Jefferson Davis on the Constitution
An Extract from The Rise and Fall of the Confederate Government
This selection is one of the best expositions of the compact theory of the constitution, by the man who served as president of the C.S.A. It comprises pages 75-168 of Volume I of The Rise and Fall of the Confederate Government by Jefferson Davis, published in 1881.
The new foreword by Daniel V. Bowden:
After the close of the War for Southern Independence, a number of Confederate generals and politicians turned to writing their memoirs, determined that the history of the conflict would not be entirely written by the victorious North. None was more determined than Jefferson Davis. Davis was not one to accept defeat easily. After the fall of Richmond he was forced to flee south with the records and papers of the Confederate government loaded in train cars and wagons. Making his way through South Carolina and Georgia, his entourage dwindled as the collapse of the Confederate military became apparent. Even after Lee’s surrender in Virginia, Davis hoped to travel west to Texas and continue the fight with Gen. Kirby Smith’s forces. After being informed by Gen. Joseph Johnston that his forces could no longer stand against Sherman’s army, Davis ordered Johnston to take his men into the hills and fight a guerilla war–Johnston ignored the order and surrendered instead. Davis managed to elude the Federal forces searching for him for some time, but his progress westward was hampered by his family, which was travelling with him. He was captured unharmed in south-central Georgia by Federal troops, but would have resisted had his wife not restrained him, fearing for his safety. The Confederate President spent two long years in Fort Monroe in Virginia as a federal prisoner, awaiting trial for treason.
After the war ended, and with the civil courts in full operation, the Republicans could no longer make a case for the use of military tribunals. Some of the best lawyers of the day volunteered to represent Davis. Faced with the prospect of having to try Davis before a jury of Virginians, the government dropped all charges and released him rather than risk an acquittal. A “not-guilty” verdict by a jury is unreviewable by any court, and such an acquittal would have been viewed–and rightly so–as a vindication of the South and an acknowledgment of the constitutionality of secession. The government had much to lose and little to gain by allowing such a trial, for which Davis was eager.
Davis retired to Beauvoir, his post-bellum home in Biloxi, Mississippi, and turned out his two-volume The Rise and Fall of the Confederate Government, published in 1881. Buried within Volume I of this 1200+ page work is a short section entitled simply “The Constitution.” It is Davis’s explanation and exposition of the compact theory of the Constitution, the view which was almost universally-held by Southern statesmen, and, as Davis shows, by the founders themselves. Davis’ short work is one of the best written on the subject. He painstakingly and with great detail examines and refutes every argument that the United States as a nation-state preceded or was superior to the individual states, that the states gave up their sovereignty upon forming the Union, and that secession was illegal or unconstitutional. It is Davis’s brief for the defence, the one he never got a chance to present at trial.