Secession on Trial: The Treason Prosecution of Jefferson Davis by Cynthia Nicoletti (review)

Jefferson Davis was, to borrow a phrase made popular in the last decade, too big to jail. And therein lies a very important story. Cynthia Nicoletti's Secession on Trial answers the question of why the president of the Confederate States of America, Jefferson Davis, was never prosecuted for treason after the Civil War. Though the United States began to prosecute Davis, the trial never materialized. Davis made clear that his defense was that Mississippi's secession ended the Union, so he committed no treason against his former country. In turn, United States officials felt they needed to ensure the legitimacy of the trial, and thus they proceeded with caution. There was concern over whether a jury selected from southern states would convict him. And the United States officials worried that Davis's argument about secession might carry the day.

Nicoletti went back to the prosecution and looked at it from all sides: those of the lawyers in the Department of Justice and the defense lawyers, as well as that of the political actors who worried that Davis might not be convicted (or in some cases maybe secretly wished he would not be). This case study of the nonprosecution of Davis has broad implications. Through Nicoletti's detailed reconstruction of the actors and their ideas and the constraints they faced through the legal system, we get a new appreciation of the limits of the U.S. legal system, of how constitutional ideas constrained postwar legal actors, and of the fragmented approaches to reunification after the Civil War. She invites questions such as, Did the legal system have the legitimacy and even the mechanism for addressing issues of secession and treason? Were civilian tribunals suited to settle legal, constitutional, and political issues that consumed hundreds of thousands of lives and freed millions, and left the nation significantly changed?

Secession on Trial is a beautifully written and capacious book, which represents a shift in legal history methods. Where so much work in recent years has turned to quantification and theories (such as talk of "performance," "bodies," and "boundaries"), this book tells a large and important story by looking deeply at the writings of lawyers, politicians, and jurists. Nicoletti returns to the grand narrative style of legal and constitutional history, but she fills out the narrative—and questions that generations of constitutional historians have struggled over, such as whether secession was "constitutional"—with a broad set of actors. We see the lawyers on both sides, members of Congress, and newspaper editors demanding prosecution—but this is in the context of a story about how legal doctrine and the realities of jury selection shaped the prosecution of Jefferson Davis.

Thus Nicoletti provides a 360-degree look at the question of secession, how some people hoped to get a court ruling holding secession unconstitutional through the trial of Jefferson Davis, and why such an attempt was both difficult to pull off and maybe not even desirable given what such a holding would do to other claims, such as the legitimacy of federal efforts at Reconstruction. It shows that if ideas concerning the constitutionality of secession were taken seriously—as Salmon Chase and many others began to do—some of the most antislavery actors in Congress would side, oddly, with Jefferson Davis. For the Radical Republicans like Thaddeus Stevens needed to show that secession was in fact legal—and thus the seceding states could be treated like conquered nations rather than states that were still part of the indissoluble Union. Who would have ever thought that Thaddeus Stevens would support Jefferson Davis? No one during the war. Yet Stevens did oppose the treason prosecution to support his larger agenda, about the power of the federal government over Reconstruction. And therein lies a story about the power of ideas. Ultimately, the practical difficulties of prosecution and the need for broad federal authority over Reconstruction, as well as the...