Wolnisty on Nicoletti, 'Secession on Trial: The Treason Prosecution of Jefferson Davis'

Cynthia Nicoletti
Claire Wolnisty

Cynthia Nicoletti. Secession on Trial: The Treason Prosecution of Jefferson Davis. New York: Cambridge University Press, 2017. 358 pp. $29.99 (paper), ISBN 978-1-108-40153-1

Reviewed by Claire Wolnisty (Department of History) Published on H-Nationalism (June, 2020) Commissioned by Evan C. Rothera (University of Arkansas - Fort Smith)

Printable Version: http://www.h-net.org/reviews/showpdf.php?id=55223

Secession on Trial: The Treason Prosecution of Jefferson Davis  explores the “wrong side of history”: secessionists who “were smart, passionate, and devoted to their cause—and that made a difference in the world” (p. viii). Secession on Trial analyzes the complex issue of secession’s possible constitutionality through the lens of the Jefferson Davis treason trial—no small task. As Cynthia Nicoletti concludes, “The validity of secession remained at base a legal question, and in the war’s immediate aftermath, Americans engaged in a national dialogue about whether they could permit the blunt instrument of military victory to substitute for the judgement of a court of law in resolving the issue” (p. 5).

Nicoletti creates a “far murkier” and “less straightforward picture” of the US Civil War’s immediate aftermath than what many historians and constitutional scholars have acknowledged (pp. 11, 119-20). Fourteen roughly chronological chapters highlight both the biographies of people involved in the Davis trial and the historical, ideological, and legal debates surrounding his trial. Nicoletti dedicates some chapters, such as chapter 2, “Two Lions of the New York Bar,” and chapter 9, “Underwood and Chase,” to the backgrounds and possible motivations of the trial’s key players, such as lead prosecutor William Evarts, Davis’s primary lawyer; Charles O’Connor; District Judge John C. Underwood; and Chief Justice Salmon P. Chase. Other chapters, such as chapter 1, “The Imprisoner’s Dilemma,” and chapter 10, “Secession and Belligerency in Shortridge v. Macon,” highlight the legal uncertainties surrounding the high-profile Davis trial. By weaving biography and legal analysis together, Nicoletti ably shows that “accepting the fact that the Union had achieved victory on the battlefield rather than in the courtroom was neither easy nor automatic for many Americans” (pp. 119-20).

Nicoletti astutely identifies two main sources of conceptual murkiness surrounding the Davis trial. First, members of the Civil War-era public “were forced to ask themselves whether they had become barbarians in the upheaval of the war. For many introspective Americans, the answer was an uncomfortable ‘yes’” (p. 87). As Nicoletti outlines in chapter 4, “The Civil War as a Trial by Battle,” the violence of war would lose its meaning if secession proved constitutional in a trial by jury. Second, disagreements about formalism and functionalism permeated debates surrounding the Davis case. As Nicoletti concludes in chapter 12, “The Reach of the Prize Cases,” “Not everyone viewed the law so instrumentally as Lincoln and Seward. For most nineteenth-century legal thinkers, the law was not infinitely malleable” (p. 252). In addition to the context of uncertainties surrounding the status of the Confederate States of America within domestic and international law, the Davis trial occurred amid nineteenth-century debates about the nature of law itself. 

Nicoletti’s research becomes more significant given the difficulty of her work. In order to defend Davis, O’Connor often behaved one way in public but expressed entirely different viewpoints about the Davis case in his private letters. O’Connor shifted his tactics so often that he won over the most unlikely of Radical Republican allies, Horace Greeley, an accomplishment the Boston Daily Advertiser declared in 1868 to be utterly “absurd” (p. 309). On the pro-Union side of the trial, legal thinkers consciously sought “to whitewash any evidence that uncertainty had ever existed” (p. 250). This is a tendency that Nicoletti maintains has persisted until the present day. She claims, “It has been far easier for Americans to forget that secession’s unconstitutionality was ever seriously in doubt after Appomattox. It has been easier to forget that the judgment of the law ever threatened to disrupt the judgment of the battlefield” (p. 326). Both the deliberately misleading tactics of the trial’s lawyers, especially the antics of Charles O’Connor, and the almost immediate revisionist interpretations of the trial events complicate efforts to understand the full significance of the Davis trial. 

Secession on Trial stands as a deeply informative, thoroughly researched, and groundbreaking work about the ideological and factual context of the Davis trial. Nicoletti set herself a very difficult project and succeeds in creating a narrative told through a range of voices that questions what has become the Davis trial’s standard narrative of Radical Republican consensus. Readers with an interest in legal history, debates about the nature of treason, and memorialization of the US Civil War will greatly appreciate her efforts.

Citation: Claire Wolnisty. Review of Nicoletti, Cynthia, Secession on Trial: The Treason Prosecution of Jefferson Davis. H-Nationalism, H-Net Reviews. June, 2020. URL: http://www.h-net.org/reviews/showrev.php?id=55223

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