From the outset O’Conor asserted forcefully that he took on Davis’s defense to uphold principle and that he had no interest in a fee. Yet word promptly reached him that ample money existed to defray all costs, whatever they might be. From London, James M. Mason informed him that Confederate funds held primarily by Colin J. McRae, the chief Confederate financial agent in Europe, would be made available, basically in whatever amount he needed. Initially McRae placed £500 in a London bank; over the next two years that sum would increase at least sixfold. John C. Breckinridge and Jacob Thompson also guaranteed access to former Confederate resources they controlled or possessed. In addition, the Mississippi legislature appropriated $20,000 for Davis’s defense, and the governor made it available to his attorneys. O’Conor continued to reject compensation for himself, though he accepted and used for expenses the money offered. Although a detailed accounting of the sources and expenditures is not possible, the Davis legal team never suffered from poor financial health.8
Attorney O’Conor also decided he would have only one client. If any leading Confederates were brought to trial, he believed Davis would be first, and his case would set crucial precedents for all that followed. As a result he refused to become directly connected with any other potential defendants. At the same time he viewed defending Davis as defending all his associates. One trial he shunned was that of Captain Henry Wirz, the Swiss-born commandant of the Confederate prison camp at Andersonville, Georgia. Because of the appalling mortality rate there, the government and many northerners branded Wirz an inhuman beast, even though he had had little control over the overcrowding and horrendous supply situation. Tried before a military tribunal, Wirz was convicted and condemned to death. To his regret O’Conor concluded he could not risk even paying for Wirz’s counsel because he feared contaminating Davis’s defense. In November, Wirz went to the gallows, the only Confederate executed as a war criminal. There were reports that Wirz had been offered his life if he would implicate Davis in what had transpired at Andersonville. Refusing, Wirz maintained he never had any dealings with his commander in chief.
While O’Conor focused on his mission to his client, he had no idea of what legal strategy his opponents intended. All information coming to him in the summer and fall pointed to a government so fractured that it could not decide how to proceed against its most notorious prisoner. O’Conor kept telling his allies they had to prepare for every conceivable eventuality. To Breckinridge, O’Conor underscored his uncertainty: “If the government has any fixed design in respect to [Davis], it is totally unknown to me. All is conjecture; but there is a prevailing impression that the government is unable to deal with the subject and is patiently awaiting some providential extrication from its doubts.”9
O’Conor was right. The Johnson administration indeed had difficulty deciding what to do with its state prisoner. In the immediate aftermath of Lincoln’s assassination and the concurrent plots against other high-ranking government officers, the War Department, with Secretary Stanton’s enthusiastic endorsement, claimed that Davis was intimately involved in the conspiracy that resulted in Lincoln’s murder as well as other failed intrigues. But the trials in late May of the assassin John Wilkes Booth’s immediate associates brought forward no new damning evidence. In subsequent investigations this supposedly crystal-clear certainty turned murky. A few officials clung to the theory of Davis’s responsibility, but most observers found the evidence flimsy, even fraudulent.10
Attempting to advise the president, Johnson’s cabinet found itself deeply divided. Secretary of State William Seward and Stanton urged a firm policy. They wanted Davis charged with treason and tried, as Booth’s compatriots had been, before a military tribunal. Led by Attorney General James Speed, others had serious reservations on both charge and venue. These men thought Davis should be brought before a civil court, if he were to be tried, because the war was over and the president’s Amnesty Proclamation of May 29 granted amnesty and pardon to former Confederates, with few exceptions, including Davis. On the accusation itself, Speed argued that “any competent and independent tribunal” would acquit Davis of treason. He made three basic points: the rebellion was a general action by the southern people in which foreign powers had given belligerent rights; the United States had acknowledged those same rights in its policies on prisoners of war; the Constitution required that Davis be tried where the treasonable acts took place, and he would never be convicted in Virginia or any other southern state. Despite these divisions the cabinet finally agreed, with two dissenting votes, to recommend to Johnson that Davis be tried for treason in a civil court.
Johnson also confronted a vexing problem within the federal judiciary. If Davis were indicted and brought to trial in the most logical place, Virginia, the chief justice of the United States, Salmon P. Chase, would hear the case. In a time when justices of the Supreme Court still traveled on federal circuits and sat alongside federal district judges, Virginia was in the circuit assigned to the chief justice. Chase had a strong opinion about the role of courts in a democracy. A major Republican politician before 1861 and secretary of the treasury in Lincoln’s cabinet prior to his judicial appointment in 1864, he declared he would not participate in any judicial proceeding as long as military authority remained in a state. He believed courts should not operate until “all possibility of claim that the judicial is subordinate to the military power is removed by express declaration of the President.” Although Johnson was well aware of Chase’s stand, he had made no such declaration.11
With his cabinet divided, though moving toward agreement, and with Chief Justice Chase an impediment, Andrew Johnson was unsure how to proceed. In the spring and summer of 1865 he stated unequivocally that he wanted Davis punished, and in May he helped obtain an indictment for treason against Davis and others from a federal grand jury in Norfolk. This indictment was literally lost and never became part of the record. Even so, the federal court refused warrants on the grounds that none would be issued for anyone who had surrendered to lawful authority. According to Hugh McCulloch, Johnson kept insisting that Davis deserved prosecution and conviction, and Johnson never revoked his proclamation of May 2 accusing Davis of complicity in the plot against Lincoln. But the president felt constrained by the opinion of his chief law officer.12
With Jefferson imprisoned and politicians and lawyers deliberating his legal fate, Varina stepped forward to take charge of her family. After her husband had been taken from the Clyde, she was not allowed to leave the ship. Instead, the Federal authorities sent her back down the coast to Savannah, where the U.S. Army kept her basically under town arrest. Closely watched and restricted to the town, she lived in a hotel.
Upon her arrival in Savannah, she wrote that she trudged from the docks to the hotel “quite in emigrant fashion.” She had primary responsibility for her four children, with assistance only from her twenty-three-year-old sister Margaret, who had spent the war years with her, and Robert Brown, a former Davis slave who stood steadfastly by his mistress’s side. Varina had very little money and practically no possessions, even clothes. According to her, Federal soldiers from Irwinville to the Clyde had ransacked the family belongings and taken whatever they pleased. She and her children had barely more than they wore.
Although the warm reception given her by the citizens of Savannah heartened Varina, the well-being of her little ones caused great anxiety. She feared the torrid temperatures of a Deep South summer would devastate her unacclimated brood. The baby, Varina Anne—Piecake—did come down with whooping cough, and her mother was convinced the heat made it worse. Yet potential psychological and physical harm concerned Varina even more than disease. She was greatly distressed at the taunting of her sons by other boys and soldiers. Three-and-a-half-year-old Billy even picked up the words to the popular ditty “We’ll Hang Jeff Davis on a Sour Apple Tree.” The social revolution accompanying the destruction of slavery engulfed her when a black soldier leveled his gun at a young Davis who had called him “uncle,”
a paternalistic endearment whites often used for favorite older bondsmen during slavery.13
Desperate to get the children away from what she considered the multiple horrors of Savannah, Varina decided to send them to Canada, under her mother’s care. Margaret Howell, with her daughter Maggie and Robert Brown’s aid, would oversee three grandchildren. Varina would keep the baby. The little troop of refugees left in mid-July, and by the end of the month had arrived in New York City, where friends of the Davises assisted them. Soon they went on to Montreal, where Margaret Howell settled in a boardinghouse and initially placed the two older children in Catholic schools.14
Maintaining her family and sending most of it to the emotional and physical safety she envisioned in Canada required financial means, a constant worry for Varina. She had very little money when she arrived in Savannah. Thereafter, a few family members and friends did contribute small amounts, but her main source of revenue came from some of the same former Confederates providing for her husband’s defense, chiefly Colin McRae. From England he initially sent her £200 and then set up an account of £2,500 for her. All did not go smoothly, however, for delays occurred in the receipt and transfer of funds. Yet Judah Benjamin wrote that the bulk of the money should stay in England to ensure that the U.S. government did not learn about it and possibly confiscate it. Working with a banker in Charleston who drew drafts on the account in England, she shepherded her finances. Telling her mother not to spend too much, she made clear that her resources had definite limits.15
Varina kept trying to get authorization so that she could leave Savannah and join either her family in Canada or her husband. But she was bothered by intimations that if she left the country, she might not be allowed to return, thus making it uncertain she would ever see her husband again. In her first success in late July, she gained permission to depart Savannah in the care of a friend, George Schley, who lived just outside Augusta. She considered this location much more salubrious for herself and her baby. Giving them a comfortable, caring home, the Schleys treated Varina and her daughter as family. Living with the Schleys far surpassed hotel life in Savannah; but Varina remained separated from three of her children, and her prisoner-husband still faced an unknown fate.16
During these trying weeks of separation and difficult choices, Varina exhibited great strength and decisiveness. But in unburdening to friends she revealed painful fissures in a formidable facade. Describing herself as “broken hearted” and her eyes as “faded by tears,” she spoke of “a maze of horrors” through which she had been “groping.” In a September letter to Mary Chesnut she held back nothing: “As for me I have nothing—but my one little ewe lamb—my baby. I will not go through the weary form of telling you how I have suffered—But enough to content any enemy, be he ever so blood thirsty—you know I bled inwardly—and suffer more because not put in the surgeon’s hands as one of the wounded—I never report unfit for duty.”17
Despite the tribulations and hardships, Varina undertook a vigorous campaign on behalf of her husband. She had three basic goals: removing the taint of assassination from his name; obtaining better treatment for him; and winning the right to visit him. She started early and never let up. From the Clyde en route to Savannah, she implored Frank Blair to intercede with the president for her. During the next few months she penned petitions to powerful men like Greeley, General Ulysses Grant, and even President Johnson. She also corresponded with Charles O’Conor and his associates, who kept her fully posted on what they knew about the government’s intentions and on their own.
Her crusade met with little success. By the autumn no responsible government official continued to believe that Davis had been involved with Lincoln’s murder, but their attitude resulted chiefly from the absence of solid, persuasive evidence, not from Varina’s disclaimers. Correspondents like Blair and Greeley promised to help, and they did bring her pleas to Johnson’s attention. But they could not get her to Fortress Monroe or her husband released or tried. Caught in a tangled legal and political web, Andrew Johnson took no action.18
Although unable to accomplish what she wanted for her husband, Varina finally found herself freed from Georgia. In January 1866 she received permission from the War Department to join her family in Canada. Even though she continued to worry about Jefferson in prison, she seized the opportunity. But before heading north, she decided to turn west and visit Mississippi and Louisiana, where she had not been since 1861. Accompanied by Burton Harrison, who had been recently released from prison, she struck out in February. On a trip that lasted more than a month she went by train to Jackson and New Orleans, where she spent fifteen frantic days, and then upriver to Vicksburg. Along the way she visited relatives and friends, including Joseph Davis, whom she saw in Vicksburg. She reported to Jefferson that his eighty-two-year-old brother retained his mental powers and looked much the same, except for whiter hair and increased deafness.
Visiting over, Varina started back north, with Burton Harrison still her companion. She praised him for being “all in the world” to her, as much as she could hope for in a grown son. They traveled by steamboat up to Cincinnati and then by rail to New York City. While there she conferred with Charles O’Conor and Richard Taylor before continuing on to Canada. On April 14 she reached her mother’s boardinghouse in Montreal.19
While Varina was struggling to take care of her children and campaign on behalf of her husband, the couple could only communicate via letters, which were not confidential. For three months after their separation on May 22, 1865, no direct communication occurred between them. Finally, in late August, Davis received permission to write his wife, and on August 21 he did so for the first time. He detailed the rules governing his writing: he had to confine himself to family matters, and his letters would be examined by the attorney general of the United States before final transmission. Varina could also write to him.20
For the ensuing eight months this correspondence became Davis’s lifeline to those he cared most about. His letters demonstrated how close he and Varina had become in the cauldron of war. His enduring solicitude for his children revealed a devoted, loving father. He also laid bare a deep and abiding Christian faith that had become central in his life and brought him invaluable comfort in his imprisonment. In addition, he talked about himself, ranging from his regimen at Fortress Monroe to his sense of his role as the incarcerated former chief executive of the defunct Confederate States of America.
Expressions of love for his wife rushed ahead like the waters in a flood. In the first letter, on August 21, he described her as “equally the center of my love and confidence.” “Someday,” he professed, “I hope to be able to tell you how in the long weary hours of my confinement, busy memory has brought many tributes to your tender and ardent affection.” Similar professions leaped from almost every later letter. In October he told her, “you have a key to my heart and know its unuttered feelings.” A month later, he wrote: “May the Lord have you in his holy keeping and send the comforter to your sorrowing heart. Shut out from the ever changing world I live in the past with a vividness only thus to be accounted all the events of all the years of our love rise before me and bear witness how very dear you are to your Husband.” He left no doubt about her importance to him: “Your care protected me from many ills, your hand assuaged suffering, your voice told of happy things and breathed the music sweetest to my ears, your pious spirit recalled me from thorny paths and led me into the bosom of the Church.”21
In addition to affirming his love, Davis also evinced great pride in his wife’s vitality and her willingness to act. He marveled at how she coped with her struggle in Georgia and the difficult decisions about the children. Voicing confidence that she would make the right choices about her own and the children’s future, he said he never doubted her strength and her determination. His frustration came from his inability to aid her materially. Because he knew so little of what was actually happening, he could not give sound advice. He urged her to call on his brother Joseph and
their good friends for counsel, but he expressed no caveats about his wife’s ultimate judgments.
As always, his children absorbed him. Varina’s reports of the taunts and insults they suffered in Savannah raised his ire; he wanted to lash out at those who menaced his little ones. Aside from those unsavory incidents, word of their activities greatly pleased him. He cherished the photographs that Varina sent; in one letter she included a handprint of their baby. He was especially attentive to information about schooling. The two oldest being placed in Roman Catholic institutions in Canada pleased him because he retained fond memories of his own early education. His concern for their well-being caused him to stress to Varina that she must place her responsibility for them ahead of any she felt for him. In his opinion, they needed her desperately, while he could hold on. Anxiety came when he learned his darlings worried about their father; he wanted no such disquietude intruding into their lives.22
Davis also occasionally heard directly when Varina forwarded letters from ten-year-old Maggie—or Polly, the name her father preferred. Always addressing her “precious father,” the little girl described her activities at school and reported on her brothers, telling him that both were good boys and well. She asked for a picture and some hair. In response a loving father said that he constantly prayed that God would watch over his “precious lambs.” He counseled her to obey school rules and strive to do right. Like her, he too wanted their family together once again. His prayer was that God would see fit to reunite them, if it be God’s will, “And oh! may it be his will.”23
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