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Legal historian Cynthia Nicoletti’s new book says failing to try and execute Confederate President Jefferson Davis for treason left questions about secession’s legality.

Why wasn’t Confederate President Jefferson Davis ever tried for treason? According to a new book, it’s because the Union thought there was a strong possibility that his case would raise troubling questions about the constitutionality of secession, and that a possible acquittal would signal that the Union’s war effort had been unjustified.

Cynthia Nicoletti , a legal history professor at the University of Virginia School of Law, looks at the quandary in “ Secession on Trial: The Treason Prosecution of Jefferson Davis ,” published this month by Cambridge University Press.

Davis’ trial, which would have served as a test case for the legality of secession, was delayed for four years before ultimately being dropped. Among government officials, there was concern that the prosecution could backfire.

In the abstract, it wouldn’t have been hard to prove that Davis committed treason.

“Treason in the Constitution is levying war against the United States,” Nicoletti said. “It was incredibly easy for them to prove that Davis levied war against the U.S.; that was his job.”

But, she said, that all changes if Davis wasn’t a U.S. citizen at the time he did so. Many in the South, and even some in the North, believed states had the right to leave a union they voluntarily joined.

“Davis’ argument would go: ‘When my state, Mississippi, seceded from the Union in 1861, that removed my United States citizenship,’” Nicoletti said. “And treason is a crime of loyalty; in order to commit it, you need to be a U.S. citizen. So everybody thought at the time that this case was going to raise the question of whether secession is constitutional, and there was worry about whether or not Davis was going to be convicted.”

Official acts by the Union preceding and during the war, such as allowing for prisoner swaps and observing other rights of foreign governments under the law of nations, might have been used to bolster the argument for secession’s legitimacy.

Nicoletti said the Union had decided against a military trial for Davis, which most certainly would have led to a swift verdict against him, resulting in his execution.

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