Historians and the history-minded began having persistent Reconstruction flashbacks even before last week, as Democrats discussed how far to take the many possible future investigations and prosecutions of Donald Trump. With the Capitol riots and related events of Jan. 6, those flashbacks got more vivid. It’s obvious, in hindsight, that something (anything! many things!) should have been done after the Civil War to stop the homegrown authoritarian regime known as “Jim Crow” from developing. Would stronger punishments for the figureheads of secession have worked?
I asked Cynthia Nicoletti, a historian at the University of Virginia who wrote a book about why the North failed to bring the leader of the Confederates to trial (Secession on Trial: The Treason Prosecution of Jefferson Davis), to explain how Southerners who led the rebellion managed to escape punishment and to speculate as to whether that move might have made a difference.
Our conversation has been edited and condensed for clarity.
Rebecca Onion: What did Northerners think, as the war was coming to an end, should be done with Southerners who fought for the Confederacy?
Cynthia Nicoletti: After the war, Northerners were talking about things like, Let’s hang Jeff Davis from the sour apple tree. There was this rumor that Davis was arrested wearing women’s clothing—that by all accounts was not actually true, and he was very angry about it!—and that led to people saying, Let’s take him, put him in women’s clothing, parade him through the streets, and charge people to see him humiliated.
But the American justice system doesn’t work like that—and so one of the things that really interested me is how difficult getting the “right” outcome was. One of the things that’s really important here is that the government was all gung-ho to put Davis on trial for treason at the end of the war. There was a fervor to try him—like, If we don’t, what we’re suggesting is that waging this war, on this huge scale, and killing all these people for this terrible cause will go unpunished. We are not a nation if we are not capable of trying the head traitor for treason. They could have tried all the Confederates for treason, but they thought, Let’s have Davis be the first test case, and after he’s tried and convicted, there will be lots of prosecutions to follow.
But it quickly became apparent that they could get the wrong outcome in the trial, and they worry that if the Davis trial is supposed to be a proxy for the idea that the Confederate war effort was illegal—that states were not allowed to secede from the Union—what happens if they get the wrong outcome? If they get a jury that refuses to convict Davis, what does that say about the legality of the war effort? What if they get a judge, or even a Supreme Court justice, who says something like Secession was legitimate?
There was also a real debate within Northern society about punishing these people, versus showing them mercy. What’s interesting is how quickly this really intense sentiment—we should hang all of the Confederates, and make all of them pay—Vengeance!—really fades. Public opinion did really change quite dramatically. Reading newspapers and people’s letters, you see Northerners very fired up about punishing Confederates through 1865, and when you get to 1866, it starts to dissipate.
The question really is, how would you punish Confederates? If you’re going to punish them through the legal system, and in a way that really comports with the letter of law and all of the protections the United States Constitution affords to all criminal defendants, it makes it hard to try them and make sure you get a conviction. I think public opinion is in some sense related to this, because it becomes clear that exactly what the outcome is going to look like is not going to be fully satisfying to Northerners.
I was looking at William Blair’s book (With Malice Toward Some: Treason and Loyalty in the Civil War Era), and there is a lot of interesting stuff in there about former abolitionists who supported clemency for Davis—including people like Gerrit Smith, one of the group that secretly funded John Brown. Some believed that capital punishment was wrong; some thought it was smarter to strip Confederates of their power in other ways. But you write that Frederick Douglass also said, in 1866, that Davis would probably go unpunished, and that this would be all right. How does that argument evolve?
The real problem was Northerners have to rebuild a society in which Southerners are a part. To what extent are they going to be outcast forever? There was also the problem of violence emerging again. I think today this sounds ridiculous to us, but at the time, the prospect of another civil war got talked about a lot. They think, as soon as Southerners get some arms together, they might rebel again. … The founding of the Ku Klux Klan in late 1865, and the violence in Southern cities in 1866 [see: Norfolk, Virginia; New Orleans; Memphis, Tennessee], looked like it might be the sign of something even more serious.
In hindsight, it’s easy to track momentum in one direction or another, but if you’re living through it, it’s hard to see. And on the flip side, there was also this sense of, We’re all Americans, and we have the legacy of the Revolution, and how do we knit this thing back together? I think today this sentiment seems very foreign to us.
I always look at this like, Why didn’t they stamp all this out right after the war?
Right, that’s the way we think of it now. That might have made Jim Crow harder to instantiate. … Why didn’t we show no mercy? And that is a very hard question for them, as well. They’re thinking—to what extent are they going to crush all of Southern society? If you can get over the pain of doing that and having a generation of the Southern economy totally decimated, would we have come out different and maybe better on the other end? But they’d be paying the price in the immediate short term. That price was immediately palpable to them, in a way that’s not palpable to us. They’re thinking, How do we put this back together without an endless series of wars? And they’re honestly quite worn out.
There’s also a big class question here, which is—white elite Southerners were already trying to re-form their old friendships with white elite Northerners. It’s sort of amazing, the degree to which some elite white Southerners get back in the good graces of those Northern friends. And the Southern elite would often say things [about the violence] like, Well, you know, we can’t keep the masses in check.
And related to that class point, there’s also a dynamic happening here, which is that Northerners are wondering—how much of a revolution is this going to be? How far do we want to go? The radicals wanted to go quite far, and wrote these new Constitutional amendments that are quite radical for the time—actually, not even just for the time! They’re still radical now. They were guaranteeing racial equality for the very first time, and that’s part of American law now.
And people are thinking, How much farther are we going to push that? Are we going to totally upend Southern society, do things like land redistribution, break up plantations, give land to not just Black people but poor white people? These ideas get debated, but Americans—and I mean Northerners as well as Southerners—are fundamentally conservative with a small c. I don’t think they could really imagine totally reimagining the world, starting from scratch.
I spent a lot of time looking at the attorney general of the United States [Henry Stanbery], whose job it was to bring prosecutions against Confederates, who was supposed to order the various U.S. attorneys to bring prosecutions. And they think about going with military tribunals, and other kinds of ways where they could make sure the jury doesn’t have any former Confederates on it, but Stanbery was very against this. And behind his belief that they shouldn’t do this was this sense of, We have to bring the country back to normal; we’ve been in a state of chaos, where we’ve suspended lots of rules that normally apply, but our constitutional system has to go back to normal.
You wrote that the way Lincoln’s assassins were tried, by military tribunal, in May and June 1865, made some people uncomfortable with the prospect of more of the same.
Yes, that was really cursory, really quick, and some things that happened gave some people pause. Mary Surratt, one of the conspirators, was the first woman to be executed by the federal government. It’s interesting because, if they had followed through with the impulse to punish right at the same time, when public opinion was high on punishment above all else, and fewer people cared about niceties, I think more Confederates might have been tried and punished. But people were sort of horrified at some of the aspects of those tribunals, and as time went on, people start really parsing all the rules around punishment, and that gave time for public opinion to moderate and for those voices that were crying for reconciliation and forgiveness to gain a lot more force.
I mean, it’s striking that by the time Johnson pardons Davis, on Christmas of 1868, even the Radical Republican newspapers, like the Chicago Tribune—one of the most radical in the United States—thought that dropping the matter was the best idea.
Any lone voices in the wilderness?
I’m hard-pressed to think of any—maybe Charles Sumner. Even Thaddeus Stevens [the Radical Republican representative from Pennsylvania who favored confiscation and redistribution of land to freedpeople] had offered to represent Davis, as his lawyer. Those are the crosscurrents of alliance that happened, and a real push to get this ugliness behind us.
That shocked me to read. Let me get it straight: Stevens thought if he could argue that Davis was not subject to United States law, and had not been treasonous, that would mean the Confederacy was a conquered nation. Then, Reconstruction could proceed with the United States acting as an occupier of the Southern states, which would allow for a stricter Reconstruction. This was a strange bedfellows situation.
Yes, that’s about it. I would say, ultimately, the push to punish Confederates is not the primary impulse, right? Even for somebody like Stevens, who wants a pretty harsh program of Reconstruction. He did, but he also thought—and I think this is pretty widespread—that it seemed unfair to make the punishment fall on one person, or a couple of emblematic people.
And Davis’ lawyer was quite good at presenting the plight of Jefferson Davis, the man. He was quite sick, they chained him up in prison for a bit, it looked like he was going to die, and that made the rounds in the newspapers—Oh, this poor person, they’re torturing him. Interestingly, that image also did wonders for Davis’ reputation among Southerners; he was very disliked during the war, because he was blamed for all the problems of the Confederacy. But it’s not just with Southerners that this tactic worked. Other people start saying, You’re going to visit all of the anger of the whole country, for the 700,000 deaths, on one guy?
I’d like to ask about Andrew Johnson, who ended up pardoning Davis on Christmas of 1868. One impulse in the potted history of this time is to say, Johnson betrayed Reconstruction, betrayed the North, betrayed freedpeople. What do you think?
In studying just the issue of treason, I have a bit more sympathy for Johnson than I think many historians who look more broadly at him do, because he was really caught in a bind.
There’s an apocryphal story that Lincoln said, before he died, as Davis was escaping and fleeing South, that Lincoln hoped Davis might get away to Mexico. That this was the best option, because then they wouldn’t have to deal with the problem of trying him. I think Johnson, in reflecting on that idea, eventually comes to the realization that Lincoln was right. Davis’ trial just becomes this huge political liability for him.
At first, Johnson was very strong on the idea of trying Confederates for treason; he was the one Southerner who refused to leave Congress when his state seceded, and he was a populist, working class, had taken it on the chin from these elite slaveholders his whole life. So at first, he was gung-ho on the idea.
Then when his Cabinet started meeting and his attorney general raised these concerns, Johnson had time to repent this impulse at great length. It became a political weapon in the hands of his enemies. There was an unsuccessful initial attempt to impeach him [in 1867] that investigated the question as to why he didn’t try Davis, suggesting he was failing to do so because he was sympathetic to Confederates. But everyone involved in the trial testified before the House and said no, there were very good reasons why not.
I think the blame that’s to be laid at Johnson’s door is less about the Davis pardon, and more the fact that he gave amnesty, en masse, to basically everybody, in May 1865. Except for the higher-ups—14 groups of people, including those who had held Confederate offices or who had more than $20,000 in property—who had to apply for individual pardons by applying personally. But then, over the course of 1865, he granted almost all of those. He might have issued conditional pardons—things like, you get a pardon if you transfer some of your land to the people you enslaved—but he didn’t.