The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A few weeks ago, I opened up Professor Cynthia Nicoletti's recent book, Secession on Trial: The Treason Trial of Jefferson Davis. I didn't expect that I'd spend the next few weeks fiercely poring through it, but I've found myself unable to put it down or stop thinking about it.
The book tells the story of the federal government's attempt to prosecute Jefferson Davis, the former president of the so-called Confederate States of America, after the end of the Civil War. (If, like me, you found yourself thinking, "huh, I didn't even know that there was a treason trial of Jefferson Davis," I will spoil the ending—the trial never comes, and Davis receives the benefit of the general amnesty from President Johnson.)
Nicoletti argues that at the time, the legality of secession was far less settled by the war than we like to think. If secession was lawful, Jefferson Davis might no longer have been a citizen of the United States subject to the U.S. law of treason, and the threat of that defense—and the possibility that it might succeed in front of a jury—kept the federal prosecutors quite nervous about pressing the issue. That, among other things, is how Davis's lawyers managed to run out the clock until the amnesty.
But the book is packed with so many other interesting tidbits and legal arguments that I suspect it will be a delight for many people interested in constitutional law or criminal procedure. The defense succeeded only because of the intersection of these uncertain questions of high theory with the ordinary stuff of criminal practice—securing continuances, negotiating bail, trying to get hints about the particular preferences of the trial judge, litigating procedural technicalities. Among other things, we get surprise appearances from: the appellate jurisdiction of the Supreme Court; the law of criminal venue; early lectures on what we now call "professional responsibility" by George Sharswood; Section Three of the Fourteenth Amendment; and much more.
Secession on Trial is also just a delight to read. I cannot think of the last time that I read a work of legal history that was so rich with interesting legal argument since David Currie died. In any event, here are three other themes that I kept noting in the book.
The rule of law and the civil war. As Nicoletti emphasizes, the administration in the Davis case was at pains to adhere to the letter of the law, and a somewhat conservative interpretation of the letter of the law at that. This led them to shy away from several tactics that might have let them avoid trying the case in front of a Virginia jury (such as arguing that Davis could be tried by a military commission, or by a jury in either Indiana or West Virginia). She argues, I think persuasively, that this is because it was seen as especially important to restore the ordinary legal norms that had been frayed during the Civil War.
This is relevant to a larger debate about constitutional history. I sometimes come across constitutional scholars today who will argue, in effect, that "the Civil War changed everything" in constitutional law. We know that the war led to three incredibly important amendments to the Constitution, and to a number of important legal precedents, but one sometimes sees scholars of federalism or even other aspects of constitutional law write as if the entire constitutional system was essentially melted down and reformed. It is striking that the participants in Nicoletti's book did not behave that way. They went to great trouble to hold themselves out as continuing the pre-existing legal regime, even at tactical cost.
Zealous advocacy. Charles O'Connor, Jefferson Davis's defense lawyer, really worked all the angles in support of his client. Because his client's interests were implicated by broader political thought about secession and by the law of military tribunals, he helped prop up arguments by other lawyers in other cases that could help his client's general position. When it looked as if things might turn very bad for Davis, he advised him to flee the country, and offered to reimburse the folks who would lose money on Davis's bail. These are the kind of things I usually only hear about in fanciful hypotheticals about the ethics of criminal defense, but they may well have been in Davis's best interests, and they raise interesting questions about what the defense of a much-hated and high-profile criminal defendant should look like.
Liquidation. In a forthcoming article, I recount James Madison's theory of constitutional interpretation through practice—"liquidation"—by which a repeated course of constitutional decisions can eventually settle an uncertain point of constitutional law. One historical example that I have always had a hard time explaining in this framework is the Civil War's settlement of the constitutionality of secession. In the Civil War, it looks as if the constitutional question was settled in one very big episode, rather than a series of decisions as liquidation would require.
But after reading Nicoletti's fascinating narrative, I think that the process was closer to liquidation than I realized. Nicoletti shows that the constitutionality of secession was not quite so settled after the war, which is why subsequent episodes like Davis's treason trial made Unionists so nervous, and why various decisions and debates after the war were still important for the secession issue. Unionists invoked the tradition of "trial by battle" to explain how war could settle a point of constitutional law, but perhaps the reason they had to do so, and that the analogy had so much drama, was because it in fact required a longer course of practice before the issue was settled.