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[Thomas Thorne]

Jefferson Davis

The government believed that a treason trial could be only conducted in a civil court. Treason is the only crime defined in the Constitution. The military commission exemption for federal grand jury felony indictments is not mentioned in the Constitution and can only try offenses against the laws of war. One of the criteria for finding a person guilty of treason is confession in open court.

The government initially proposed 2 trials against Davis;one a military trial for his alleged role in the Lincoln Conspiracy; the other a treason trial in a civil court.

My sources disagree as to when the former was abandoned.

The Constitution requires that a trial be conducted in the district where the crime occurred. The government proposed that a treason trial be held in Virginia where Davis in his capacity as Commander in Chief of the Confederate armed certainly met one of the constitutional requirements of treason of "levying war" against the United States.

This ran into the problem of finding a Virginia jury of 12 who would unanimously find Davis guilty. It does credit to the government that they rejected the idea of packing a jury with Union partisans to find Davis guilty. An idea that was floated but rejected will be familiar to students of the John Surratt trial. Under the doctrine of "constructive presence" Davis would have been tried in Northern Federal courts for acts of treason when Confederate armies invaded Northern states.

Under the rules of procedure Chief Justice Salmon Chase and a district judge would have conducted a Davis treason trial. Chase put up various legal reasons for delaying the trial. How much of this represented his sincere legal opinion and how much was influenced by his desire to win the Democratic nomination for president in 1868 is interesting. and worth debate.

Government officials were haunted by the fear that a failure to convict Davis at trial would be a repudiation of the war to preserve the the Union. That prominent Northerners who supported the war effort but posted bail for Davis included one of the "Secret Six" who financed John Brown. is striking. Many more including Thaddeus Stevens disparaged the idea of trials for high Confederate officials. It was believed trials would undermine efforts of reconciliation between North and South.

Davis was actually indicted for treason. The indictment included a wonderful phrase borrowed from the customary legal verbiage inherited from English treason trials:

"Jefferson Davis, yeoman, Having no fear of God, and being Moved and Seduced by the Devil"

Tom