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Putting Secession and Jefferson Davis on Trial with Cynthia Nicoletti

In May 1865, Union forces captured Confederate President Jefferson Davis in Irwinville, Georgia as the Civil War neared its end.

Davis had led the Confederate States of America since 1861. He was taken to Fortress Monroe in Virginia, clapped in irons, and given a Bible to read as he awaited his fate. He had waged war against the United States as the commander in chief of a rebel force, and the Constitution was clear: This was treason. And treason was punishable by death.

On the surface, you might think that the federal prosecution of Davis for treason would have been a slam dunk.

In fact, Davis’s conviction was far from certain.

On today’s episode, Dr. Cynthia Nicoletti joins Jim Ambuske to discuss her recent book, Secession on Trial: The Treason Prosecution of Jefferson Davis.

Nicoletti is a Professor of History and the Class of 1966 Research Professor of Law at the University of Virginia School of Law.

As you’ll hear, Nicoletti’s book isn’t about whether or not secession was legal or illegal - that question was decided on the battlefield and in a later Supreme Court decision - rather, it’s about the fundamental questions that Davis’s prosecution raised about the rule of law and democracy as the United States began rebuilding itself in the years after the war.

Ensuring that Davis received a fair trial, even if the prosecution lost, would have been a hallmark of the rule of law. But if the prosecution lost, would that validate secession and deny the Union’s permanence? As it turns out, both the prosecution and the defense maneuvered to avoid putting these larger questions before a jury.

The trial never happened. Nicoletti helps us understand why.

About Our Guest:

Cynthia Nicoletti is a legal historian and professor of law at Virginia Law. She has received numerous awards and fellowships, including the William Nelson Cromwell Prize for the best dissertation in legal history, awarded by the American Society for Legal History in 2011. Her book, Secession on Trial: The Treason Prosecution of Jefferson Davis, won the 2018 Cromwell Book Prize, given by the William Nelson Cromwell Foundation each year for excellence in scholarship to an early career scholar working in the field of American legal history.

About Our Host:

Jim Ambuske leads the Center for Digital History at the Washington Library. He received his Ph.D. in history from the University of Virginia in 2016 with a focus on Scotland and America in an Age of War and Revolution. He is a former Farmer Postdoctoral Fellow in Digital Humanities at the University of Virginia Law Library. At UVA, Ambuske co-directed the 1828 Catalogue Project and the Scottish Court of Session Project.  He is the co-author with Randall Flaherty of "Reading Law in the Early Republic: Legal Education in the Age of Jefferson," in The Founding of Thomas Jefferson's University ed. by John A. Rogasta, Peter S. Onuf, and Andrew O'Shaughnessy (Charlottesville: University of Virginia Press, 2019). Ambuske is currently at work on a book entitled Emigration and Empire: America and Scotland in the Revolutionary Era, as well as a chapter on Scottish loyalism during the American Revolution for a volume to be published by the University of Edinburgh Press.