September 01, 2015

Legal History: How the Civil War Continues to Affect the Law

Kevin C. Donovan

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The past is never dead. It’s not even past.

—William Faulkner, Requiem for a Nun

This year’s sesquicentennial of the Civil War marks the anniversary of an event that transformed our system of laws as much as it shaped our society overall. So much of the jurisprudence developed during our nation’s greatest conflict, and in the tumultuous Reconstruction years immediately after, continues to resonate in courtrooms today.

Take for example military commissions, a forum given renewed prominence after 9/11. The most powerful potential check on an untenable outcome in any criminal case—the writ of habeas corpus—was made applicable to military commissions through post–Civil War litigation.

After the April 1865 assassination of President Abraham Lincoln, nine U.S. Army officers sat as a military jury in the trial of the assassination conspirators, backed only by a one-sentence opinion of the U.S. Attorney General: “I am of the opinion that the persons charged with the murder of the President of the United States can be rightfully tried by a military court.” The military commission found all eight defendants guilty, and four were hanged just a few days later. President Andrew Johnson ignored a writ of habeas corpus issued for one of the defendants, on grounds that he had suspended the writ.

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