Davis, O'Connor, and the Right of Self-Government
July 1, 2021 | View PDF
July is an important month in the American Republic. Long-standing traditions surrounding the 4th inspire many individuals to be thankful they are Americans. Holiday celebrations often include fireworks, flags, barbecues, and other activities.
After the 1776 Declaration of Independence and a bloody war, the colonies successfully seceded from the British Empire. At the war’s conclusion, the 1783 Treaty of Paris, defined the parties to the agreement: Great Britain on one side and thirteen “free, sovereign and independent states…” on the other. A confederation of distinct, independent States was created – not a nation.
Jefferson Davis was not generally considered to be an expert politician (such as Lincoln, who possessed cunning and a natural ability to manipulate matters as he felt necessary for his benefit). Davis was a man devoted to principle and to the tenets of the Declaration. He was a devotee of agrarianism and possessed full understanding of true federalism, State Sovereignty, and “government by consent.” Davis had an intellectual depth that Lincoln lacked.
After the South failed to gain its independence, much attention was focused on apprehending Davis, as the President of the Confederate States of America. Davis was captured near Irwinville, Georgia, May 10, 1865, by troops from the Fourth Michigan. He was sent to Fort Monroe, Virginia, where he was held in a damp casement and initially placed in leg irons. Davis faced torrid and often absurd accusations from the Northern press concerning leading a “rebellion,” authorizing mistreatment of Union prisoners, and plotting to assassinate Lincoln. Over time, outrage from the Northern public helped get the shackles off Davis and have him moved to a more humane environment. Davis was held captive for two years.
During his confinement, Davis repeatedly asked for a trial. He wanted the courts to validate the voluntary and consensual nature of government and the fact the sovereign States of the South did not commit treason. In creating the Confederate States of America, eleven Southern States called conventions and/or held popular votes to determine whether or not remaining in the old union was to their benefit—they decided it was not. (Virginia, Arkansas, Tennessee, and North Carolina left after Lincoln called for 75,000 troops to invade the original seven seceding States.)
The situation with Jefferson Davis caught the eye of renowned New York Attorney, Charles O’Connor, who knew a winning case when he saw one. There were numerous angles available to O’Connor in his defense of Davis. First of all, the recently “passed” Fourteenth Amendment (it is very likely this legislation was not legally passed) could be used to show that, by being disallowed from holding public office, Davis had already been punished. Also, since the Southern States voluntarily left the Union, Davis was not actually a U.S. citizen and could not have committed treason. Of course, had Lincoln been alive he would have disagreed. In his warped “soviet-styled” logic, Lincoln claimed the Southern States did not literally leave the Union (he claimed they were merely “out of their practical relationship”) and they had no right to self-determination without permission from the other States.
Another development involved the 1866 publication of Is Davis a Traitor? by Albert Taylor Bledsoe (perhaps food for a future article). Bledsoe was a respected lawyer, mathematics professor, Episcopalian priest (and later a Methodist minister), and ex-Confederate officer. In his book, he referenced the commentary of the Founders to show the federal government was a creature of the States and the union was formed under compact. The massive documentation in this book caused distress in federal government prosecutorial circles.
Yet another option for the defense of Davis involved Philadelphia Attorney William Rawle’s 1829 book, A View of the Constitution. This text was used for several years at West Point; in the book, Rawle stressed, “The Secession of a state from the union depends on the will of the people of such state.” The States possess ultimate sovereignty and it is up the people (and their representatives) of those States to decide which government they wish to be a part of.
After serving as U.S. Secretary of the Treasury under Lincoln, Salmon P. Chase served as the Chief Justice of the Supreme Court from December 15, 1864 through May 7, 1873. Chase was apprehensive about the entire Davis situation. (Chase allegedly passed the 14th Amendment defense option to O’Connor.) In correspondence with U.S. Secretary of War Edwin Stanton, Chase stated: “If you bring these leaders to trial. It will condemn the North, for by the Constitution, secession is not rebellion…His (Davis) capture was a mistake. His trial will be a greater one. We cannot convict him of treason.” Judge Franz Lieber (Lieber Code) concluded that “After studying more than 270,000
Confederate documents, seeking evidence against Davis, the court discouraged the War Department: ‘Davis will be found not guilty,’ and we shall stand there completely beaten.”
Jefferson Davis wanted a trial, he refused a pardon, and he said he would do it all over again. Davis was correct on every count--needless to say, the trial of Jefferson Davis never happened.
Sources: Is Davis a Traitor?, by Albert Taylor Bledsoe; The Long Surrender, by Burke Davis; A View of the Constitution, by William Rawle; Southern
Heritage411.com; Union At All Costs: From Confederation to Consolidation, by John M. Taylor.
EDITOR’S NOTE: We apologize as the very beginning of John Taylor’s article in the June issue was omitted. To read the complete article, please visit http://www.AlabamaGazette.com and download the June 2021 PDF.