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Secession on Trial
The Treason Prosecution of Jefferson Davis


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Part of Studies in Legal History

  • Date Published: November 2017
  • availability: Available
  • format: Hardback
  • isbn: 9781108415521

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About the Authors
  • This book focuses on the post-Civil War treason prosecution of Confederate President Jefferson Davis, which was seen as a test case on the major question that animated the Civil War: the constitutionality of secession. The case never went to trial because it threatened to undercut the meaning and significance of Union victory. Cynthia Nicoletti describes the interactions of the lawyers who worked on both sides of the Davis case - who saw its potential to disrupt the verdict of the battlefield against secession. In the aftermath of the Civil War, Americans engaged in a wide-ranging debate over the legitimacy and effectiveness of war as a method of legal adjudication. Instead of risking the 'wrong' outcome in the highly volatile Davis case, the Supreme Court took the opportunity to pronounce secession unconstitutional in Texas v. White (1869).

    • Engages with important historical questions
    • Explores the twists and turns of the secession issue refracted through Davis's case
    • Avoids legal and historical jargon while remaining a readable narrative
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    • Winner, 2018 Cromwell Book Prize, American Society for Legal History 

    Reviews & endorsements

    'The genius of Nicoletti's work is that the Davis case provides a window into the persistent belief in American minds (even in the North) that secession was possible. That belief made the trial and execution of Davis that much more problematic than scholars have seen. Nicoletti backs up these claims with unsurpassed knowledge of legal proceedings and impressive research.' William Blair, Director of Richard Civil War Era Center and Walter L. and Helen P. Ferree Professor, Penn State University, and author of With Malice Toward Some: Treason and Loyalty in the Civil War Era

    'Cynthia Nicoletti tackles a hugely important topic: the post-Civil War resolution of the legal status of the Confederacy. The prosecution of Jefferson Davis squarely posed the question whether the Confederacy had become a separate country by seceding. If it had, southerners insisted there could be no treason. If it had not, many of the war powers asserted by the North would be called into question. Nicoletti brilliantly tracks the efforts of jurists and politicians to work through momentous questions about the American constitutional order.' John Fabian Witt, Yale Law School, Connecticut, and author of Lincoln's Code: The Laws of War in American History

    'Nicoletti's beautifully written book studies a crucially important trial that never happened. She situates Davis's treason case in the wider context of public discussions about how to treat officials of the former Confederacy and what to do about secession. Law, as Nicoletti argues, was not separate from other aspects of life in this period; it was deeply implicated within them and, thus, inseparable from them.' Laura Edwards, Peabody Family Professor of History, Duke University, North Carolina and author of A Legal History of the Civil War and Reconstruction: A Nation of Rights

    'Using the proposed but abandoned trial of Confederate President Jefferson Davis after the Civil War as backdrop, this book explores the historical and legal complexities of that conflict, specifically asking whether the Confederate states actually left the US. … An outstanding book for collections on American history, the Civil War, and constitutional law. Highly Recommended.' D. Schultz, Choice

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    Product details

    • Date Published: November 2017
    • format: Hardback
    • isbn: 9781108415521
    • length: 356 pages
    • dimensions: 242 x 163 x 25 mm
    • weight: 0.62kg
    • availability: Available
  • Table of Contents

    1. The imprisoner's dilemma
    2. Two lions of the New York Bar
    3. O'Conor's bluff
    4. The Civil War as a trial by battle
    5. The return of the rule of law
    6. Speed issues an opinion
    7. Public opinion and its uses
    8. Thaddeus Stevens, secession, and radical reconstruction
    9. Underwood and Chase
    10. Secession and belligerency in Shortridge v. Macon
    11. Richard Henry Dana comes on board
    12. The reach of the prize cases
    13. Two embattled Presidents
    14. O'Conor's triumph epilogue: Texas v. White and the 'settlement' of secession's constitutionality

  • Author

    Cynthia Nicoletti, University of Virginia
    Cynthia Nicoletti is an associate professor of law at the University of Virginia. Her dissertation won the William Nelson Cromwell Prize and the Hay-Nicolay Dissertation Award.


    • Winner, 2018 Cromwell Book Prize, American Society for Legal History 

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