The Clever Way Jefferson Davis Avoided Being Convicted Of Treason

“Rebellion must be managed with many swords; treason to his prince’s person may be with one knife.” —Thomas Fuller

In A Nutshell

After the Civil War, former Confederate President Jefferson Davis was charged with treason in the US federal court system. However, the Chief Justice of the Supreme Court gave the Davis legal team an interesting argument for dropping the treason charge. By proving that the US had no citizens under the Constitution, Davis couldn’t be tried for treason against the US. His citizenship rights were finally restored in 1978 by President Jimmy Carter.

The Whole Bushel

On April 9, 1865, Confederate General Robert E. Lee surrendered to the Union Army, ending the US Civil War. Former Confederate President Jefferson Davis had already fled the South’s capital in Richmond, Virginia. He wanted to escape to Britain or France, where he might reestablish a government in exile. However, before he could do so, members of the 4th Michigan Cavalry arrested him. At the time he was apprehended, Davis was sporting his wife’s black shawl. The Northern press tried to make him a laughingstock by accusing him of dressing as a woman in a desperate attempt to evade capture. However, Davis and his wife insisted that she had given him the shawl to stay warm for health reasons.

When Davis was indicted on a charge of treason in the federal court system, he stood before US Supreme Court Chief Justice Salmon Chase, who was acting as a circuit judge at the time. Chase preferred to dismiss the treason charges, but another judge, John Underwood, wouldn’t agree to it. Davis’s defense team argued that he had already been punished by the 14th Amendment, which stopped him from serving in public office in the future.

As a former US House and Senate member before the war, Davis had taken an oath of allegiance to support the Constitution of the United States. Under the 14th Amendment, anyone who has taken such an oath and engaged in insurrection against the US cannot hold public office. According to Davis’s lawyers, that inability to hold public office under the 14th Amendment constituted punishment for his rebellious actions. To prosecute him for treason for the same rebellious actions would constitute double jeopardy under the 5th Amendment. Therefore, his lawyers argued, he could not be legally tried for treason.

However, the Chief Justice gave the Davis team another interesting argument for dropping the treason charge. Chase asked if a person could be prosecuted for treason against the US if he were not a US citizen. Clearly, no. Then Chase asked if there was a reference to the concept of a US citizen in the Constitution. Again, there was not. A person could only be a citizen of his state. Therefore, by proving that the US had no citizens, Davis couldn’t be tried for treason against the US. It was a clever argument that has never been used again as far as we know.

Although a deadlocked case in the district court would have automatically gone to the Supreme Court, it ultimately didn’t matter. President Andrew Johnson pardoned everyone who fought for the Confederacy on December 25, 1868, as long as they applied for the pardon. Although former officials of the Confederacy still couldn’t hold office or vote, they were now immune from prosecution for treason. In some circles, there wasn’t much appetite for trying Davis for treason anyway. Officials of the US government were afraid that Davis would prove that the South’s secession had been legal. However, the various amnesty provisions passed at that time never reinstated Davis’s citizenship. His citizenship rights were finally restored in 1978 by President Jimmy Carter.

Show Me The Proof

Featured photo via Wikipedia
This Day in History: Jefferson Davis captured
National Constitution Center: The pardon of Jefferson Davis and the 14th Amendment
500 Little-Known Facts in U.S. History, by George W. Givens

  • inconspicuous detective

    wow. this is very cool, and following juneteenth, too. i did not know myself why the men of the confederacy were never tried for treason; now i have a better understanding. thanks, heather ramsey!

    • a_v

      Not that it matters, but Southern revisionist history has probably contributed to it to this day as well.

      • RELee

        Have you ever read a “Southern revisionist” history book? Most “Southern” historians I’ve read can back up their opinions with facts. Sure we have some fools that deny slavery had anything to do with the war. Yet many yankee historians try to “sugar coat” the Union cause as being all about freeing the slaves and making them citizens. They deny there were free blacks who were slave holders and free blacks that willingly fought for the Confederacy. In reality the war was about centralization in power and money in the federal government.

        • G-Man

          Who cares if there were “free blacks” that fought for the Confederacy, in reality you’re spewing Southern Revisionist garbage. Lincoln fought the Civil War to keep the Union whole, freeing the slaves was secondary. Empirical data of the multiple declarations of secession from former Confederate States mention slavery within their 1st paragraphs as the reason for secession. Or in your words “centralization in power and money in the federal government”.

          • RELee

            “Southern Revisionist garbage” is the yankee “we won so truth don’t matter” term. Fact is if Lincoln had not been elected there would have been no war. So Lincoln’s election was the cause of the war period.

          • G-Man

            FACT: Southern States seceded from the Union, they fired unprovoked upon Fort Sumter….This was the reason there was a war. As for “sugar coating the cause”, look no further than your obvious attempt to justify the lost cause of the Confederacy by offering up the “free black owning slave holders” statement. Your argument being, that if blacks owned slaves, and fought for the Confederacy, then slavery isn’t that bad? Even if that little tidbit you offer is factual, it certainly wasn’t the norm, but more the exception. Slavery is and was a barbaric practice. As for the “truth”, you keep telling yourself it was about the centralization in power and money in the federal government. And I will stick to the factual documents listed within the Justification for Secession submitted. In which the majority “slavery” is mentioned within the 1st paragraph if not within the first 3 sentences. The idea that you are blaming the democratic election of a US President as the sole cause of the Civil War is absurd and completely disingenuous. Lincoln didn’t force the Southern States to secede, he didn’t force them to write the declarations for the Justification for Secession, and he didn’t force them to fire unprovoked on Fort Sumter. You Confederate sympathizers need to start owning your actions and treason.

          • RELee


          • Mark Petrishen

            I am a Yankee who has lived in the south for 20+ years. I have studied a lot of the war and it’s sad so much has been suppressed. Have you ever seen the “proposed” 13th amendment protecting slavery if the south would just rejoin the union? The letter to the commander at Ft. Sumter from Lincoln agitating a resupply of the fort after Lincoln promised Davis he would not do so. Isn’t it funny Horace Greeley, a well known abolitionist, bailed Davis out of jail? Isn’t ironic many famous abolitionists like Greeley, Douglass, etc couldn’t stand Lincoln? The two prosecutors appointed by the north for the treason case both stepped down after reviewing Davis’s plea. It was an illegal war. Fought over money like every other war. Plain and simple.

          • RELee

            Money and political power as always…

          • Bill kennedy

            President Lincoln went to extraordinary lengths to assure the Northern electorate he wasn’t waging a war of abolition because he knew they would never support it. A war of abolition meant no army to fight a war to preserve the economic benefits of the country as it was configured in 1860. The mercantile system in effect was clearly advantageous to the North.

            The Emancipation Proclamation which freed almost no slaves nearly cratered the Union war effort. 200,000 union soldiers deserted and scores of thousands went to Canada. Thousands also fled to the mountains of central Pa. to get beyond the government’s reach (Per James McPherson).

            Most of New England, save New Hampshire, refused to participate in the War of 1812 because of the economic damage to the area as a result of a war with GB. They sent no men and little money and they convened in Hartford to announce their plans to negotiate a separate peace with the Brits and to consider SECESSION. They were ignored and the war was brought to a conclusion before they had done either but they very clearly thought secession was legal. These were saintly, if not godly, New Englanders don’t you know. There were no repercussions for what they did and so far as I have ever read not one person ever said they couldn’t do it.

            The resolution of the secession question was coming at some point by someone. Most of the political class on both sides considered it a legal option in 1812 and in 1860 as well.


          • UnreconstructedRebel

            “…the multiple declarations of secession from former Confederate States mention slavery within their 1st paragraph” – so says the moron who obviously hasn’t bothered to read them. Four mentioned slavery as a cause, the other seven did not. Tee up the next idiot yankee argument.

          • Bill kennedy

            No G-man. Thirteen Ordinances of Secession with eleven states actually leaving, The Ordinances of Secession say virtually nothing about slavery. Four states drafter entirely separate documents, Declarations of Cause that list slavery among the reasons for leaving. The remainder, conspicuously did not despite some pressure to do so.

            Both Tennessee and Virginia rejected secession by ballot with Virginia rejecting it twice. If slavery alone had been the issue the Upper South probably would have stayed. The Corwin Amendment had been passed by both the Senate and the HOR, signed by Buchanan and endorsed by Lincoln. It put slavery where it existed, North and South, beyond the reach of the established constitutional amendment procedure. The Upper South had a nearly ironclad guarantee for the safety of slavery and they left anyway. Four slave states stayed in the Union and West Virginia joined the Union in 1863 under conditions that can’t be considered anything other than a slave state.

            In 1861, slavery was legal in Washington DC, the capital of the United States.

            The Confederate Constitution by design restricted the power of the central government beyond that of US Constitution.


  • eddieinman

    So awesome that Davis could manipulate the legal system in such a way. LOL. I hope this is not supposed to be credible history.

    • Bill kennedy

      Didn’t manipulate anything. The US government was afraid of acquittal. They could have brought him to trial for treason any time for nearly three years but chose this as the means of avoiding the risk of acquittal.

      Lincoln’s plan was to allow Davis to escape thus avoiding the thorny problems associated with a treason trial.


  • G-Man

    What other sources besides the aforementioned 500 Little Known Facts in U.S. History book that contain the quotation of Chief Justice Chase mentioning this “US Citizenship” as a qualifying argument for treason charges? Here is a source that chronicles the entire trial. There is not one mention of this so called “US Citizen” argument.

    • Bill kennedy

      Lincoln’s plan for Davis was to allow him to escape, thus avoiding the problems he already foresaw with a treason trial.


  • UnreconstructedRebel

    Utter garbage. The legal ruse was something the US govt employed in order to avoid going to a trial that they likely were going to lose. President Davis wanted and demanded a trial in order to vindicate himself and his cause.

  • FederalFarmer

    The 14th Amendment didn’t exist when Davis was captured. This is total BS