XXXIII. Why Davis Was Not Tried for Treason
From that moment the administration knew that Jefferson Davis would never be tried for treason and drew a long breath of relief. Yes, the administration knew, but the general public, beyond the gilded vagaries about humanity and the magnanimity of a great nation to a vanquished foe, sedulously promulgated to obscure the real reason, has never understood why Jefferson Davis was never tried for the high crime which it was alleged that he had committed against the United States.
Unfortunately the restricted space at this time at the disposal of the author precludes anything more than setting forth the conclusions based upon the evidence now in his possession, of why this charge was so joyously abandoned by an administration which less than two years before had moved heaven and earth to discover any pretext which might lend the color of justice to the summary execution of the illustrious chieftain of the Confederacy.
To one in any way acquainted with popular sentiment, with the temper of the administration even in 1867, all declarations of magnanimity, generosity and abhorrence of extreme measures must seem the merest cant. It is, of course, not beyond the pale of possibility that those who in 1865 were willing to descend to any depths of infamy to secure a pretext for the execution of Mr. Davis might have experienced a change of heart in two years sufficiently marked to create conscientious scruples against putting him upon a fair trial in a court of justice on the charge of treason. But that theory of the case would be altogether unlikely even if we did not know that the desire of the administration to hang Jefferson Davis was just as intense in 1867 as it was two years before. That it did not attempt to accomplish that result through the regular channels of justice, is due entirely to the fact that such a trial would have opened up the whole question of secession for final adjudication by our highest court of last resort. It would have been a trial not so much of Mr. Davis as of the question of state rights, and the able lawyers of the administration, partisans as they were, had no desire to see the highest judicial body of the land reverse an issue which had been satisfactorily decided by the sword.
Charles O’Connor’s bold declaration that Jefferson Davis could never be convicted of treason under the Constitution as it then stood first aroused the administration to the dangers of the task that it had assumed. Mr. Johnson sent for his attorney-general and had him prepare an opinion on the case. In due time it was submitted. It was a veritable bombshell which fairly demolished every theory upon which Jefferson Davis might have been convicted of treason or any other crime.
Mr. Johnston then called to his aid two of the greatest constitutional lawyers of the age, and they agreed with the conclusions of Mr. Stanberry. Not satisfied with this, he invited the chief justice to a conference for a full discussion of the matter.
If there was ever a partisan, it was Salmon P. Chase, but at the same time he was a great lawyer and an honest and fearless man. “Lincoln,” he said, “wanted Jeff. Davis to escape. He was right. His capture was a mistake, his trial will be a greater one. We cannot convict him of treason. Secession is settled. Let it stay settled!” Significant words truly from that source, and they explain the vote of the great judge who would have quashed the indictment against Mr. Davis no less than the question so often asked, “Why was Jefferson Davis never tried for treason?”
Immediately after Mr. Davis’ release on bond, he went with his family to New York, and a few weeks later to Montreal, where he continued to reside until May of the following year when he again appeared before the Circuit Court in Richmond for trial. But despite the efforts of his counsel to force a trial of the case, it was dismissed by the government and thus ended ingloriously the boast of the government that it intended “in the arch traitor Davis to make treason odious.”