Reckoning with Race. Gene Dattel
able defense lawyer, Charles O’Conor. The war’s military tribunals had been discontinued, so Davis would have to be tried in a civilian court system. The attorney general James Speed “had grave doubts” about winning the case. He warned that the federal government might “end up having fought a successful war, only to have it declared unlawful by a Virginia jury.” Legal questions centered on the states’ right to secede.
President Johnson then suggested a pardon for Jefferson Davis, who proudly refused to accept it. A pardon, he said, “would be a confession of guilt.” Davis relished the idea of pleading the justice of his cause in a courtroom, with the nation as an audience. He was finally indicted in May 1866. The prosecutors who joined the case, William H. Evarts and Richard Dana, replaced the original indictment for complicity in the assassination of the president with a new one accusing Davis of treason. Even with the new charge, Evarts and Dana had serious doubts about obtaining a conviction. The government did not want the embarrassment of a defeat in court. When the case came to trial in May 1867, a postponement ensued.
The judge, John Underwood of the US District Court of Virginia, allowed the defendant to be released on bail of $100,000. The sum was guaranteed by an unlikely group of abolitionists—Horace Greeley, editor of the New York Tribune; Gerrit Smith; and Cornelius Vanderbilt. Each guaranteed $25,000, and ten others contributed $2,500 each. The day after Davis’s release, a banquet was held in Richmond. At the festive affair, journalists from New York, Boston, London, and Richmond toasted both Confederate and Union generals. Greeley, who had attempted to shorten the Civil War by compromise, wanted a peaceful reunion. He attended the trial in person and afterward spoke to a group of blacks and whites at the African Methodist Church in Richmond. The editor asked the assembly to forget:
I entreat you to forget the years of slavery, and secession, and civil war now happily past. . . . forget that some of you have been masters, others slaves, some for disunion, others against it, and remember that you are Virginians, and all now freemen.
Gerrit Smith, the abolitionist supporter of John Brown and sponsor of the ill-fated black colony of Timbuctoo in New York, now placed equal blame for slavery on both North and South. “A sufficient reason we should not punish the conquered South is that the North was quite as responsible as the South for [slavery], the chief cause of the war . . . the mercenary North.”
Chief Justice Salmon P. Chase devised a legal strategy for avoiding the prosecution of Davis, one derived from the Fourteenth Amendment. Because Davis had already been punished by prohibiting him from holding public office, a new trial would amount to double jeopardy. Fearing Davis’s ability to perform before the Supreme Court, prosecutor Evarts offered to drop the case if Davis would not ask the Supreme Court to review. On February 26, 1869, Evarts informed Davis that all indictments would be dropped. Davis was a free man. In other words, the federal government could not prosecute the man who had led the rebellion for fear of losing the case.
Honor-bound, Davis had outwitted the federal government. In 2016 public opinion has belatedly passed judgment by provoking the removal of statues of Jefferson Davis from various sites. In 1869 the leaders of the Union preferred union over revenge.
Only one high-ranking Confederate official was in danger. That was Judah P. Benjamin, who at various times held significant positions in the Confederacy—secretary of war, attorney general, and secretary of state. The multilingual Benjamin, a brilliant lawyer who had argued before the Supreme Court on numerous occasions, was forced to leave the country because his Jewish ancestry made him vulnerable to American anti-Semitism. He fled to England where he pursued his legal career.
Another beneficiary of post-conflict cordiality was Raphael Semmes, the colorful captain of the famous Confederate raider Alabama, who was not prosecuted. Like its sister ships, the Shenandoah and the Florida, the Alabama had preyed on American merchant ships and virtually decimated the fleet. All the Confederacy’s war vessels had been purchased on cotton credit; all were built in England with full knowledge of the British government, by British employees of British companies, with British materials, and were manned by British seamen, much to the consternation of the American government.
Semmes, an American who was essentially a pirate, was arrested for treason on December 15, 1865, but was released without a trial. Afterward he taught literature and philosophy at what is now Louisiana State University before returning to his native Mobile, Alabama, to practice maritime law.
If America had any hope of enforcing black rights, a significant military presence in the South would have been necessary after the war. In the spring and summer of 1866 serious race-related riots broke out in Norfolk, Vicksburg, Nashville, Charleston, Memphis, and New Orleans. Because the federal government viewed these disturbances as a possible incipient insurrection, it imposed a form of martial law that entailed dividing the South into military districts overseen by the United States Army.
This show of force sounds impressive, but reality reveals otherwise. It involved little commitment to protect the freedmen. During this period of military occupation, the army was reduced to a mere shadow of the fighting machine that had won the Civil War. Clearly the Republicans, the white Northern population, and President Grant were aware of the widespread racial violence in the South. They knew that troops had to manage a vast area in the enforcement of newly enacted laws. Yet Republicans presided over the dismantling of the Union Army in the South, which was reduced from 1 million men on May 1, 1865, to 152,000 by the end of the year. By the time of the 1868 elections it numbered 20,000; by 1871, 8,000; and at the close of 1876, 6,000. Other than a few aggregations in cities, the troops were dispersed in small units. In 1869 there were only 716 Union soldiers in Mississippi; Texas had 4,600, of which 3,000 were occupied with American Indian problems.
What attempts were made to guarantee legal protection for blacks? The Thirteenth Amendment, which abolished slavery, did not gain the requisite majority in the House of Representatives in April 1864. It finally passed by three votes on January 31, 1865, with copious doses of bribes and the pardons of Confederates. Thaddeus Stevens quipped that “the greatest measure of the nineteenth century was passed by corruption.” Even at that late date there was difficulty in providing a constitutional guarantee of freedom.
The Radical Republicans rode to victory in the elections of 1866 on the backs of Southern violence, the restrictive Black Codes enacted in the South, and the unpopularity of Andrew Johnson, the stubborn, irritable, anti-slavery, Southern-leaning Democratic president. Johnson was ultimately impeached by Congress, though he was found not guilty by one vote in the Senate. Nonetheless he lost his authority. He was succeeded as president by Ulysses S. Grant, who held office from 1869 to 1877. There remained plenty of time to execute an effective Reconstruction; Johnson was hardly to blame for Reconstruction’s failure.
After 1866, legislation provided a form of citizenship to the black population—but reality made a mockery of legislative language. Three compelling reasons propelled the enactment of black rights: (1) Protection would induce blacks to remain in the South. (2) Black suffrage would provide Republicans with an unassailable voter base in the South. (3) Black suffrage would not affect the North because of the small black population.
But the Reconstruction interlude was rife with hypocrisy. Republican (and sometime) Democratic congressman Samuel W. Moulton of Illinois supported civil rights legislation in order to contain freedmen in the South. “Whenever the colored man is completely and fully protected in the southern states,” Moulton reasoned, “he will never visit Illinois, and . . . every northern state will be depopulated of colored people as will Canada.”
In 1866 Roscoe Conkling, a New York senator and author of civil rights legislation, clearly pointed to the need to keep blacks in the South:
Four years ago, mobs were raised, passions were roused, votes were given, upon the idea that emancipated negroes were to burst upon the North. We then said, give them liberty and rights at the South, and they will stay there and never come into a cold climate to die.
The expedient support of white Northerners