Asst. Regtl. Quartermaster Antietam 2021
- Sep 19, 2017
Many people who were in favor of monument removals in Richmond claim Lee and Davis committed treason. Davis filed to have the charges dismissed in Dec 1868, and it was rejected.This tells us he didn't want to go to trial. Obviously the government didn't either, once they realized they had bitten off more than they could chew. On the 25th came the Christmas pardons. Feb the prosecution finally dropped the charges. If Davis challenged it how does he know that this time he will not face a Military trial with people like David Hunter on it? Or why just tempt fate?So, help me to understand this. This is from the article: In 1868, the fate of Jefferson Davis's neck swung on Andrew Johnson's impeachment
The treason trial of Confederate President Jefferson Davis was supposed to be the "Greatest Trial of the Age" in 1868. But that title was claimed instead by the Senate impeachment trial of President Andrew Johnson... The two trials became so intertwined that Davis's prosecution was delayed for months. While "the man they denounce as a traitor goes free," the Louisville Courier noted, Johnson "is upon his trial for high crimes and misdemeanors." Moreover, Johnson's fate could have determined whether Davis would be hanged...The impeachment trial had ominous implications for Davis. If Johnson were removed from office, there was no vice president to succeed him. The speaker of the House was not made second in the line of succession until 1947, so the next in line for the presidency was the Senate president pro tempore, Sen. Benjamin Wade of Ohio, a leader of the Radical Republicans."Davis has been a sort of a white elephant to Johnson and the Chief Justice Chase. They have no desire to keep him, they have been puzzled how and where to try him, and they have been afraid to let him go," said the Springfield Register, a Massachusetts newspaper. "But President Wade will not stand upon technicalities or trifles. His first great card, in order to strike terror among the unreconstructed rebels in the South … will be the hanging of Jeff Davis."Johnson escaped conviction by one vote. Because the impeachment trial dragged on into May, the Davis trial had to be delayed again. The Davis lawyers then moved to quash his indictment, citing the recently passed 14th Amendment, which included a provision barring participants in the rebellion from holding public office. Thus, they argued, Davis had already been punished. In December, Chief Justice Chase voted to quash the indictment, but Judge Underwood disagreed. So the case was sent to the full U.S. Supreme Court.On Christmas 1868, lame-duck President Johnson made the case moot by issuing a general pardon for all participants in the rebellion, including Davis.
And as noted from this source:
The court finally heard preliminary motions in December 1868, when the defense asked for a dismissal claiming that the Fourteenth Amendment to the U.S. Constitution already punished Davis by preventing him from holding public office in the future and that further prosecution and punishment would violate the double jeopardy restriction of the Fifth Amendment. The court divided in its official opinion and certified the question to the United States Supreme Court. Fearing the court would rule in favor of Davis, Johnson released an amnesty proclamation on December 25, 1868, issuing a pardon to all persons who had participated in the rebellion.
So, if Davis was out to prove that secession was unconstitutional, then why did he file that his case should be dropped because he had already been punished, and punished enough? I think there is this myth that the Davis defense was all about secession and the Constitution; in fact, it looks like Davis was trying to get off on a technicality. Notably, this technicality was something of a creation of US government officials, but that's long story we can bypass for now.
The key thing is, Davis was not out to prove that once Mississippi seceded he was no longer a U.S. citizen. Simply put, the Davis defense was looking for the best way out. Davis didn't have to use that technicality. He could have litigated the case based on constitutional issues, and chose not to do so. The bottom line was to get Davis off... with a secession defense, if it could work... with a technicality, if that could work. And that explains the legal strategy they actually pursued. The defense was about the practical and mundane, not the ideological or quixotic.
I asked previously: is it possible that, after the government dropped its case, Davis could have filed a challenge to the pardon, thus forcing the pardon, and the legality of the treason charge, to be adjudicated? If that was an option, Davis did not pursue it. My guess is that with the Johnson pardon, Davis felt like he dodged a bullet. Or a hanging. And he was OK with that.
They had almost 4 years to try Davis, yet they didn't. With in months after the war they they tried and hung Henry Wirz. Did Davis not have the right to a speedy trial, everybody in the north wanted his head in a noose? Treason is a crime of loyalty. But to commit it one must be a U.S. citizen. Davis's best defense.
Davis had a really slick NY lawyer named Charles O'Conner. Who is to prosecute Davis? L H Chandler who wrote up the treason charges? Not even a fair lawyer. He took Aaron Burr's treason charges and just changed the name to Davis. Rather than chance a military trial with a new president in the white house, Davis got out while the getting was good.