weight of his official position and prestige would give the greatest judicial authority possible to the proceedings.[4] But when approached by the President Chase declined to appear in the Circuit Court until pace should be declared, feeling it to be beneath the dignity of justices of the Supreme Court to go into the war area until all possibility of military interference with civil court processes was removed; he advised Johnson that Congressional legislation was necessary.[5] Nevertheless Chase felt it to be proper for the district judge to hold the Circuit Court in his absence.[6] Speed did not think that Underwood was a suitable judge before whom to try Davis,[7] so Chase's refusal and the jury difficulty postponed action until conditions should become more settled. In the meantime Davis was kept in confinement at Fort Monroe, isolated even from his family, and all requests of counsel for communication with him were ignored or refused.[8]
"In April, 1866, immediately after the President's proclamation of partial peace, Attorney General Speed thought the time ripe for action, took up the case, and called the associate counsel to Washington.[9] By this time, Clifford had become convinced that with conditions as they were the government could not possibly convict without filling the jury-box from a hand-picked panel, while a failure to secure a verdict would place the government in the position of having fought a successful war only to have it virtually declared unlawful by a Virginia jury.[10] Chase also hindered proceedings by refusing to sit as long as certain minor military processes were being carried on in spite of the President's proclamation but with Johnson's approval.[11]
"Clifford's opinion and Chase's refusal made another delay necessary, although Underwood attempted to advance matters by causing his grand jury to find an indictment against Davis for treason.[12] Because of the views of Clifford and Chase it appears that Johnson and perhaps Speed were not averse to granting release on bail until the trial might take place, but politics intervened to prevent this. The radicals, were warring against Johnson and they hoped to make capital out of the Davis case. There was a widespread popular feeling that Davis should be punished as an example to traitors; and as the government had never withdrawn the charge of complicity in the assassination, many still believed him guilty of that crime. This belief was shared by a number of Congressmen and a Congressional committee was at work on an investigation of the charge. Testimony was in process of being gathered and the investigators were determined that Davis should not be released until they had come to some conclusion. Therefore the radical group, under the lead of George S. Boutwell, put a resolution of protest through the House and persuaded Underwood that it was an inopportune time to grant bail. The district judge consequently refused counsel's petition and Davis remained in Fort Monroe.[13]"
[1] Hugh McCulloch, Men and Measures of Half a Century (New York, 1888), p. 408; J. W. Schuckers, Salmon P. Chase (New York, 1874), p. 535; Edward A. Pollard, Life of Jefferson Davis with a Secret History of the Southern Confederacy (Philadelphia, 1869), p. 526; Varina H. Davis, Memoir of Jefferson Davis (New York, 1890), II, 696; record of conversation between Lincoln and General Sherman supplied by Dr. W. W. Folwell through the kindness of Jeannette P. Nichols.
[2] Proclamation of May 2, 1865; War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies (hereafter cited as O.R., with the serial-volume numbers), vol. 100, pp. 310, 318; vol. 104, pp. 452, 483-484, 486; vol. 121, pp. 847-867, 976-978; Gideon Welles, Diary, II, 299-300; Stanton to Holt, May 2, 1865 in Stanton's Letter-Book, Library of Congress (hereafter cited as L. of C.); New York Herald, April 16, 25, 1865; Century, V. 130-145, XVII. 586-596.
[3] Some testimony to this effect was supplied by witnesses in the trial of the assassination conspirators, but it was not sufficient to warrant a trial although the judge advocate general, Holt, was firmly convinced that Davis's guilt was sure. He began a search which brought to light a peculiarly talented charlatan, Charles A. Dunham, alias Sanford Conover, alias James Watson Wallace. He brought a group of witnesses to Holt who showed rather convincingly that Davis was guilty. These witnesses were not prepossessing and did not inspire confidence when examined by Seward and Johnson. Therefore, nothing was done. Congress finally investigated, Apr.-June, 1866, and it was there that the whole testimony brought in by Dunham et al. was found to be a hoax. The best account of this affair is found in O. R., vol. 121, pp. 847-867, 890, 921, 931-945, 962-965, 973, 976-978, and in David M. DeWitt, Assassination of President Lincoln, pp. 168, 171, 173-174, 180-181, and same author, Impeachment and Trial of Andrew Johnson, pp. 138-142, 153-156, 278-281 and n.; Holt MSS. In L. Of C.; Southern Historical Society Papers, IX. 313-325.
[4] Welles, Diary, II. 335, 337, 365, 608; House Report 7, 40 Cong., I sess. (Ser. 1314) (hereafter cited as Ser. 1314), testimony of Stanton, p. 397, testimony of Seward, pp. 379-382, testimony of Speed, pp. 798-804.
[5] In pursuance of Chase's recommendation, Johnson asked Congress to pass legislation. Several bills were introduced to remove some technical difficulties (Senate Bills 34 and 103), but nothing was accomplished. Congress contented itself with making demands for information and finally conducting an investigation. Congressional Globe, 39 Cong., I sess., pp. 67, 70, 100, 108, 115, 171-172,
[6] Robert B. Warden, Salmon P. Chase (Cincinnati, 1874), p. 645; Schuckers, Chase, p. 535; Ser. 1314, pp. 502-512, 798-804; 39 Cong., I sess., Sen. Ex. Doc. 19; O. R., vol. 121, pp. 715-716; Welles, Diary, II, 368.
[7] Ser. 1314, pp. 798-799; Underwood had been a New York politician of Tammany Hall who had married a Virginia lady. He had lived in Virginia for a while before the war, but had made himself unpopular by attempting to preach abolition doctrines. He had joined the Republican party and had taken part in the campaigns of 1856 and 1860. When Lincoln in order to maintain the fiction of a loyal Virginia government recognized the Peirpoint regime, he appointed Underwood district judge. The latter was not well fitted for such office, because of his temperamental partisanship and his hatred of Virginians. Speed knew this and realized that a trial before him was likely to be disgraced by partisan irregularities; New York World, Dec. 6, 1867.
[8] Dunbar Rowland, Jefferson Davis, Constitutionalist (Jackson, Miss., 1923) (hereafter cited as Davis's Works), VII, 26-38, 62, 77; O. R., vol. 121, pp. 563-986 passim; Varina H. Davis, Memoir of Davis, II. 708-768; John J. Craven, Prison Life of Jefferson Davis (New York, 1866), passim.
[9] Speed to Evarts and Clifford, Apr. 6, 1866, Attorney General's Letter-Book E, p. 471.
[10] Clifford to Evarts, May 28, 1866, Evarts MSS.; this letter and a number of others were made available to me through the kindness of Allen W. Evarts, Esq.
[11] Greeley to Chase, May 4, June 3, 1866. Chase to Greeley, June 1, 1866, Chase MSS. (Pa. Hist. Soc.); Greeley to Chase, May 31, 1866, Annual Report of the American Historical Association for 1902, II. 514; Chase to Greeley, June 5, 1866, Chase to Nettie Chase, Apr. 16, May 14, 1866, Chase MSS. (L. Of C.).
[12] Underwood suddenly informed Chandler, the district attorney, of his desire for an indictment and the latter had only three hours to put together hastily a short and inadequate document, Ser. 1314, pp. 502-512; for the text of the indictment and the efforts of Davis's counsel to obtain action under it see Bradley T. Johnson, Reports of Cases decided by Chief Justice Chase in the Circuit Court of the United States for the 4th Circuit, 1865-1869 (New York, 1876). As that part of the above relating to Davis is found in more convenient form reprinted in Davis's Works, VII. 138-227, citations will be made from the latter edition.
[13] McCulloch, Men and Measures, pp. 408-409; Davis, Memoir of Davis, II. 769-770; Davis's Works, VII, 156-159; Harrison to Phillips, June 27, 1866, Phillips MSS. (L. Of C.); Fairfax Harrison, Aris Sonis Focisque (n. P., 1910), p. 196; Publications of Mississippi Historical Society, VIII. 81; W. W. Glenn to Harrison, May 30, 1866, Burton Harrison MSS, (L. Of C.); Hon. F. B. Harrison not only gave the author permission to use these papers but also sent over others from Scotland for this purpose.
[Roy F. Nichols, "The United States vs. Jefferson Davis," _The American Historical Review,_ Vol XXXI, No. 2, January, 1926]
"Sufficient reliable evidence to substantiate the murder charge was never found,[3] but President Johnson and his advisers neither withdrew the accusation nor set Davis at liberty. Instead, they conceived the idea of punishing him for treason, a purpose which, gradually transformed itself into a project for trying him in order that the highest courts might officially and finally declare secession to be treason. This decision, was made in Cabinet during July, 1865, when it was unanimously agreed to try him for treason rather than murder and the contention of Seward and Harlan for a military court was overruled in favor of civil process. Attorney General Speed in association with special counsel, William M. Evarts, John H. Clifford, and Lovell H. Rousseau, undertook to prepare the case. After a careful consideration of details they decided that the trial must take place before the United States Circuit Court in the Virginia district, where Davis in person, as commander-in-chief of the Confederate forces, actually had levied war against the United States. Thus they discarded the plan, advocated by some, of trying him in one of the Northern states on the theory that he had been "constructively" present when his subordinates had invaded Northern territory. Their decision raised the question which those who advocated the "constructive presence" theory had wished to avoid, namely, could a jury be procured in Virginia or any state of the late Confederacy which would find Davis guilty?
"But this was not the only difficulty. The circuit in which the district of Virginia was situated was presided over by Chief Justice Salmon P. Chase of the United States Supreme Court. He with the district judge, John C. Underwood, would sit as trial judges. One reason why Virginia had been chosen as the place was the fact that, as Chase presided there, the weight of his official position and prestige would give the greatest judicial authority possible to the proceedings.[4] But when approached by the President Chase declined to appear in the Circuit Court until pace should be declared, feeling it to be beneath the dignity of justices of the Supreme Court to go into the war area until all possibility of military interference with civil court processes was removed; he advised Johnson that Congressional legislation was necessary.[5] Nevertheless Chase felt it to be proper for the district judge to hold the Circuit Court in his absence.[6] Speed did not think that Underwood was a suitable judge before whom to try Davis,[7] so Chase's refusal and the jury difficulty postponed action until conditions should become more settled. In the meantime Davis was kept in confinement at Fort Monroe, isolated even from his family, and all requests of counsel for communication with him were ignored or refused.[8]
"In April, 1866, immediately after the President's proclamation of partial peace, Attorney General Speed thought the time ripe for action, took up the case, and called the associate counsel to Washington.[9] By this time, Clifford had become convinced that with conditions as they were the government could not possibly convict without filling the jury-box from a hand-picked panel, while a failure to secure a verdict would place the government in the position of having fought a successful war only to have it virtually declared unlawful by a Virginia jury.[10] Chase also hindered proceedings by refusing to sit as long as certain minor military processes were being carried on in spite of the President's proclamation but with Johnson's approval.[11]
"Clifford's opinion and Chase's refusal made another delay necessary, although Underwood attempted to advance matters by causing his grand jury to find an indictment against Davis for treason.[12] Because of the views of Clifford and Chase it appears that Johnson and perhaps Speed were not averse to granting release on bail until the trial might take place, but politics intervened to prevent this. The radicals, were warring against Johnson and they hoped to make capital out of the Davis case. There was a widespread popular feeling that Davis should be punished as an example to traitors; and as the government had never withdrawn the charge of complicity in the assassination, many still believed him guilty of that crime. This belief was shared by a number of Congressmen and a Congressional committee was at work on an investigation of the charge. Testimony was in process of being gathered and the investigators were determined that Davis should not be released until they had come to some conclusion. Therefore the radical group, under the lead of George S. Boutwell, put a resolution of protest through the House and persuaded Underwood that it was an inopportune time to grant bail. The district judge consequently refused counsel's petition and Davis remained in Fort Monroe.[13]"
[1] Hugh McCulloch, Men and Measures of Half a Century (New York, 1888), p. 408; J. W. Schuckers, Salmon P. Chase (New York, 1874), p. 535; Edward A. Pollard, Life of Jefferson Davis with a Secret History of the Southern Confederacy (Philadelphia, 1869), p. 526; Varina H. Davis, Memoir of Jefferson Davis (New York, 1890), II, 696; record of conversation between Lincoln and General Sherman supplied by Dr. W. W. Folwell through the kindness of Jeannette P. Nichols.
[2] Proclamation of May 2, 1865; War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies (hereafter cited as O.R., with the serial-volume numbers), vol. 100, pp. 310, 318; vol. 104, pp. 452, 483-484, 486; vol. 121, pp. 847-867, 976-978; Gideon Welles, Diary, II, 299-300; Stanton to Holt, May 2, 1865 in Stanton's Letter-Book, Library of Congress (hereafter cited as L. of C.); New York Herald, April 16, 25, 1865; Century, V. 130-145, XVII. 586-596.
[3] Some testimony to this effect was supplied by witnesses in the trial of the assassination conspirators, but it was not sufficient to warrant a trial although the judge advocate general, Holt, was firmly convinced that Davis's guilt was sure. He began a search which brought to light a peculiarly talented charlatan, Charles A. Dunham, alias Sanford Conover, alias James Watson Wallace. He brought a group of witnesses to Holt who showed rather convincingly that Davis was guilty. These witnesses were not prepossessing and did not inspire confidence when examined by Seward and Johnson. Therefore, nothing was done. Congress finally investigated, Apr.-June, 1866, and it was there that the whole testimony brought in by Dunham et al. was found to be a hoax. The best account of this affair is found in O. R., vol. 121, pp. 847-867, 890, 921, 931-945, 962-965, 973, 976-978, and in David M. DeWitt, Assassination of President Lincoln, pp. 168, 171, 173-174, 180-181, and same author, Impeachment and Trial of Andrew Johnson, pp. 138-142, 153-156, 278-281 and n.; Holt MSS. In L. Of C.; Southern Historical Society Papers, IX. 313-325.
[4] Welles, Diary, II. 335, 337, 365, 608; House Report 7, 40 Cong., I sess. (Ser. 1314) (hereafter cited as Ser. 1314), testimony of Stanton, p. 397, testimony of Seward, pp. 379-382, testimony of Speed, pp. 798-804.
[5] In pursuance of Chase's recommendation, Johnson asked Congress to pass legislation. Several bills were introduced to remove some technical difficulties (Senate Bills 34 and 103), but nothing was accomplished. Congress contented itself with making demands for information and finally conducting an investigation. Congressional Globe, 39 Cong., I sess., pp. 67, 70, 100, 108, 115, 171-172,
[6] Robert B. Warden, Salmon P. Chase (Cincinnati, 1874), p. 645; Schuckers, Chase, p. 535; Ser. 1314, pp. 502-512, 798-804; 39 Cong., I sess., Sen. Ex. Doc. 19; O. R., vol. 121, pp. 715-716; Welles, Diary, II, 368.
[7] Ser. 1314, pp. 798-799; Underwood had been a New York politician of Tammany Hall who had married a Virginia lady. He had lived in Virginia for a while before the war, but had made himself unpopular by attempting to preach abolition doctrines. He had joined the Republican party and had taken part in the campaigns of 1856 and 1860. When Lincoln in order to maintain the fiction of a loyal Virginia government recognized the Peirpoint regime, he appointed Underwood district judge. The latter was not well fitted for such office, because of his temperamental partisanship and his hatred of Virginians. Speed knew this and realized that a trial before him was likely to be disgraced by partisan irregularities; New York World, Dec. 6, 1867.
[8] Dunbar Rowland, Jefferson Davis, Constitutionalist (Jackson, Miss., 1923) (hereafter cited as Davis's Works), VII, 26-38, 62, 77; O. R., vol. 121, pp. 563-986 passim; Varina H. Davis, Memoir of Davis, II. 708-768; John J. Craven, Prison Life of Jefferson Davis (New York, 1866), passim.
[9] Speed to Evarts and Clifford, Apr. 6, 1866, Attorney General's Letter-Book E, p. 471.
[10] Clifford to Evarts, May 28, 1866, Evarts MSS.; this letter and a number of others were made available to me through the kindness of Allen W. Evarts, Esq.
[11] Greeley to Chase, May 4, June 3, 1866. Chase to Greeley, June 1, 1866, Chase MSS. (Pa. Hist. Soc.); Greeley to Chase, May 31, 1866, Annual Report of the American Historical Association for 1902, II. 514; Chase to Greeley, June 5, 1866, Chase to Nettie Chase, Apr. 16, May 14, 1866, Chase MSS. (L. Of C.).
[12] Underwood suddenly informed Chandler, the district attorney, of his desire for an indictment and the latter had only three hours to put together hastily a short and inadequate document, Ser. 1314, pp. 502-512; for the text of the indictment and the efforts of Davis's counsel to obtain action under it see Bradley T. Johnson, Reports of Cases decided by Chief Justice Chase in the Circuit Court of the United States for the 4th Circuit, 1865-1869 (New York, 1876). As that part of the above relating to Davis is found in more convenient form reprinted in Davis's Works, VII. 138-227, citations will be made from the latter edition.
[13] McCulloch, Men and Measures, pp. 408-409; Davis, Memoir of Davis, II. 769-770; Davis's Works, VII, 156-159; Harrison to Phillips, June 27, 1866, Phillips MSS. (L. Of C.); Fairfax Harrison, Aris Sonis Focisque (n. P., 1910), p. 196; Publications of Mississippi Historical Society, VIII. 81; W. W. Glenn to Harrison, May 30, 1866, Burton Harrison MSS, (L. Of C.); Hon. F. B. Harrison not only gave the author permission to use these papers but also sent over others from Scotland for this purpose.
[Roy F. Nichols, "The United States vs. Jefferson Davis," _The American Historical Review,_ Vol XXXI, No. 2, January, 1926]
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