Ep. 66 Uncivil: How Lack of Punishment for Confederate Leaders Set a Dangerous Precedent

I recently stumbled across a photograph of Confederate president Jefferson Davis with his family. He is sitting on the porch of his Mississippi home bouncing his granddaughter on his knee while a Black woman stands behind him in a servants uniform. I was somewhat shocked to learn that this photo was taken in 1885... 20 years after the Civil War. Davis had been the president of the Confederacy. He had waged war on the United States, a war that cost the lives of 700,000 Americans. He had committed the highest form of  treason. And yet, here he was, relaxing on his porch as if nothing had changed. Join me this week to uncover what happened. Why weren't Confederate leaders punished for their crimes? What repercussions has that had? What precedent did it set? And how it's all affecting us now much more than you probably realize! 

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Transcript

In November of 1867 Jefferson Davis, former president of the Confederate States of America, staggered into the courthouse in Richmond, Virginia. He knew this room well. Richmond was the capital of the Confederacy and this very courthouse had served as its headquarters. The courtroom he now stood in was their old war room. He could still see the walls plastered with maps in his mind. His men huddled as they strategized, planning their next attack. Davis himself had used the Judge’s chambers as his presidential office. He hadn’t set foot in this room in over two years, not since April 2, 1865, the night that Richmond fell. Now, he wasn’t here as a president. He was here as a prisoner, a former US senator from Mississippi turned rebel leader who had waged war on the United States and lost. He was here facing charges of treason, a crime which, until now, had always been punishable by death. But, did you know, Davis was released on bail that day, returned to his Mississippi mansion, and never had to face those charges? Did you know he lived out his remaining years in luxury, was given a hero’s burial, and had statues erected of him all over the American south? Let’s fix that.   

Hello, this is Shea LaFountaine and you’re listening to History Fix where I discuss lesser known true stories from history you won’t be able to stop thinking about. This topic has been on my mind for a while. Actually it’s been on my mind since researching episode 50 about Mary Richards. Quick refresher, Mary was an enslaved woman living in Richmond, Virginia during the Civil War who acted as a Union spy, helping Union prisoners escape and passing information on to Union forces. While I couldn’t confirm this next bit, Mary was rumored to have worked in the Confederate White House, serving the family of Confederate president Jefferson Davis. In 1860s Virginia, it was illegal for black people to learn to read or write, but Mary was secretly highly educated and was said to have a photographic memory. With these stealth abilities, she was able to read and memorize sensitive documents as she was cleaning, and pass that information on to the Union. Now whether that’s 100% true, I don’t know, that’s just how the story goes. Nothing about spies is ever really certain. 

But, I’m rehashing all of this because, as I searched in vain for some sort of picture, photo, portrait, whatever of Mary Richards that doesn’t exist, I stumbled upon a photograph of Jefferson Davis with his family. And at first I was like “what? No way!” because there is a black woman standing behind the family wearing an apron and a bonnet, she’s clearly some form of servant. And for a split second I thought “could this possibly be Mary?” But then I checked the date of the photograph - 1885. No, Mary wasn’t even in Richmond anymore in 1885. It couldn’t be Mary. But then another thought hit “wait 1885? This was 20 years after the Civil War ended and look at this dude.” He’s sitting on a porch with his wife, his daughter and three of his grandchildren literally bouncing a baby on his knee with a black maid standing behind him. She’s not enslaved because slavery was illegal in 1885 but she’s standing there in a servants uniform, ready to serve him all the same. And it’s like nothing at all has changed. And it occurred to me, I had no idea what had happened to Jefferson Davis, Robert E. Lee, and the rest of the Confederate higher ups after they lost the Civil War. I guess I just assumed they went to prison, were tried for treason, executed, something? But no, here was Jefferson Davis 20 years later, sitting out in front of his Mississippi mansion, bouncing his granddaughter on his knee while a black woman catered to his every need. I was stunned. And then I went down a rabbit hole. I found a photo from his funeral procession in New Orleans after he died in 1889, you’d think the King of England had died - the crowd that gathered, soldiers marching in uniform, the ornate carriage that housed his coffin hung with American flags which I found interesting, a fleet of horses draped in white. The man lived out his life in peace and luxury and was given a hero’s funeral. How was this possible? This man turned against his own country, committed treason, headed a war that cost the lives of 700,000 Americans, the deadliest war in US history with more American casualties than World War I and World War II combined. How was this possible and why had I never realized it?

I was curious to find out if others knew the fate of Jefferson Davis so I reached out on Instagram and, with a few exceptions cause I do have a history fan following after all, most responses were just what I expected “nope,” “no idea,” “never even thought about it.” I even asked my husband Joey who is admittedly NOT a history fan. He literally could not care less about history, we’re working on it. Here was his response: 

Shea: “Okay the question is what do you think happened, it’s like so silly to ask you this, what do you think happened to Confederate president Jefferson Davis after the Civil War? 

Joey: “I don’t know who that is. I don’t even know, I don’t even know when the Civil War was. Like I have no idea what to say to that. That’s the truth.” 

So I had to feed him a little more context. 

Shea: What do you think would happen to someone who commits treason against their country so like goes to war with their country, tries to sabotage the country in some way. What do you think would happen specifically in the 1860s?

Joey: They would get in twubble, I don’t think you’re gonna get away with that. 

So the consensus is most people don’t know, or haven’t realized, that Jefferson Davis went on to live a cushy life of luxury and we need to fix that because that lack of action, lack of response, lack of punishment, has caused repercussions that are very much still affecting us today. I’ll come back to that later. Now you may be wondering, okay the Mary Richards episode was back in February, why did you wait until June to do this episode. Well, I set it aside on purpose because I wanted to cover it in honor of Juneteenth, which is on Wednesday. Juneteenth, short for June nineteenth, is an American holiday that honors the end of slavery in the US. The date itself refers to the day in 1865 that US troops arrived in Galveston, Texas, took control of the state and ensured that all enslaved people were freed. Because, although Abraham Lincoln technically freed everyone when he signed the Emancipation Proclamation in January of 1863, it didn’t really do a whole lot, in practice. In Texas, which didn’t see much action during the war or have much of a Union presence at all, slavery continued, business as usual, so much so that enslavers from other states relocated to Texas because they believed they would be able to continue enslaving people there. According to a History.com article by Elizabeth Nix quote “After the war came to a close in the spring of 1865, General Granger’s arrival in Galveston that June signaled freedom for Texas’s 250,000 enslaved people. Although emancipation didn’t happen overnight for everyone—in some cases, enslavers withheld the information until after harvest season—celebrations broke out among newly freed Black people, and Juneteenth was born. That December, slavery in America was formally abolished with the adoption of the 13th Amendment.” end quote. In 2021 Juneteenth became an official federal holiday in the United States. So in honor of Juneteenth, in honor of the end of slavery, finally, I’m bringing you the story of a man who tried to keep that from happening and basically got away with it so that we might learn from the mistakes of the past and apply them to the now. 

Jefferson Davis was born in 1808, the tenth and youngest child in his family. Although he was born in Kentucky he was raised on a plantation in Mississippi. His family were planters which is a polite way of saying enslavers. I’ve always felt the term is a bit misleading, because when you hear “planter,” you think of some honest, humble, farmer out there in overalls tucking seeds in the ground himself. No, planters owned plantations and enslaved people to work them. There was a lot of money to be made in agriculture in the south and if you didn’t have to pay your labor, you could get quite rich as a planter so I wouldn’t use either honest or humble to describe them. Davis went to West Point in 1824 which is a well known US military academy. He graduated 23rd out of 34 in his class. Not that it matters just, he wasn’t like top of the class or anything. After that he served in the Black Hawk War under Colonel Zachary Taylor who would go on to be president himself briefly in 1849. During this time, Davis met Taylor’s daughter Sarah and married her in 1835 against her father’s wishes but she died of malaria a few months later. He retreated to his Mississippi cotton plantation and lived a secluded life enslaving people for the next decade before he married his second wife, 18 year old Varina Howell. He was 37. The same year of that marriage, 1845, Davis was sent to the US House of Representatives for Mississippi but he resigned a year or so later to fight in the Mexican war. After that, he was elected to the US senate in 1847.

In 1853, president Franklin Pierce appointed Davis as US Secretary of War where, according to the American Battlefield trust, he quote “served with distinction and was recognized as one of the most capable administrators to hold the office.” He returned to the Senate in 1857 and was a quote “vocal proponent of state’s rights” until Mississippi withdrew from the Union in 1861. States rights. Okay, this is a blanket term used by southerners typically which mostly means slavery. He was a vocal proponent of slavery. Let’s call a spade a spade. Were there other state’s rights? Yes. But the main one they were arguing over was slavery. It was. It undeniably was. Because their whole way of life in the south, their wealth, their privilege, all of it was built on slavery and without slavery it would crumble. In Davis’ farewell address to the US senate he said quote “the theory that all men are created free and equal [has been] made the basis of an attack upon her social institutions,” end quote. The social institution here being slavery. So that was his justification for leaving the Union. He felt they were unfairly using this as justification to attack slavery. Notice he calls it a theory. The theory that all men are created free and equal. 

The Confederate Congress in Montgomery, Alabama appointed Jefferson Davis provisional president of the Confederacy soon after. He had the credentials and he was popular with the people but he himself did not want the presidency. He wanted to be a military leader but they were like “you’re doing it,” so that was that. He was inaugurated for a 6 year term. Alexander Stephens who claimed that the cornerstone of the new government quote “rests upon the great truth that the negro is not equal to the white man,” was made Vice President. This is what these people believed. It is in writing. Davis’ popularity as president didn’t last. According to the American Battlefield Trust, “His early popularity was a result of war fervor and he did not have the personality necessary to sustain it. He was impatient with people who disagreed with him, and he had the unfortunate habit of awarding prominent posts to leaders who appeared unsuccessful. Davis’ loyalty to these people led to bickering and quarrels throughout his administration. In addition, he was plagued by chronic illness,” end quote. 

On the night of April 2, 1865, Davis fled Richmond as Union forces advanced on the city. Seven days later Confederate General Robert E. Lee surrendered to Union General Ulysses S. Grant in Appomattox, Virginia and the war was officially over. US President Abraham Lincoln didn’t seem too concerned with finding Davis. He reportedly told Union General William T. Sherman quote “I’m bound to oppose the escape of Jefferson Davis but if you could manage to have him slip out unbeknownst-like, I guess it wouldn’t hurt me much.” And I had to read that quote a few times because it seemed like Lincoln was saying “go ahead and let him go, but make it look like we searched for him.” “I’m bound to oppose the escape of Jefferson Davis but if you could manage to have him slip out unbeknownst-like, I guess it wouldn’t hurt me much.” Why would Lincoln want Davis to slip away? Wouldn’t he want to capture him? Punish him? Make an example out of him? I think Lincoln knew that prosecuting Davis was going to be a problem for reasons we’ll get into soon and that it might just be easier if the man fled and lived out his days in hiding so they didn’t have to deal with him. Lincoln was a wise man. But it was actually Lincoln’s death, his assassination soon after, that led to a manhunt for Jefferson Davis. Vice President Andrew Johnson, who became president when Lincoln was killed, believed that Davis was involved in the assassination. Which makes sense. The president gets shot, you go “hmm… who might have a motive to do this? Who would want the president of the United States dead? Oh maybe his greatest enemy,” and so the natural conclusion was that Davis was somehow involved. Johnson issued a proclamation that Lincoln’s assassination had been quote “incited, concerted, and procured by” Davis and offered a hundred thousand dollar reward for his capture and arrest. Which is almost two million dollars today. 

Union forces swiftly captured Davis less than a month after Lincoln’s assassination. They caught him trying to sneak out of a tent in Georgia, wearing his wife’s shawl as a disguise. And I’m sure people thought, you know, “well that’s it for him.” Captain Henry Wirz, who was the commander of a notorious Confederate prison in Andersonville, Georgia had been captured 3 days before Davis. Apparently 13,000 Union soldiers had died of starvation and exposure while in Wirz prison and he was tried before a military commission, found guilty of conspiracy and murder, war crimes, and hanged. So I’m sure people are thinking, “dang, what are they going to do to Jefferson Davis, the leader of the entire Confederacy?” But some already had their doubts. Massachusetts Senator Charles Sumner said quote “I never cease to regret that Jefferson Davis was not shot at the time of his capture,” end quote. Columbia law professor Francis Leiber also had doubts, writing in a letter to Sumner quote “suppose he is not found guilty; is he not, in that case, completely restored to his citizenship, and will he not sit by your side again in the Senate? And be the Democratic candidate for the next presidency? I do not joke,” end quote. 

Which, I gotta pause for a second to address that Democratic candidate thing. The whole democrat/republican thing gets really misconstrued during this time in history because they were basically opposite from what they are today. Jefferson Davis was a democrat and Abraham Lincoln was a Republican but what they believed in politically more closely aligns with the inverse of that today, if that makes sense. Today, based on what the parties stand for today, Davis would be a Republican and Lincoln would be a Democrat. But this little inconsistency is often used by modern Republicans to basically attack modern Democrats out of ignorance or maybe they aren’t ignorant, maybe they are just withholding that because it suits their argument. I posted about this topic, this whole Jefferson Davis thing in a history related Facebook group just sort of feeling out what people knew about it and the first response I got said quote “Yeah, nothing was done. Which is why the US has the problems it has today with the MAGA/neo confederate right wing,” end quote. To which someone else replied quote “slavery: democrats, confederacy: democrats, the KKK: Democrats… party founded on the promise of ending slavery: republican, emancipation proclamation: republican, party of the union: republican…” and he goes on and on. They both sound like children honestly but the rebuttal really is flawed because the democratic party in 1860 was the opposite of the democratic party today. It was much more closely aligned with today's republican party. So the labels are misleading. 

So that’s why this Leiber guy feared that Davis would run as democratic candidate for president. He was a democrat. An 1860s democrat. Leiber was actually kind of a big deal himself. He was a law professor and Abraham Lincoln actually called on him to come up with a set of rules of war during the war that were known as the Leiber Code. This code would go on to form the framework of the Geneva Convention which established international laws and standards for how people should be treated during times of war. After Lincoln’s assassination, when they were trying to connect Davis to the crime, Leiber was made head of the archive office. He pored through Confederate records, trying to connect Davis to the assassination but he couldn’t. Because, come to find out, he had nothing to do with it. Or, at least, there’s no evidence that he had anything to do with it. So Johnson decides to try Davis for treason instead of war crimes. 

According to a New Yorker article by Jill Lepore quote “the Constitution defines treason as levying war against the United States or giving aid and comfort to its enemies. If Davis couldn’t be convicted of treason, the Philadelphia Inquirer remarked, “we may as well . . . expunge at once the word from our dictionaries.” Although Congress had modified the definition of treason in 1862, there remained ambiguity about what distinguished it from rebellion or insurrection. Lieber hoped that the prosecution would “stamp treason as treason,” but he was worried. “The whole Rebellion is beyond the Constitution,” he maintained. “The Constitution was not made for such a state of things.” end quote. Because this really was unprecedented. Half the country had technically committed treason but you’re not going to hang half the country, so what do you do? In 1864 Lieber came up with a list of proposed amendments that he passed on to Congress. One of those would officially end slavery. That became the thirteenth amendment. He wrote to Massachusetts senator Charles Sumner quote “Let us have no ‘slavery is dead.” It is not dead. Nothing is dead until it is killed.” end quote. I love this guy. Lieber was from Berlin, he wasn’t even a native born American. He was a Jewish guy from Berlin and he just somehow seemed to understand the situation in America better than anyone. Another amendment he proposed guaranteed equal rights regardless of race and this became the fourteenth amendment. He proposed another amendment trying to clarify the relationship between treason and rebellion that said basically any involvement in armed resistance against the US government was a quote “high crime,” but this one was never ratified and so the ambiguity, is it treason, is it insurrection, is it rebellion, continues to this day. 

So Jefferson Davis has been captured. They can’t prove he had anything to do with Lincoln’s assassination but they’re still going to try him for treason. They hold him in prison in Fort Monroe, Virginia for two years while they try to figure out how the heck they are going to go about this trial. Many wanted him to be tried by a military commision like Wirz had been, that guy who ran the prison who was hanged for war crimes. But others argued that military commissions couldn’t conduct treason trials during peacetime. It had to be in the regular old civilian courts. And typically that meant holding the trial where Davis had committed the crime, Richmond, Virginia. But that obviously poses a problem. Richmond was the capital of the Confederacy. It was full of Confederate sympathizers. Would they, could they possibly convict Davis even if he was guilty? They were surely incredibly biased in Richmond. Lieber tried to fix this problem with another proposed amendment that read quote “Trials for Treason or Sedition shall be in the State or district in which they shall have been committed unless the administration of justice in the respective State or district shall have been impeded by the state of things caused by the commission of the criminal acts which are to be tried.” Basically saying, if it’s impossible to get a guilty verdict in that state or district because the people are so biased, so swayed by the criminal acts, then you can hold the trial somewhere else. But, once again, this amendment went nowhere. In the end it was decided that the trial would happen in Richmond regardless. Supreme Court Justice Salmon P. Chase presided in Richmond after all and he was a fierce abolitionist. The judge, John C. Underwood, was also an abolitionist who had declared that quote “all distinction of color must be abolished.” He wanted to sell the Davis’ estate to formerly enslaved people for a half dollar an acre. He was absolutely despised by white Virginians. So they thought these guys would help balance things out.

The prosecution was headed up by district attorney Lucius Chandler who was one of only two lawyers in Virginia who hadn’t been disqualified from practicing in a federal court. He had recently moved to Virginia from Maine so he had never supported the Confederacy. He also had virtually no trial experience. They were like “Welp, you wouldn’t be our first choice for something like this but you’re the only guy who isn’t banned so I guess it’s you.” And William Evarts, a lawyer from New York was to direct the prosecution but he mostly just piled all the work on Chandler, the dude who had no idea what he was doing and was basically just here by default. 

Jefferson Davis, who is in prison, gets his wife Varina to secure Charles O’Conor as his lawyer. O’Conor was from New York but he was a pro-slavery Confederate sympathizer. He was very famous as far as lawyers go and he was despised by Black Americans which is no surprise really. His strategy for the trial was just to delay it as long as possible hoping that things would simmer down in the wake of the end of the war and the assassination of the president. He needed things to cool off some before they went to trail. 

The jury was a problem because, once again, who in Richmond, Virginia, the capital of the Confederacy, was going to convict Jefferson Davis of treason? At that time Black men were banned from serving on a jury and I say men because women, of any race, were nowhere near serving on juries, like a hundred years out. But they know if they assemble a jury of all white Virginians, there’s no point in even holding a trial. But that’s about to change because they’re pushing these civil rights, equal rights amendments through, the fourteenth amendment, the fifteenth amendment and finally Black men can serve on a jury. Another important addition that was made to the proposed fourteenth amendment was that anyone who had held federal office that participated in insurrection or rebellion could no longer hold public office. The draft actually said quote “The President and Vice-President of the late Confederate States of America so-called . . . are declared to be forever ineligible to any office under the United States.” but that specific line was cut from the final version. And even then the former Confederate States refused to ratify the 14th amendment at first until they basically made them do it by refusing to allow them to rejoin the Union unless they did.

So now they can put Black men on the jury for Davis’ trial. Perhaps O’Conor’s stalling strategy backfired a bit there. Of the 18 jurors, 6 of them were Black. The first Black men to serve on a federal grand jury and nearly a quarter of the 200 spectators present at the 1867 trial were Black. The presence was felt. The New York Times Tribune wrote quote “The trial of Jefferson Davis, for leading the Rebellion in behalf of Slavery, should be before a jury made up in part of freedmen, if only for the historic justice, not to say the dramatic beauty and harmony, of such a denouement,” end quote. But obviously not everyone agreed. One editorial posed the question quote “If Davis is to stand before an [n-word] jury, what becomes of the notion that a man is to be tried by a jury of his peers?” end quote. So we’re in Richmond but we have Black jurors, we have abolitionist judges, they’re halfway trying to make it fair, so what happened? Well Davis walks into the courtroom, his old war room, the room from which he attacked the country that’s now trying him for treason. He sees the Black jurors and smiles, which, ew, and then the prosecution says that they aren’t prepared for the trial. Davis is released on bail, court dismissed and that’s that. Davis’ lawyer O’Conor wrote to his wife quote “the business is finished. Mr. Davis will never be called up to appear for trial.” And he was right. The prosecution made no attempt to prepare for trial. They didn’t do any investigating. They didn’t gather any evidence to prove the treason accusations, not that it would have been hard at all. Chandler, the inexperienced District Attorney was accused of being a secret Confederate sympathizer making money off selling pardons. He later committed suicide, drowned himself by filling his pockets with stones. President Johnson was impeached for, among other things, “intentionally derailing the Davis prosecution” but he eventually pardoned quote “every person who directly or indirectly participated in the late insurrection or rebellion,” end quote. So the case was dropped and that was that. 

Lieber had predicted quote “The trial of Jefferson Davis will be a terrible thing. Volumes—a library—of the most infernal treason will be brought to light, Davis will not be found guilty, and we shall stand there completely beaten,” end quote. But in the end, it was even worse than that. They never even brought those volumes of infernal treason to light because they never even had an actual trial. Why? Why did they drop the ball on this so hard? Lot’s of reasons. It’s real complicated, as Lincoln had anticipated quote “if you could manage to have him slip out unbeknownst-like, I guess it wouldn’t hurt me much.” He knew this was going to be a nightmare. First of all, the 6 Black jurors were going to be a problem. Lepore says quote “But it may well be that the prospect of Black men on the jury led the government to abandon the prosecution, fearful that Black men issuing a verdict that condemned a white man to death would inflame the country beyond any possibility of repair.” But the other reason they didn’t pursue justice was because of a catch 22. Legal historian Cynthia Nicoletti argued in her book, “Secession on Trial: The Treason Prosecution of Jefferson Davis” that quote “to a charge of treason, Davis was expected to respond that he had forfeited his American citizenship when Mississippi seceded from the United States, and you cannot commit treason against another country… The worry that an acquittal would have established the constitutionality of secession meant that interest in prosecuting Davis simply evaporated” end quote. So basically, if you can get away with treason by seceding from the Union first, then secession starts looking like a good option and might become a recurring thing which isn’t good. But also that same claim would have totally derailed what the US was trying to do in the South with Reconstruction. That plan, going in and fixing things in the southern states relied on being able to treat the former Confederate states as a conquered nation. Lepore explains quote “If a trial were held and Davis argued that he could not have committed treason because, after Mississippi seceded, he was no longer a U.S. citizen, the government would have to argue that he had always been a U.S. citizen. But if he had been a U.S. citizen during the war, then the Confederacy had not been a foreign belligerent, and the U.S. could not justify its occupation of the region as a “conquered province.” Catch 22. So they just let him go. They let them all go. 

Davis lived out the rest of his life at his Mississippi mansion surrounded by family and servants. He could never hold public office again… wah. Confederate General Robert E. Lee lost his right to vote and his property in Arlington, Virginia. It’s now part of the Arlington National Cemetery. Although in 1874, Lee’s descendants sued the government for the loss of their estate and the Supreme Court ruled in their favor. They gave the land back. But it was eventually sold to the US government. As for Lee, he became the president of Washington College, now called Washington and Lee University in Virginia. Which, ok? You’re a failed military general, sure you’d make a great president of a college, I guess? I don’t get it. Commander James Longstreet became president of the Great Southern and Western Fire, Marine and Accident Insurance Company. He later served as Ambassador to the Ottoman Empire and as U.S. Commissioner of Railroads. Nathan Bedford Forrest, a millionaire enslaver who equipped an entire Confederate military unit at his own expense during the war became President of the Selma, Marion and Memphis Railroad. He also founded the Ku Klux Klan. General Joseph E. Johnston became President of the Alabama and Tennessee River Rail Road Company. Private John S. Mosby became the presidential campaign manager for Ulysses S. Grant in Virginia, consul to Hong Kong, lawyer for the Southern Pacific Railroad and the Department of the Interior and the Department of Justice. Major General Joseph Wheeler served in the United States House of Representatives and was appointed as a Brigadier General of U.S. Volunteers during an 1898 conflict with Spain. Vice President of the Confederacy Alexander Stephens was elected to the US senate in 1866. And just to clarify, all of this is happening after the Civil War, after all of these people waged war on the United States and yet they’re all being made presidents of things and ambassadors and consuls and senators. It is wild. 

And yet, and yet the fourteenth amendment which was eventually ratified says, and I quote section 3 of the fourteenth amendment “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability,” end quote. Which, okay Stephens was elected as senator before this passed otherwise he would have been banned. Davis was banned from holding office again because of this. And his defense was prepared to argue that, because the fourteenth amendment banned him from holding office, that was punishment enough and he shouldn’t also be tried for treason. That was part of their defense. He’s been punished enough. He can never hold office again. Drop the treason thing. I saw a t-shirt ad online recently cause Facebook has figured out that I’m into history so they’re throwing all kinds of history stuff at me which I don’t hate. The shirt had an image of George Washington on it and it said quote “it’s only treason if you lose.” And I was like haha that’s clever except no. Because Jefferson Davis did lose and it still wasn’t treason.

And here’s where we get into the modern day repercussions. And I don’t like to talk about politics, I don’t. It’s super polarizing. But I can’t not mention this connection made by Jill Lepore in that New Yorker article I keep referencing which is called “What happened when the US failed to prosecute an insurrectionist ex-president.” Some argue that former US President Donald Trump was involved in what could only be called an insurrection on January 6, 2021 at the Capitol Building in Washington DC, the purpose of which was to prevent the certification of the Electoral College vote after he lost the 2020 presidential election to Joe Biden. Now, according to the fourteenth amendment, according to the defense even of Jefferson Davis, anyone who has held office and then quote “engaged in insurrection or rebellion” can no longer hold office without a two thirds vote by Congress. 28 states are arguing that Donald Trump, because of this, should not be able to run for president in 2024. But he’s not actually being tried for insurrection. He’s being tried for conspiracy to defraud the US and conspiracy against the rights of citizens but not insurrection. But even so, this trial probably won’t happen before the November election and if he is elected president, he can just pardon himself anyway. 

The failure to prosecute Jefferson Davis set a dangerous precedent. It set a precedent that powerful government officials can get away with treason or insurrection at least. Lepore says quote “The insurrection at the Capitol cost seven lives. The Civil War cost seven hundred thousand. And yet Jefferson Davis was never held responsible for any of those deaths. His failed conviction leaves no trail. Still, it had consequences. If Davis had been tried and convicted, the cloak of Presidential impunity would be flimsier.” end quote. The lack of any real punishment for Confederate higher ups also “bolstered the cause of white supremacy.” I mean Nathan Bedford Forrest helped found the KKK after the Civil War and became its first Grand Wizard. He should have been in jail or dead but no. He was president of a railroad and running violent extremist hate groups on the side instead. Because these guys were never punished, they were allowed to go down in our collective historical memory, or at least the collective historical memory of the American south, as heroes. Robert E. Lee is a hero in a lot of people’s minds, still, today. Statues were erected all over the place. There are no Hitler statues in Germany, I can tell you that. In 2020, Black Lives Matter protestors pulled down a statue of Jefferson Davis in Richmond’s Monument Avenue, defaced it, splattered it with paint. It’s now on display in a room at Richmond’s Valentine museum which was founded by the man who sculpted the statue to begin with. You know, keep it around lest we forget. We don’t want to forget Jefferson Davis. That’s the whole point of this episode. But we don’t want to honor him either. Because can you imagine? This man went to great lengths, resigned from the US senate, seceded from the country, relinquished his citizenship sort of, headed a war that resulted in the deaths of 700,000 people, faced down a possible treason conviction and probable execution for it. He went through all of that because he so firmly believed that white people were superior to Black people, that Black people did not deserve to be treated equally, and that the south should be able to continue enslaving Black people. This man had built his fortune, his estate, his cushy life off the unpaid labor of the Black people he enslaved and he was willing to go to the greatest possible lengths to preserve the institution of slavery for his own benefit. Can you imagine passing that statue each day on your way to work as a Black American living in Richmond, Virginia knowing what that man had done to your ancestors, what he thought of them, what he would think of you if he were still alive? If he had been convicted of treason, if he had been executed or imprisoned for life, there never would have been a statue. He would have been a pariah. But the leniency, the laziness, the fear that let him off, that let all of them off made them heroes, role models for generations of southerners and paved the way for white supremacy to continue for over a century. And it might even be paving the way for a presidential candidate with two impeachments and 34 felony convictions who has been accused of a total of 91 felonies to run for and win the presidency of the United States of America this year. And maybe you’re for that and maybe you’re against it but either way, it should give you pause. Because even if you believe Trump is the right man for the job, what kind of precedent is that setting for the future? 

When I was trying to pry something out of Joey, what do you think happened to Jefferson Davis? What do you think would happen to someone who committed treason and he was having a hard time taking it seriously. He said “why does it matter? It already happened. We can’t stop it. Why do we care about that now?” And the truth is, everything that happened in the past matters. It doesn’t just go away, become inconsequential with the passage of time. It becomes the foundation, the roots upon which the future is built. And if the foundation is cracked, if the roots are rotten, everything that comes after is unstable, spoiled, tainted. But not irreparably so. We can fix it. But we have to know the history. We have to recognize the injustice. We have to topple the statues. 

Thank you all so very much for listening to History Fix, I hope you found this story interesting and maybe you even learned something new. Be sure to follow my instagram @historyfixpodcast to see some images that go along with this episode and to stay on top of new episodes as they drop. I’d also really appreciate it if you’d rate and follow History Fix on whatever app you’re using to listen, and help me spread the word by telling a few friends about it. That’ll make it much easier to get your next fix.  

Information used in this episode was sourced from The New Yorker Magazine, Penn State University, the American Battlefield trust, the National Park Service, History.com, Rice University, and the US Constitution. As always, links to these sources can be found in the show notes.