Why wasn't Jefferson Davis executed?
April 4, 2011 1:26 PM   Subscribe

After the Civil War why didn't the Union execute Confederate leaders as traitors?

A few years ago I was working on a project in Virginia and a guy from New Zealand, who was also on the project, asked about a Civil War monument in the middle of the town square. I explained the rudimentary facts about the Civil War and he said "Oh, so its a monument to traitors?"

I had never considered it that way before and occasionally I see something about the Civil War or the South and I think about his comment. I recently saw an article about this year being the sesquicentennial of the start of the Civil War and it made me think again about the traitors remark. So, now the questions...

Where any Confederate soldiers or leaders executed?

At the time were Southerners viewed as traitors by Northerners?

Why weren't the leaders of the Confederacy executed?

Was execution ever considered?

Why was was the South allowed to pay homage to rebel leaders after the war?

posted by pandabearjohnson to Law & Government (20 answers total) 4 users marked this as a favorite
I'm sure there were those who wanted blood, but the idea of executing anyone was a bad idea if the ultimate goal was not just a state of un-war, but of peace and reconstruction.

Abraham Lincoln himself set the tone in his Second Inaugural Address:

"With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations."
posted by inturnaround at 1:32 PM on April 4, 2011 [3 favorites]

"With malice toward none, with charity for all." er, what inturnaround just said.
posted by Danf at 1:34 PM on April 4, 2011

Best answer: From my boyfriend, who studies the Civil War and is writing a book about the Battle of Gettysburg:

One Confederate was executed after the war as a war criminal -- the commandant of Andersonville Prison. No one else was. Although many Northerners did view the South as traitorous, the issue was very confusing from a legal perspective.

First of all, I think that many people in the North, even during the war, felt that the South did have a legal right to secede, so there were dubious grounds to view them as traitors if they were actually acting in accordance with Constitutional Law.

Secondly, SO MANY of the Southerners were Confederates. Lots of Reconstruction plans were bandied about in Congress suggesting various percentages of Southerners from a given state who would have to swear an oath that they had never been traitorous before their state would be readmitted to the Union. It was hard to garner even 10 percent in most of the Southern states, and something more like 30 percent would have been absurd. So... do you execute 5 million Americans as traitors?

As it was, the South remained an occupied territory for a long time, and it was supposed to endure the "deprivation" of full African American suffrage, which I think a lot of the Northerners viewed as a kind of cheeky and humiliating punishment. Why didn't that come to pass? The KKK and other racist Southern organizations practiced such effective guerilla warfare terrorism that thousands of free blacks and occupying white soldiers were killed and thousands more were raped and brutalized. Basically, the North finally got tired of the whole thing and said wtf, have your monuments etc, and you can have your Jim Crow laws too, we'll just settle for having it all be one country.
posted by cranberry_nut at 1:39 PM on April 4, 2011 [3 favorites]

FYI: the oath required for Confederates to enter any postbellum political office was called the Ironclad Oath. While actual execution may have been off the table for Johnny Reb, his political execution was mandatory.
posted by Kandarp Von Bontee at 1:43 PM on April 4, 2011 [1 favorite]

When Lee surrendered at Appomattox Court House, General Grant not only allowed the officers to keep their sidearms, but he also allowed the men of Lee's army to leave with their horses and mules to allow for spring planting and gave the starving Rebels food rations.

When word reached Grant's men, they began to cheer. Grant ordered the cheering to be stopped, saying, "The Confederates were now our countrymen, and we did not want to exult over their downfall."

The rest was left up to Congress. Reconstruction was a different story. No executions, but it did leave a bad taste in many in the South for decades after.
posted by inturnaround at 1:46 PM on April 4, 2011 [1 favorite]

I think it's also important to remember that, unlike in many civil wars driven by ethnic or religious differences, the leadership of both the North and the South were drawn from men who largely shared the same backgrounds: the same religious beliefs, the same heritage, in many cases the same social circles and educational background and so on. (Lee was invited to command the Union Army, even!) They all knew each other.
posted by Eyebrows McGee at 1:49 PM on April 4, 2011 [4 favorites]

Because the Union didn't want to ignite a grinding, endless guerrilla war: ambushes and assassinations, followed by mass arrests, followed by bombings, followed by concentration camps, followed by, followed by, etc. They'd seen what that looked like in Kansas and Missouri. And so we avoided the fate of Ireland, etc. Probably a good call, though tough on African-Americans for a 100 years or so.
posted by mojohand at 1:51 PM on April 4, 2011 [4 favorites]

They'd seen what that looked like in Kansas and Missouri.

Please explain. I am curious.
posted by ocherdraco at 1:51 PM on April 4, 2011

Bleeding Kansas
posted by something something at 1:54 PM on April 4, 2011 [4 favorites]

Mojohand has it. A modus vivendi was needed.

Unless you wanted to crush and occupy the South -- which would be costly and lead to resentment and rebellion-- you had to leave their leadership intact. Radical Republicans did want to crush the South, to some degree, but settled for the 13th, 14th,m and 15th Amendments instead.

Even so, the question of how retributive/reformative to be would influence elections for the next several years, and relations for the next century or more. Very soon the Radical Republicans (and blacks elected in the South) were voted out, and the South largely ignored the amendments and the rights of blacks, through various legal subterfuges.

That only resolved (to the extent that it did resolve; see Nixon's Southern Strategy, the Drug War, and prison policy) in the Civil Rights Movement (which we celebrate this day an the anniversary of the martyrdom of Dr. King.)
posted by orthogonality at 2:58 PM on April 4, 2011

The whole argument was "hey, we want you all to be part of our one big country" not "we want to grind you into the dust." Remember that the South wasn't fighting to take over the entire country (compare Jefferson Davis to Oliver Cromwell.) There was nothing to gain and everything to lose from that sort of thing.

Also, this sort of behavior (mass execution of one's political enemies, terror as a means of control over a populace, a general disregard for human rights) gradually fell out of favor amongst Western countries following the French Revolution. The transition from Robespierre to Ghandi - the Terror to IRA prisoner hunger strikes - is one of the better achievements of the industrial era. By 1945, no one was really willing to accept the argument that Hilter had the right to murder his own citizens, for instance. The history of the laws of war is instructive. By 1907, people were writing things like:
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
(We also didn't execute former Loyalists in the 1780s and 1790s, though in that instance lots of them left for England or Canada, and of course there was quite a lot of injustice in terms of murders and confiscation of property and so forth - ask a Southerner about the history of Arlington National Cemetery sometime. It takes time to get this stuff right.)
posted by SMPA at 4:09 PM on April 4, 2011 [1 favorite]

There is also the very real practical reason for not executing Confederate leaders as traitors: executing people who surrender while they still have the ability to fight is a damn good way to make sure that anyone you are at war with in the future fights to the death. When people think you're going to execute them they have no reason to act in a reasonable fashion. In fact, being merciful to those who surrender and vindictive towards those who do not has been shown to be an extremely effective method of warfare for at least a millenia.

But, yeah, there are a lot of monuments to traitors in the south. That we didn't execute them doesn't mean they weren't traitors.
posted by Justinian at 4:23 PM on April 4, 2011

IIRC, the only war criminal executed after the war was the Swiss born administrator of Andersonville Prison, Henry Wirz. Blame the guy with a funny accent!
I have no doubt there was some private vengeance taken, here and there.
posted by pentagoet at 4:47 PM on April 4, 2011

The term "civil war" is more ambiguous than is often supposed, and I'm guessing a detailed look at civil wars throughout history would reveal that they have ended in a variety of ways--i.e. I doubt the American Civil War is as unique as supposed in terms of the relative lack of retribution (i.e. executions) that followed it.
posted by The Emperor of Ice Cream at 6:01 PM on April 4, 2011

As a Yankee I'm pretty sick of Southerners treating a bunch of traitors as heroes. That being said, executing them as traitors would have been pretty counterproductive, think long-term guerilla war.

I do like the fact that Robert E. Lee's home was turned into Arlington National Cemetery

Oh and a great book on the South's weird relationship with history is Confederates in the Attic.
posted by JohntheContrarian at 6:03 PM on April 4, 2011

If you enter a discussion of slavery in the Americas under the assumption that the Atlantic slave trade was shutdown by the British Navy, with very little help - the American Civil War looks totally different.

The core of your question is answered upthread. The fact that the punishment of the south wasn't ultra-harsh stems from the fact that the military and social elite on both sides of the conflict were classmates, friends, business partners, etc who didn't want to cause a lot of trouble for each other - the same thing happened in the war of 1812-1815. Also at the level of the individual soldier, the Confederacy had excellent troops and their talent for light cavalry could have prolonged a fairly sucessful guerilla war for a long time.
posted by Deep Dish at 6:23 PM on April 4, 2011

Half eponysterical! Anyway, aside from the good general points made above, there is an actual paper record here.

Recall that the President at the actual close of hostilities was no longer Lincoln, but Andrew Johnson -- a Southerner, born in North Carolina, who represented Tennessee when he was in Congress. Johnson held firm against many positions taken by the opposition Radical Republicans, who would have gladly done much worse to the South than the Reconstruction we know.

On May 29, 1865, Johnson extended the generous terms of surrender given by Grant at Appomattox to most ordinary Confederates with a proclamation of amnesty (which required an oath).

This was followed on September 7, 1867 with a proclamation of full pardon to "all persons who, directly or indirectly, participated in the late rebellion, with the restoration of all privileges, immunities, and rights of property, except as to property with regard to slaves", again with the requirement of the oath.

The 1868 Democratic Party platform officially called for amnesty "for all past political offenses"; and July 4, 1868, which was apparently the same day of its promulgation, Johnson further granted executive pardon "unconditionally and without reservation, to all and to every person who, directly or indirectly, participated in the late insurrection or rebellion ... a full pardon and amnesty for the offense of treason against the United States", with the exception of anyone already under indictment or prosecution. Essentially this made all new treason charges moot without affecting existing court proceedings.

Later that same year, having lost the election to Grant, Johnson granted the Christmas Day Amnesty "to all and to every person" who participated in the rebellion. Clearly, as with the other amnesties, it was done out of a concern that the Radical Republicans, unchecked, would indeed try Southerners for treason.

It was certainly not a popular position in the North, but the conventional wisdom is that Johnson was right to do so. Finally, in 1872, the Liberal Republicans (a union of the Democrats and disaffected Republicans) passed the Amnesty Act that actually restored the voting and officeholding rights of former Confederates. It was considered a strategic move to improve the chances that the party could win the presidency against Grant, but obviously did not succeed. (It would be twelve more years before Grover Cleveland returned the Democratic Party to the White House.)
posted by dhartung at 10:45 PM on April 4, 2011

The majority of executions were for war deserters - go figure. One hundred Union deserters were executed.
posted by JJ86 at 7:24 AM on April 5, 2011

Zombie thread! I thought of this question today because I've been reading a novel spanning the French Revolutionary period, from Louis XVI to the exile of Napoleon (the novel goes from 1788 to 1815 or so) and HOLY CRAP is letting each successive "winner" of a civil war, coup, or revolution execute everyone on the other side a TERRIBLE IDEA. I know I studied the grand political movements in school, but reading a novelization that focuses on individuals is really driving home how incredibly destructive it was to try to destroy the losing side rather than reintegrate it into society -- it destroyed families, threw women and children into poverty, created suspicion in place of social cohesion, turned the focus away from dire economic issues and serious questions of nation-building and onto questions of revenge, death, imprisonment, etc. And of course each time the "winner" works at crushing the loser, the loser is motivated to rise up, revolt, and become the new winners ... so they can now crush the losers and repeat the cycle.

Amnesties, pardons, and Reconstruction weren't a perfect solution, but if something like the 7 different regime changes, many violent and bloody, France had between 1788 and 1815 is the alternative option ...
posted by Eyebrows McGee at 9:49 PM on April 11, 2011

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