But Greeley’s two central contributions to Davis’s case lay elsewhere. His Tribune published numerous pieces presenting Davis in a positive light and urging a prompt trial or bail. He also set about to raise money to support bail for Davis, should that development ever occur. In this endeavor he was astonishingly successful. Among those joining him, Gerrit Smith seemed even stranger than Greeley. An extremely wealthy New Yorker, Smith before the war had been a major underwriter for abolitionists. But even though he had opposed slavery as vigorously as Davis upheld it, Smith asserted that he would enthusiastically provide funds for Davis’s bail. In the late summer of 1866 he informed President Johnson that Davis’s long confinement without a trial did “deep dishonor to the Government and the country.” The railroad baron and financial tycoon Cornelius Vanderbilt also signed on. Among the richest men in the country, Vanderbilt placed his name and money in Greeley’s camp.
For an undertaking of this magnitude Greeley had multiple motives. He talked about his commitment to fairness, and without question he desired rapid reunion and sectional reconciliation. To that end, he saw Davis’s speedy trial or release as a significant step. Some asserted the perception of commercial advantage prompted him, but others said his pro-Davis acts sharply cut into his revenues from the Tribune. Whatever the mix of reasons, Greeley’s work substantially aided Davis’s cause.54
Davis’s legal team was also hard at work. O’Conor led, but he received able assistance from George Shea, another New York City attorney, and William Reed of Philadelphia; in addition, he made use of others, including James Lyons, a prominent member of the bar in Richmond, and young Burton Harrison, who acted as a courier and general aide. O’Conor wrote directly to Andrew Johnson requesting better treatment and proposing a plan that would result in bail for Davis. He also visited Chief Justice Chase searching for a way to get his client out of prison. All the while, the lawyers tried to coordinate their efforts with their political allies.55
Two beacons guided O’Conor and his associates. First, they did not believe that in a fair trial with an impartial jury Davis could be convicted of treason. But they did have concerns about the courtroom. Talk in Congress of changing the law to make it easier to find Davis guilty troubled them. They also worried that Judge Underwood, a well-known advocate of confiscating land of former Confederates and of extending political rights to the freedpeople, would pack the jury with men, white and especially black, of his own political persuasion.56
O’Conor spelled out his interpretation of what he saw as the basic legal issue. His study convinced him that the Constitution had adopted the construction of English statute law on treason. As a result, he was convinced Davis “could not be convicted unless it was for having levied war.” According to O’Conor, the case depended on whether in “any just interpretations” of the phrase, Davis had done so. O’Conor intended to argue that if Davis had, that act could not be separated from the war waged by both sides. For his construction to hold, he knew he had to prove that the United States had acknowledged the existence of “a public war.” He foresaw no difficulty in making that case in a court of law.57
The possibility of being put in the dock for treason did not terrify Davis. He never in 1861 or thereafter believed he had committed any treasonable act. In his mind, when he left the Union he had acted constitutionally, and he had led a legal, national war, the Confederate States against the United States. His attorneys’ conviction that they could triumph against any treason indictment in a court of law simply reinforced Davis’s own conception of what he had done. In a postprison letter to one of his lawyers, he stated that even when confined at Fortress Monroe, he remained steadfast. He rejected any suggestions of a petition for pardon, for he was “confident of the justice of our cause, and the rectitude of my own conduct.” Burton Harrison, who knew his former chief well, understood that part of Jefferson Davis wanted his day in court so that he could broadcast to the country the legitimacy and virtue of his cause. As Davis saw it, any fair trial had to result in his vindication. Losing that opportunity for formal justification would be a disappointment to him.58
But Davis’s attorneys recognized that no matter how sound their legal argument might be, it was politics, not law, that governed Davis’s case. From the outset, observing the situation closely, and in contact with political allies, O’Conor and his colleagues understood that the continuing and deepening conflict between the Republicans in Congress and the president held their client hostage. They realized that neither side was willing to bend on Jefferson Davis because each feared giving political ammunition to the other. O’Conor and company also knew early on that Chief Justice Chase would not hold court in Virginia until by his definition all military authority had ended. Although Davis’s attorneys fully comprehended the crucial role of politics, the vagaries frustrated them. Their hopes kept creeping upward, then plunging.59
Politics disrupted their plans. After the federal grand jury in Virginia indicted Davis in May 1866, his lawyers thought they could make a strong argument for bail. The case would be called in Judge Underwood’s court in June. Worried about its legal position and the absence of Chief Justice Chase, the government decided to ask for a continuance. Despite both the chief justice and the attorney general letting Judge Underwood know they approved, countering political pressure caused the hard-pressed Underwood to deny bail. His ruling grievously disappointed Davis’s counsel, who deputed Burton Harrison to carry the bad news to Fortress Monroe. The blow hit Davis hard, Harrison reported, “but he bore it in good part.”60
While Davis’s side was aware they had enemies in Congress and that President Johnson vacillated, they also believed that a quiet but effective foe in the president’s cabinet compounded their problem. O’Conor derided him as “most venomous malignant,” though without naming him. But O’Conor’s friends and associates identified their hidden adversary as Seward, who, according to William Reed, had the decisive influence on Judge Underwood.61
Davis’s defenders could only persevere and wait. Finally, in the spring of 1867, the legal and political currents seemed to flow toward them. Congress passed legislation assigning circuits to Supreme Court justices, removing a key reason for Chase’s refusal to sit in Virginia. Although what the chief justice might actually do could not be predicted, Davis’s counsel decided to try to bring their client to court in Virginia on a writ of habeas corpus, which they hoped would force either a trial or bail. The president, the attorney general, and the chief justice had signaled their willingness to accept a writ. In addition, Davis’s side scored a major triumph when with the influential encouragement of John W. Garrett, Secretary of War Stanton decided not to oppose a writ. He agreed that if presented with a legitimate writ, the army would relinquish control of Davis.62
Appearing before Judge Underwood on May 1, George Shea applied for a writ of habeas corpus. On that day Underwood issued the writ, returnable on May 13, by which date he assumed Chase would join him for the circuit court. A week later the War Department ordered General Burton upon receipt of a valid writ of habeas corpus to turn Davis over to the U.S. marshal or his deputies.63
While the writ was forthcoming, the holding of a trial was more problematical. Without guidance from his superiors, and unprepared to manage the case, Lucius Chandler, the federal district attorney, traveled to Washington for assistance and directions. Attorney General Stanbery said he had no intention of participating; he argued cases only before the Supreme Court. President Johnson allowed this stance, though it differed totally from that taken by Speed, who had planned to take the lead in the case. Stanbery considered the government’s special counsel William H. Evarts, an esteemed New York City lawyer, the attorney in charge. This position surprised Evarts, who had taken for granted that Stanbery would follow Speed’s policy. Chase remained elusive as to whether or not he would attend the May term of the court in Richmond. Although Judge Underwood stood ready and eager to proceed with the trial, the three responsible federal lawyers de
cided that no trial could take place. They knew they were not ready.
Having made that decision, they shared it with O’Conor. In a conference held in Washington, they informed him that a trial would not occur and that bail would be granted. Thereupon Evarts went to Richmond to tell Underwood what he did not want to hear. When court opened on May 13, the government would request a continuance and would agree to bail. O’Conor also headed for the Virginia capital.
Even before he met with Stanbery and his associates, O’Conor had put his team in motion. Although he had been schooled in exploded hopes, by mid-April he expressed optimism to Varina. Once Judge Underwood issued a writ of habeas corpus, O’Conor knew it would be obeyed. He dispatched Burton Harrison from New York to Fortress Monroe for the presentation of the writ. His legal colleagues also started for Richmond. On May 10 a U.S. marshal delivered the writ to General Burton, who accepted it. Harrison spent that Friday night in the fortress with the man he still served. He noted that the date, the tenth, marked the second anniversary of their capture.64
On Saturday morning, May 11, Davis walked out of Fortress Monroe for the first time since his incarceration. General Burton led Davis and his companions Varina, Burton Harrison, and Dr. Cooper to the wharf, where a crowd had assembled. No soldiers guarded the prisoner either en route to the ship or on board. On the trip up the James River, Davis had the freedom of the vessel. With news spreading about the special passenger, groups gathered at every landing to get a glimpse of him. At one the craft stopped, and a number of emotional women came on board “embracing and kissing [Davis].”65
Late in the afternoon the steamer reached Richmond and docked at Rockett’s Landing. Throngs welcomed the former president; troops were present to guarantee order. Davis got into a carriage with General Burton, Dr. Cooper, and Burton Harrison. A unit of mounted troopers followed. Varina rode in another carriage with James Lyons. General Burton had made previous arrangements with the proprietor for the Davises to stay at the Spotswood Hotel, unless the U.S. marshal demanded custody of the prisoner; he did not. Along the almost two-mile route from the landing to the hotel, masses filled the streets. There were no shouts, no huzzas, but when Davis’s carriage passed, men raised their hats and women waved handkerchiefs. At the Spotswood the owner showed the Davises to the same rooms they had occupied back in 1861. General Burton left his orderly at the door, but placed no restrictions on Davis.
That evening and the next day Davis received a multitude of visitors in his private parlor. They saw a pale man with gray hair and cheeks “thin and furrowed,” but eager to greet them. He embraced former friends with warmth and enthusiasm. On Sunday, Burton Harrison noticed the large number of pretty women who charmed Davis. “I observed,” he wrote his mother, “that he took delight in kissing the prettiest when they went out as well as when they went in.”
Monday, May 13—according to Harrison, feelings in Richmond had reached “fever pitch.” Early in the morning a host congregated in the two blocks between the hotel and the court, located in the Customs House, which had become the post office. The judicial proceedings were scheduled for eleven o’clock. Before ten, observers had packed the 40-foot-square courtroom on the third story of the Customs House. At that hour two companies of soldiers took up positions between the two buildings. General Burton led Davis from the rear door of the Spotswood and into a carriage for the short ride to court. Upon entering the Customs House, Davis was taken to the office of the United States attorney.
On the bench by himself, Judge Underwood called court into session at 11:18 a.m. The chief justice did not appear. Ten minutes later, escorted by General Burton and other officers, Davis entered and sat down alone, “flushed with excitement.” The marshal invited Harrison to sit by his former chief, and he moved to join Davis. Davis’s legal battery was in place: O’Conor, Shea, Reed, Lyons, and other colleagues they had invited. Evarts and Chandler represented the United States.
No surprises marked the occasion. As Harrison put it, “everything went according to our hopes” and the prearranged plan. General Burton formally delivered Davis to the court; Judge Underwood accepted him and relieved the general of further responsibility. Upon the judge’s directive, the deputy marshal gave the writ on the indictment to Davis, who handed it to O’Conor. O’Conor then asked “that the court will now order such proper course as justice may require.” He had received the indictment and wanted to know what came next. The judge desired to hear from the government. Evarts responded that the government intended no prosecution during the court’s current term. O’Conor requested bail; Evarts raised no objection. Judge Underwood declared the charge against Davis bailable. The government proposed $100,000; O’Conor said the defense could handle that sum, and added he had ten men present ready to stand for $10,000 each. The government suggested that some of the guarantors reside within the court’s jurisdiction. O’Conor replied that that requirement posed no problem.
After some discussion the judge announced that the court agreed on that amount and a partial residence requisite. He called on those prepared to act as sureties to come forward and sign the prepared document. Three men stood for $25,000 each—Horace Greeley, Gerrit Smith, and Cornelius Vanderbilt; ten others stood for $2,500 each. The condition of recognizance required Davis to appear at the Circuit Court term scheduled in Richmond for the fourth Monday in November. After the signatures were affixed, Judge Underwood instructed the marshal to discharge the prisoner.66
“The effect was electric,” recorded Harrison. The courtroom erupted with shouts, and people rushed toward Davis, who told Burton Harrison to get him away as quickly as possible. Taking Davis’s arm, Harrison guided him out of the chamber, through a passage, by the open door of what had been his presidential office, and down the same iron stairs he had used as president. An excited, cheering assembly waited outside.
Although hurrahs surrounded the return to the Spotswood, at the hotel people held back. Davis went back to his room, where his wife waited. After giving them moments alone, Harrison and the Reverend Minnigerode joined them and locked the door. All knelt in prayer. “We were all sobbing,” Harrison wrote. Then the doors were opened, and a legion of well-wishers poured in.
That night Jefferson and Varina left for Canada.
CHAPTER SEVENTEEN
“These Days of Our Hard Fortune”
Jefferson and Varina, with Burton Harrison in attendance, steamed up the coast to New York City. Pressing upon the former prisoner at his hotel, well-wishers wore him out. Harrison put him in a carriage and drove him to Charles O’Conor’s residence above the city on the Hudson River, where he could have quiet and rest. Harrison described Davis as “looking very thin and haggard and having very little muscular strength.” Even so, Harrison thought Davis’s appearance had improved since he left Fortress Monroe. Moreover, his spirits were good. Harrison was convinced that rest would restore his old chief.1
News of Davis’s release generated a torrent of letters expressing thankfulness for his freedom and sending him best wishes. The roster of writers included so many familiar names: Judah P. Benjamin, John C. Breckinridge, Howell Cobb, Robert E. Lee, Stephen Mallory, James M. Mason, Franklin Pierce, John H. Reagan, as well as the students of the University of Mississippi. Articulating the emotions of all, Lee wrote that Davis could conceive better than he could convey “the misery” that all of Davis’s friends had felt during the imprisonment, especially their impotence in his hour of distress. “Your release,” Lee declared, “has lifted a load from my heart which I have not words to tell.” He prayed that “the great Ruler of the world” would protect Davis from all future harm and give him “that peace which the world can not take away.”2
From New York City the Davises traveled north to Montreal and their family. A few days after their arrival James Mason came and took Jefferson away for a brief holiday at Mason’s cottage in Niagara, where several ex-Confederates had settled. To greet the boat in Toronto, a Confederate sympathizer had organized a
cheering assemblage of several thousand. After a lunch hosted by former Confederates and their Canadian friends, Mason escorted Davis and a small party across Lake Ontario to Niagara. As they approached the Canadian town, Davis noticed the U.S. flag flying over Fort Niagara on the other side of the Niagara River. “Look there, Mason,” he commented, “there is the gridiron we have been fried upon.” Davis enjoyed his time with Mason, but he stayed less than a week before returning to Montreal.3
Although Varina informed friends of the joy in the reunited Davis clan, she also shared her anxieties, especially about her husband. She discerned a physical weakness and a general lassitude in him that particularly troubled her. She tried to no avail to spark his interest in some wartime papers they had secretly brought into Canada in Maggie Howell’s trunk. In addition, Varina worried about money. Because she could not afford to maintain two houses, she intended to remain in one, on Mountain Street, until the lease expired in September. Then she would decide what to do. Her children even grumbled about their meager circumstances. Maggie complained about her unstylish hoops, and little Billy found it unfair that only he among his buddies had to borrow a crossbow. Confessing to “Great care and anxiety,” Varina felt that she faced all her difficulties alone because she believed her husband “not yet sufficiently well to share my troubles.” Needing respite from immediate responsibilities and the trials of recent months, she made a journey into the United States with her sister Maggie, leaving the children behind with her husband and mother. They went first to New York City, then Richmond, Charleston, and as far as Athens, Georgia, for a visit with the Howell Cobbs.4
While his wife traveled, Jefferson responded to an inquiry from brother Joseph, who had expressed eagerness to hear from the exile. Jefferson spoke of his emotional and mental exhaustion. Two weeks earlier, in a letter to Harrison, he had portrayed his status as “little better than a state of vegetation.” He told Joseph that he knew he needed to find active employment, but the impediments were imposing. He had few funds to invest and his legal situation restricted him. “My condition does not permit me to form plans for the future,” he concluded sadly. That his own children had become strangers to his family disturbed him. He hoped that he and his brother would soon meet again and the two of them would still have many days together. He wanted his sons to “have the benefit of [Joseph’s] teaching and example in the formation of their character.” While he worried about Joseph’s well-being, he grieved that he could not do “the much which it is my duty and heart’s desire to render to you.” He closed: “Daily my prayers are offered individually for you and our Sisters, and my longing desire is to embrace you all once more.”5
Jefferson Davis, American Page 79