Salmon P. Chase on Treason and Secession

Much is often made of the fact that after the Civil War the United States government decided not to try Jefferson Davis for treason. It’s a decision well worth exploring in part because of the misperceptions involved and the incorrect conclusions that some draw from this decision.

In the spring of 1865, the new president, Andrew Johnson, was all in favor of trying Confederate civil and military leaders from what he expressly (and repeatedly) called the act of committing treason. Johnson’s efforts to prosecute military leaders was curtailed by Ulysses S. Grant, who placed himself in the way of an attempt to try Robert E. Lee (and other Confederate military leaders) for treason after they had been indicted by a grand jury in Norfolk, Virginia. However, it was left to Johnson to do what he wanted to do concerning Davis, who remained incarcerated at Fort Monroe, Virginia.

The first question was how Davis would be tried. Would he be tried by military commission or the civil courts? Were the federal civil courts even in operation in Virginia? If not, a military commission was a viable option … or so it seemed until the Supreme Court ruled in ex parte Milligan (1866) that military commissions could not operate in areas where civil courts were open.

Salmon P. Chase, Chief Justice of the United States, had concurred in that decision (although the minority opinion he framed opined that Congress, as opposed to the president, could make such a determination concerning whether the civil courts were open). He was also in charge of the First District Court in Virginia (Supreme Court justices did double duty in those days), and he had refused to hear cases brought forward in federal circuit court until it was clear that his decisions could not be countermanded by military authorities … something he believed depended upon a presidential proclamation setting forth civil supremacy.  The chief justice was not satisfied that Johnson’s August 1866 proclamation was sufficient unto that purpose; by that time, furthermore, a glitch in congressional legislation left the matter of circuit court operation in limbo until March 1867.

Chase claimed that other duties precluded him from presiding at what promised to be a long trial; those obligations grew when in 1868 the House of Representatives impeached Johnson, for Chase would have to preside at the resulting Senate trial. Thus it would not be until the summer of 1868 that a trial would have taken place … and by then Johnson’s attorney general, William M. Evarts, believing that no benefit could be derived from a trial, was willing to let Davis walk.  So, it turned out, was Andrew Johnson, whose Christmas Day proclamation opened the path to amnesty for Davis.

The above tale shows that prosecuting Davis fell victim to other important concerns, political as well as constitutional. Concerns that a jury might acquit Davis (more likely it would have been a deadlocked jury, although everything rests on where the trial took place and the process of jury selection) seem to have taken a back seat to these other concerns. Johnson found himself caught between his desire to try Davis and his desire to restore civil rule.

One might note Chase’s role in all this. Yes, Chase worried about securing a conviction under such circumstances, or that the resulting punishment might not fit the crime. The debates were not over the abstract issue of treason, but concerned its practical application in court (much the same had been true of an earlier case tried before a chief justice at Richmond some six decades before … the trial of Aaron Burr). But this was the same Salmon P. Chase who within a year of the decision to abandon the case against Davis penned the Court’s opinion in Texas v. White (1869) that the United States was “an indestructible Union of indestructible states.”  As he explained:

When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.

One must take together Chase’s actions in both cases to discern what he believed he was doing. He did not recognize a right of secession as practiced in 1860-61 (although he highlighted two ways in which the Union might well be dissolved). To him, that was the important question to be answered, and having answered that, it made little difference what happened to Jefferson Davis at a time when Chase was more interested in restoring civil authority and supremacy in the court system.