Mackey on Icenhauer-Ramirez, 'Treason on Trial: The United States v. Jefferson Davis'

Robert Icenhauer-Ramirez
Thomas C. Mackey

Robert Icenhauer-Ramirez. Treason on Trial: The United States v. Jefferson Davis. Baton Rouge: Louisiana State University Press, 2019. 376 pp. $55.00 (cloth), ISBN 978-0-8071-7080-9

Reviewed by Thomas C. Mackey (University of Louisville) Published on H-CivWar (January, 2021) Commissioned by David Carlson (Troy University)

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Jefferson Davis was certainly a president within the United States even if his tenure was shorter than expected and his cause disputed then and now. But was Davis a traitor to the United States or the patriotic leader of the Southern insurgency? If patriot, then the creation of the so-called Confederacy through secession was a legitimate and valid act of self-government in response to alleged repression by the Northern and Midwestern states led by Abraham Lincoln and the ascendant Republican Party; therefore, Davis committed no treason. On the other hand, if Davis waged war on the United States, sought to break the bonds of the 1787 Constitution, sought to establish a separate government and country in North America, and secession was an illegitimate constitutional theory (as Lincoln stated in his first inaugural address, the “essence of anarchy”), then Davis committed treason. Whether Davis led an insurrection or led a freedom movement depends more on perspective than is often recognized. Lincoln himself held no doubts and said so publicly. In his December 6, 1864, Annual Message to Congress, Lincoln reaffirmed his iron commitment to pursue the war against the insurgency. He wrote, “The public purpose to re-establish and maintain the national authority is unchanged, and, as we believe, unchangeable.” Was a negotiated settlement possible? Not for Lincoln. He continued, without directly naming Davis, “On careful consideration of all the evidence accessible it seems to me that no attempt at negotiation with the insurgent leader could result in any good. He would accept nothing short of severance of the Union—precisely what we will not and cannot give.” President Lincoln went on: “He cannot voluntarily reaccept the Union; we cannot voluntarily yield it. Between him and us the issue is distinct, simple, and inflexible. It is an issue which can only be tried by war, and decided by victory.” Lincoln had no doubt that the “insurgent leader” would not yield; that the “insurgent leader” had waged war on the Union, the Constitution, and the nation; and that the war would only cease when one side or the other achieved victory on the battlefield. That “insurgent leader” was Jefferson Davis.

So, the conundrum: was Davis a patriot to the Southern cause and a version of constitutional theory—the Compact Theory of the Union—that allowed secession and separation, or a traitor to the 1787 Constitution and the permanent Union/nation recognized by the 1787 Constitution? From 1865 to 1869, from the capture of Jefferson Davis to the dismissal of the treason indictments against him, this conundrum was not a “thought problem” for political theorists but an ongoing, lived political, legal, and constitutional problem for the Andrew Johnson administration, for Jefferson Davis, and—the ultimate focus of this work—for the lawyers who became enmeshed in the subtle and overlapping arguments and legal dilemmas of trying Davis for treason.

Recently, this tangle of legal and constitutional arguments has drawn the attention of scholars, most notably in Cynthia Nicoletti’s 2017 award-winning book, Secession on Trial: The Treason Prosecution of Jefferson Davis. In that challenging and important work, Nicoletti argues that rather than endow secession with any sort of legitimacy by having Davis’s defense team raise the issue in court, a trial by battle that the Southern insurgency lost, the federal prosecutors and the Johnson administration preferred to allow the issue to trail off over time, content that the issue of secession had been settled at Appomattox Court House and capped off by the 1869 decision of the United States Supreme Court in Texas v. White. She contends that they decided to deny the precedent of secession and, by neglect, kill the idea even if no definitive judicial decision had been reached on the issue of secession and constitutionalism.

Attorney and University of Texas at Austin history PhD Robert Icenhauer-Ramirez finds Nicoletti’s arguments “unconvincing” (p. xii). As a result, and with a lawyer’s critical eye for each and every detail of each and every argument proposed by each and every attorney involved with the litigation, Icenhauer-Ramirez crafts an argument that, at its base, is a story of incompetent counsel on behalf of the United States. As Icenhauer-Ramirez states his thesis, “While national politics had a role in the direction of the case, it was the actions and decisions of lesser-known men and women that ultimately bear responsibility for the failure to try Davis for treason” (p. ix). From his deep and wide reading in the sources, Icenhauer-Ramirez notices that throughout the treason trial process the United States got outlawyered, from the decision to bring an indictment in the first place to the pressures and pushes to drop the indictments. As a result, this work recounts the story, again, of a major state trial that did not occur, of the dogs who did not bark, and the failures of the government attorneys tasked with running, overseeing, and prosecuting the treason trial of Jefferson Davis.

Icenhauer-Ramirez spreads the blame for the failure to try Davis around to a variety of persons. He places the “primary responsibility” (p. 298) at the feet of Lucius Chandler, the United States Attorney for Virginia. Chandler lacked the self-confidence and the political and litigation skills needed to bring and prosecute such a case with such major implication. The task overwhelmed him. Icenhauer-Ramirez argues that Chief Justice Salmon P. Chase lacked the will and stomach to support the Davis prosecution out of fear that it would hurt his own political calculations. Chase avoided Richmond whenever his presence might have advanced the judicial process of trying Davis and obfuscated in his responses and guidance issued to Chandler and others on how and why to proceed with the Davis treason trial. In fact, Chase met with Davis’s attorney’s “about the charge and gave them advice on how to proceed—three times going so far as to suggest avenues of approach to prevail against the government” (p. 299). Icenhauer-Ramirez also targets and blames President Andrew Johnson for the failure to try Davis for treason. While Johnson told his cabinet that he wanted Davis tried, he also delegated the task to legal professionals—his attorneys general and Chandler—and then took an out-of-character hands-off approach to the actual process of bringing Davis to trial. A stronger president, a Thomas Jefferson, speculates Icenhauer-Ramirez, citing the earlier Aaron Burr treason trial, would have pushed harder for Davis’s trial. But, given the turmoil surrounding the Johnson administration and that Johnson himself was in over his head as president at that historical moment, something had to fall to the wayside, and the Davis prosecution faltered for lack of legal talent and political will and commitment.

Contrary to this list of who failed the prosecution, Icenhauer-Ramirez credits the Davis defense team, especially New York City attorney Charles O’Conor, with all of the talent and motivation necessary to defend their client that the prosecution team lacked. O’Conor’s long-term strategy of delay, of building legal and political allies, and of changing the public’s perception of Davis and secession paid dividends. While the four years of imprisonment and separation from family no doubt taxed Davis, his family, and his supporters, O’Conor concluded that he could not only get bail granted for Davis, but succeed in avoiding a treason prosecution against his client all together. Father Time, O’Conor came to understand, was on his side when faced with the legal mediocracies and the political hesitancies of the United States’ legal team and leaders.

Less concerned with high public policy implications and constitutional theory than Nicoletti’s earlier book and more concerned with the nuts-and-bolts problems associated with the lawyers and bureaucratic issues involved in bringing and prosecuting a charge of treason against so notable a person as Jefferson Davis, Icenhauer-Ramirez’s book fleshes out the complex and, at times, nonlinear, progress of the prosecution, or, rather, non-prosecution, of Davis. Not deciding to prosecute was still a decision, and Icenhauer-Ramirez’s work analyzes the multiple layers of lawyers, legal ideas, and political motivations in the effort to try David for treason. His impressive digging in the primary sources becomes evident though the sheer amount of detail provided in each chapter, and, based on his evidence, Icenhauer-Ramirez makes a cogent argument about the unexpectedly difficult task of prosecuting Davis. While the evidence can be overwhelming, perhaps daunting at times, to consume as a reader, Icenhauer-Ramirez has produced a book that any future investigators of the treason trial of Jefferson Davis will both build on and be enriched from mastering.

Citation: Thomas C. Mackey. Review of Icenhauer-Ramirez, Robert, Treason on Trial: The United States v. Jefferson Davis. H-CivWar, H-Net Reviews. January, 2021. URL:

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