Hostname: page-component-7c8c6479df-8mjnm Total loading time: 0 Render date: 2024-03-18T05:12:35.071Z Has data issue: false hasContentIssue false

The American Civil War as a Trial by Battle

Published online by Cambridge University Press:  15 February 2010

Extract

Confined alone in a cell in New York's Fort Lafayette in the heat of the summer of 1865, former Confederate naval secretary Stephen R. Mallory had little to do but reflect on the fate of the defeated Confederacy. Convinced that his life might be forfeit if the United States government made good on its threat to try him for treason, Mallory composed a lengthy letter to President Andrew Johnson petitioning for a pardon and seeking to explain his views on the demise of the Confederacy and the fate of the states' right to secede from the Union. While Mallory stressed his opposition to disunion in 1861, on the grounds of its inexpediency, he admitted that he had placed loyalty to his state above his duty as a citizen of the United States. He had “regarded the commands of my state as decisive of my path of duty; and I followed where she led.” Nonetheless, Mallory went on to disclaim his belief in the principle of secession in very striking terms, describing the death of secession in the crucible of the Civil War as the result of a trial by battle. Mallory never specifically denied secession's constitutionality; instead, he told Johnson that because he “recognize[ed] the death [of the Confederacy] as the will of Almighty God, I regard and accept His dispensation as decisive of the questions of slavery and secession.”

Type
Articles
Copyright
Copyright © the American Society for Legal History, Inc. 2010

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Mallory's biographer describes his life in prison as time spent writing in his diary and composing long letters to his wife, staring out the window, and playing chess against himself. See Durkin, Joseph T., Confederate Navy Chief: Stephen R. Mallory (Tuscaloosa: University of Alabama Press, 1954), 344–79Google Scholar. Underwood's, Rodman L. recent Mallory biography, Stephen Russell Mallory: A Biography of the Confederate Navy Secretary and United States Senator (Jefferson, N.C.: McFarland, 2005), 174–78Google Scholar, gives a less full description of his imprisonment.

2. Mallory, Stephen R. to Andrew Johnson, June 21, 1865, The Papers of Andrew Johnson, 16 vols., ed. Bergeron, Paul (Knoxville: University of Tennessee Press, 1967–69)Google Scholar, 8:268. Mallory did not claim to acquiesce in the results of the war merely for the purpose of wheedling a pardon out of President Johnson. He wrote privately in his diary while he was still imprisoned that “the South acquiesces in the results of the battle field; acquiesces in good faith and will conform in good faith to the theory of the ‘National Government’ instead of the ‘Federal Government,’ and never again attempt secession” (Stephen Mallory diary entry, December 6, 1865, quoted in Durkin, Confederate Navy Chief, 374).

3. A similar argument to the one made throughout this article with respect to the right of secession could, I suspect, be applied to the destruction of slavery in the Confederate states during and after the Civil War. Comparing northerners' and southerners' thoughts about the end of slavery and that of secession might also prove a fruitful topic of inquiry, but it is not one that will be explored here. This is not to say that the death of slavery after the Civil War is somehow of less moment than the eradication of secession arguments. Rather, my choice arises because this piece is part of a larger work that focuses on the intractability of secession arguments after the Civil War in the context of Jefferson Davis's treason trial.

4. 67 U.S. 635 (1862); 74 U.S. 700 (1869). These cases will be discussed below.

5. Stampp, Kenneth, “The Concept of a Perpetual Union,” Journal of American History 65 (June 1978): 33CrossRefGoogle Scholar.

6. Hyman, Harold, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (Boston: Houghton Mifflin, 1975)Google Scholar; Paludan, Phillip S., A Covenant with Death: The Constitution, Law, and Equality in the Civil War Era (Urbana: University of Illinois Press, 1975)Google Scholar; Belz, Herman, Emancipation and Equal Rights: Politics and Constitutionalism in the Civil War Era (New York: W. W. Norton, 1978)Google Scholar; Benedict, Michael Les, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863-1869 (New York: W. W. Norton, 1974)Google Scholar, Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era (New York: Fordham University Press, 2006); Vorenberg, Michael, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (Cambridge: Cambridge University Press, 2001)CrossRefGoogle Scholar, 109–10, 132–35; Ackerman, Bruce, We the People: Transformations (Cambridge, Mass.: Belknap, 1998)Google Scholar.

7. This is not to say that no one has undertaken to defend the constitutionality of secession since the Civil War, but rather that scholars who have presented a logical case for secession have nevertheless viewed the Civil War as a decisive blow against the vindication of their viewpoint. For instance, political scientist Mark Brandon presents a pro-secession argument, based on constitutional logic and the history of the Constitution's adoption and the various sectional crises of the antebellum period, but he ultimately acknowledges that such an argument has had no practical force since the “emphatic … military solution” of the Civil War. Brandon accordingly maintains: “For more than a century Lincoln's doctrine, reinforced by Union military victory and the Supreme Court's confused benediction after the war, has made national perpetuity and the illegitimacy of secession appear to be brute constitutional facts.” See Brandon, Mark E., Free in the World: American Slavery and Constitutional Failure (Princeton, N.J.: Princeton University Press, 1998)Google Scholar, chap. 7, esp. 179, xiv–xv.

8. Dunning, William A., Essays on the Civil War and Reconstruction (New York: Macmillan, 1898), 304Google Scholar; Burgess, John W., Reconstruction and the Constitution, 1866–1876 (New York: Charles Scribner's Sons, 1905), 54Google Scholar; Randall, James G., Constitutional Problems Under Lincoln (1926; reprint, Urbana: University of Illinois Press, 1964), 522Google Scholar; McLaughlin, Andrew C., A Constitutional History of the United States (New York: D. Appleton-Century, 1936), viiGoogle Scholar.

9. Hyman, More Perfect Union, 284–85, 368; Stampp, “Concept of a Perpetual Union,” 6; Simpson, Brooks D., America's Civil War (Wheeling, Ill.: Harlan Davidson, 1996)Google Scholar, 4, 217. For other similar statements, see also Paludan, Covenant with Death, 98, 225; Kelly, Alfred H., Harbison, Winfred A., and Belz, Herman, The American Constitution: Its Origins and Development (New York: Norton, 1991), 317Google Scholar; Jacobson, Arthur J., Schlink, Bernhard, and Cooper, Virginia, Weimar: A Jurisprudence of Crisis (Berkeley: University of California Press, 2000), 217Google Scholar; Schwartz, Bernard, From Confederation to Nation: The American Constitution, 1835–1877 (Baltimore: Johns Hopkins University Press, 1973), 133Google Scholar; Schwartz, , A History of the Supreme Court, (Oxford: Oxford University Press, 1993), 134Google Scholar; Schwartz, , A Commentary on the Constitution of the United States, 5 vols. (New York: Macmillan, 1963)Google Scholar, 1:41.

10. Ackerman, We the People, 2:22; Farber, Daniel, Lincoln's Constitution (Chicago: University of Chicago Press, 2003), 78CrossRefGoogle Scholar; Paulsen, Michael Stokes, “The Civil War as Constitutional Interpretation,” University of Chicago Law Review 71 (Spring 2004): 716Google Scholar; Amar, Akhil, “Of Sovereignty and Federalism,” Yale Law Journal 96 (June 1987)CrossRefGoogle Scholar: 1512n341 and accompanying text. See also Spaulding, Norman W., “Constitution as Countermonument: Federalism, Reconstruction, and the Problem of Collective Memory,” Columbia Law Review 103 (December 2003): 2019CrossRefGoogle Scholar; Elazar, Daniel, “Civil War and the Preservation of American Federalism,” Publius 1 (1971): 47Google Scholar, 56.

11. See Bestor, Arthur, “The American Civil War as a Constitutional Crisis,” American Historical Review 49 (1963): 327–52Google Scholar; Paludan, Phillip, “The American Civil War Considered as a Crisis in Law and Order,” American Historical Review 77 (October 1972): 1013CrossRefGoogle Scholar. On the conflict between law and war in a modern context, see Kennedy, David, Of War and Law (Princeton, N.J.: Princeton University Press, 2006)Google Scholar.

12. Although trial by battle was used as a method of proof in cases between individual litigants, there is some indication that nations did use trial by battle, in a certain sense, to settle international disputes in European history. For instance, in 1340, during the Hundred Years' War, King Edward III of England challenged King Philip VI of France to single combat or to a staged battle between 100 champions to settle their disputed claim to the throne of France. The French king declined. See Sumption, Jonathan, The Hundred Years War: Trial by Battle (Philadelphia: University of Pennsylvania Press, 1999), 348–49Google Scholar. See also “Judicial Combats and the Wars of Nations,” Chambers' Edinburgh Journal 190 (1847): 126, comparing trial by battle to international wars.

13. The history of trial by battle in English common law and the gradual advent of trial by jury is a much more complex and fascinating story than this very brief summary would indicate. For more information, see Pollock, Frederick and Maitland, Frederic William, History of English Law Before the Time of Edward I, 2 vols. (Washington, D.C.: Lawyers' Literary Club, 1959)Google Scholar, 2:600; Plucknett, Theodore F. T., Concise History of the Common Law (Boston: Little, Brown, 1956), 116–21Google Scholar; Bartlett, Robert, Trial by Fire and Water: The Medieval Judicial Ordeal (Oxford: Clarendon, 1986), 103–26Google Scholar; Baldwin, John W., “The Intellectual Preparation for the Canon of 1215 against Ordeals,” Speculum 36 (1961): 613–36CrossRefGoogle Scholar. Lea's, Henry CharlesSuperstition and Force (1870; reprint, New York: Greenwood Press, 1968)Google Scholar, will be discussed below.

14. This case was Ashford v. Thornton, 106 Eng. Rep. 149 (1818). As late as 1774, on the eve of the American Revolution, several members of Parliament protested vehemently against a proposal that would have abolished the appeal of felony and the right to defend one's innocence through trial by battle in Massachusetts as a way to crack down on the unruly colonists. MP John Dunning, later Lord Ashburton, insisted that even surly Americans could not be denied “that great pillar of the Constitution, the Appeal for Murder,” for fear that such a statute would create a dangerous precedent and eventually cause Englishmen to lose this right as well. See Lea, Superstition and Force, 197–98; Riddell, William Renwick, “Appeal of Death and its Abolition,” Michigan Law Review 24 (1925–1926): 804Google Scholar.

15. Blackstone, William, Commentaries on the Laws of England, 4 vols., ed. Christian, Edward (Philadelphia: R. H. Small, 1825)Google Scholar, 3:335–38.

16. Smith, Thomas L., Elements of the Law, or, Outlines of the System of Civil and Criminal Laws in Force in the United States, and in the several states of the Union (Philadelphia: Lippincott, Grambo, 1853), 194Google ScholarPubMed; Nicoll, Henry, An Address Delivered Before the Graduating Class of the Law School at Columbia College (New York: Trow & Smith, 1869), 8Google Scholar.

17. Walker, Timothy, Introduction to American Law: Designed as a First Book for Students (Cincinnati: Derby, Bradley, 1846), 525Google Scholar.

18. While the concept of trial by battle was undeniably a legal one, it also had deep resonance as a religious idea. Many nineteenth-century Americans clearly believed that God had a hand in the war, and that He had ordained the suffering occasioned by the war. This sentiment was perhaps most famously expressed by Abraham Lincoln in his Second Inaugural Address, in which he spoke of American slavery as “one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him?” Abraham Lincoln, “Second Inaugural Address,” March 4, 1865, http://www.bartleby.com/124/pres32.html. If Lincoln invoked the idea of divine providence in reference to the Civil War, the topic was a favorite one with nineteenth-century theologians. Religious leaders as well as political ones analogized the war to a trial by battle. For example, in late 1865, southern Presbyterian theologian John Adger referred to the Confederate war effort as “the cause [southerners] were maintaining against a radical infidelity in humble prayer to [God's] wise, and sovereign, and merciful arbitrament.” Adger, John, “Northern and Southern Views of the Province of the Church,” Southern Presbyterian Review 16 (March 1866): 397–98Google Scholar. See Noll, Mark A., “‘Both … Pray to the Same God’: The Singularity of Lincoln's Faith in the Era of the Civil War,” Journal of the Abraham Lincoln Association 18 (Winter 1997): 126Google Scholar; Noll, Mark A., The Civil War as a Theological Crisis (Chapel Hill: University of North Carolina Press, 2006), 7594Google Scholar; Genovese, Eugene, A Consuming Fire: The Fall of the Confederacy in the Mind of the White Christian South (Athens: University of Georgia Press, 1998)Google Scholar, esp. 62–71; Chesebrough, David, ed., “God Ordained This War”: Sermons on the Sectional Crisis, 1830–1865 (Columbia: University of South Carolina Press, 1991)Google Scholar; Moorhead, James H., American Apocalypse: Yankee Protestants and the Civil War, 1860–1869 (New Haven, Conn.: Yale University Press, 1978)Google Scholar.

19. This romanticization applied with particular force to ex-Confederates, both because of the prevalence of the culture of honor in the American South and because their defeat made them more prone than northerners to a maudlin and sentimental view of the war. See Brown, Bertram Wyatt, Southern Honor: Ethics and Behavior in the Old South (New York: Oxford University Press, 1982)Google Scholar; Ayers, Edward L., Vengeance and Justice: Crime and Punishment in the 19th-Century American South (New York: Oxford University Press, 1984), 3033Google Scholar; Hamm, Richard, Murder, Honor, and Law: Four Virginia Homicides from Reconstruction to the Great Depression (Charlottesville: University of Virginia Press, 2003)Google Scholar.

20. For a discussion of how pardoning formed the basis of Johnson's lenient Reconstruction policy, see McKitrick, Eric L., Andrew Johnson and Reconstruction (Chicago: University of Chicago Press, 1960), 142–52Google Scholar.

21. Amnesty Proclamation, May 29, 1865, Papers of Andrew Johnson, 8:128–30; Dorris, Jonathan T., Pardon and Amnesty Under Lincoln and Johnson (Chapel Hill: University of North Carolina, 1953), 135Google Scholar.

22. See Dorris, Pardon and Amnesty, 144–51, on the business of pardon brokering.

23. Alpheus Baker Petition, Case Files of Applications from Former Confederates for Presidential Pardons, “Amnesty Papers,” 1865–1867, National Archives, Washington D.C., Alabama Petitions, Reel 1; Lucius Northrop to Andrew Johnson, July 11, 1865, Papers of Andrew Johnson, 8:388–89; P. G. T. Beauregard to Andrew Johnson, September 16, 1865, Papers of Andrew Johnson, 9:83.

24. Clement C. Clay Jr. to Andrew Johnson, November 23, 1865, Papers of Andrew Johnson, 9:421; Clement C. Clay Jr. to Virginia Clay, August 11, 1865, Box 7, Clay Papers, Duke University Library, Durham, North Carolina.

25. Although after the Civil War, many Americans believed that no civil court's disposition of the question of secession's constitutionality would have been considered definitive, it is worthwhile to explore whether this question could have received adequate treatment in a court of law prior to the war. Jefferson Davis's wife, Varina, reported in her postwar memoir that after resigning his Senate seat after Mississippi's secession in January 1861, her husband remained in Washington for a week, hoping to be arrested in order to create a test case about the legality of secession. See Davis, Varina H., Jefferson Davis: Ex-President of the Confederate States, 2 vols. (New York: Belford, 1890)Google Scholar, 2:3. It is highly doubtful that the government could have proven that Davis or his state had committed treason based on the bare fact of the southern states' secession from the Union, without a war to enforce the purported right, because of the requirement of actual force or violence to prove that a defendant had “levied war” within the constitutional definition of treason. See Ex Parte Bollman, 4 Cranch 75 (1807), 128. Still, even if a treason charge would have been difficult to sustain during the secession winter, it is possible that the right of secession could have been tested in another type of case—such as nonpayment of federal tariffs in the “seceded” states. The larger question of whether a regularly constituted court's—even the Supreme Court's—pronouncement on the legality of secession would have been considered legitimate remains. Given the controversy that erupted after the Supreme Court's 1857 decision in Dred Scott, it seems highly unlikely that any decision on the topic of secession rendered by a “mere” court would have been considered authoritative by the losing party. See Fehrenbacher, Don E., The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford University Press, 1978)Google Scholar.

26. John H. Reagan to “The People of Texas,” August 11, 1865, reprinted in Reagan, John H., Memoirs: With Special Reference to Secession and the Civil War, ed. McCaleb, Walter F. (New York: Neale, 1906)Google Scholar, 287, 289. The editor of Reagan's memoir noted that the advice of his Fort Warren letter proved “distasteful” to the people of Texas. Reagan, Memoirs, 19. See also Procter, Ben H., Not Without Honor: The Life of John H. Reagan (Austin: University of Texas Press, 1962), 171–73Google Scholar.

27. James Longstreet to the Editor, New Orleans Times, April 6, 1867, and New York Times, April 13, 1867. Former U.S. Supreme Court Justice John A. Campbell also agreed with Longstreet's dismal assessment of the utility of the law in the Reconstruction-era South. Campbell insisted that the experience of war had subjected the southern states to “an ordeal of fire,” and that the law and the Constitution itself could no longer protect southerners from the illegal encroachments of the Reconstruction Congress upon their rights (John A. Campbell to James Longstreet, April 5, 1867, and New York Times, April 13, 1867). Campbell had been imprisoned for several months following the war and after his release, according to his biographer, revitalized his law practice by advocating for expanded national authority. See Saunders, Robert Jr., John Archibald Campbell (Tuscaloosa: University of Alabama Press, 1997), 210–14Google Scholar. Longstreet and Campbell's correspondence was reproduced (and praised) by many northern papers, while southerners and northern Democrats branded Longstreet as a traitor. See Daily National Intelligencer [Washington, D.C.], April 13, 1867; Boston Daily Advertiser, April 15, 1867; Milwaukee Daily Sentinel, April 17, 1867. See also Piston, William Garrett, Lee's Tarnished Lieutenant: James Longstreet and His Place in Southern History (Athens: University of Georgia Press, 1987)Google Scholar, 105, for a discussion of reaction to Longstreet's letter.

28. Napton, William B., The Union on Trial: The Political Journals of Judge William Barclay Napton, 1829–1883, ed. Phillips, Christopher and Pendleton, Jason L. (Columbia: University of Missouri Press, 2005)Google Scholar, March 11, 1868, September 15, 1879, 312–13, 530.

29. Charles O'Conor to Fr. Joseph M. Finotti, March 16, 1876, Box 2, Folder 10, Joseph Maria Finotti Papers, Georgetown University Special Collections Library, Washington, D.C.; Charles O'Conor to Robert McKinley Ormsby, October 7, 1867, Charles O'Conor Papers, Houghton Library, Harvard University, Cambridge, Massachusetts.

30. Charles Jenkins to Jeremiah Black, May 8, 1867, Jeremiah Black Papers, Manuscript Division, Library of Congress, Washington, D.C., Reel 23.

31. Ulysses S. Grant to Andrew Johnson, December 18, 1865, The Papers of Ulysses S. Grant, 28 vols., ed. John Y. Simon (Carbondale: Southern Illinois University Press, 1967), 15:434.

32. “The Right of Conquest,” New Hampshire Statesman, September 15, 1865.

33. “What Shall be Done with Him?” Chicago Tribune, May 19, 1865; “Object of Jeff Davis' Trial,” Chicago Tribune, November 14, 1865.

34. Stephens, Alexander, Recollections of Alexander H. Stephens, ed. Avary, Myrta Lockett (New York: Doubleday, Page, 1910), 201Google Scholar.

35. Stephens, Alexander, A Constitutional View of the Late War between the States, 2 vols. (Philadelphia: National, 1868)Google Scholar, 2:658–59. Stephens believed that the right of secession might have a fair hearing in “judicial tribunals” when ex-Confederates were tried for treason. By submitting his own amnesty petition, Stephens ensured that his own case would not be among these. Stephens intimated that he believed the federal government shied away from trying Jefferson Davis for treason because his secessionist principles would thereby achieve vindication in a court of law. (Ibid., 2:664.)

36. Early, Jubal A., The Heritage of the South (Lynchburg, Va.: Press of Brown-Morrison Co., 1915), 116–18Google Scholar. Early's book was published in 1915, by his niece, but it was written by Early immediately after the Civil War, probably some time in 1865. See Early, Heritage of the South, 1.

37. “What the War Settled,” Old Guard (New York, N.Y.), August, 1869, 628–30. For information about Burr and his newspaper, see Mott, Frank Luther, A History of American Magazines, 1850–1865 (Cambridge, Mass: Belknap Press of Harvard University Press, 1957), 544–46Google Scholar; Gray, Wood, The Hidden Civil War: The Story of the Copperheads (New York, Viking, 1964)Google Scholar, 214, referring to Burr as a “specialist in extremism.”

38. “State Sovereignty Not Dead,” The Old Guard 4 (May 1866): 257–66.

39. Curry, J. L. M., “Did General Lee Violate his Oath in Siding with the Confederacy?Southern Historical Society Papers 6 (August 1878): 5459Google Scholar. See also Curry, J. L. M., The Southern States of the American Union: Considered in their Relations to the Constitution of the United States and to the Resulting Union (Richmond, Va.: B. F. Johnson, 1895), 226Google Scholar.

40. Bledsoe, Albert, Is Davis a Traitor, or Was Secession a Constitutional Right Prior to the War of 1861? (Baltimore: Innes, 1866)Google Scholar.

41. Bledsoe, Albert, Prison Life of Jefferson Davis, Southern Review (January 1867): 244–45Google Scholar (book review).

42. See, for example, Wheaton, Henry, Elements of International Law, ed. Dana, Richard Henry (Boston: Little Brown, 1866)Google Scholar, §16, 19. Granting the Confederacy the status of a belligerent allowed the United States to blockade its ports and to initiate prisoner exchange with its officials, among other things.

43. Prize Cases, 67 U.S. 635, 673 (1862).

44. Article III, section 2 of the Constitution grants original jurisdiction to the Supreme Court in any suit in “which a state shall be a party.” At issue in the suit was the ability of certain bondholders to receive payment on United States bonds given to Texas as part of the Compromise of 1850. Texas had sold some of the bonds to the defendants in the midst of the Civil War pursuant to a state act to “provide funds for military purposes,” in exchange for supplies. Because the supplies had never materialized, Texas sued the defendants after the war for recovery of the bonds, arguing both that the state, while in rebellion, was unauthorized to sell bonds for the “purpose of aiding the overthrow of the Federal government,” and that the state had never received payment for the bonds. White defended the suit on the grounds that, among other things, Texas was not currently one of the United States and could not therefore file suits invoking the original jurisdiction of the Supreme Court. The Court ultimately decided that Texas was entitled to restitution from the defendants who had purchased the bonds directly from the state, but not from subsequent bona fide holders of the notes.

45. Texas v. White, 74 U.S. 700, 725 (1869).

46. Ibid., at 737, 739–40 (Grier, J., dissenting).

47. Thaddeus Stevens, Speech of December 18, 1865, http://www.let.rug.nl/usa/D/1851-1875/reconstruction/steven.htm.

48. Massachusetts senator Charles Sumner, often linked with Stevens as two of the most radical Republicans, endorsed the “state suicide” theory of the Union, which postulated that the states, in attempting to secede, had essentially self-destructed and reverted to territorial status, by attempting an illegal act. Although Sumner's theory of “state suicide” is often mentioned in the same breath as Stevens's conquered province theory, the two differed mightily with respect to the view of secession implicit in each theory. While the conquered province theory tacitly endorsed the legitimacy of secession while it was tested during the war, the state suicide theory was premised upon the notion that secession had been illegal in 1861, so that the states who attempted it immediately ceased to exist as states. Nonetheless, Sumner, who had taught international law at Harvard for a number of years before being elected to the Senate, often referred to international contests between nations as “duels” or “trial[s] by battle,” or “arbitrament[s] of arms.” Sumner did, however, condemn “as barbarous and unchristian, the resort to external Force” to settle international disputes. See Charles Sumner, The True Grandeur of Nations: An Oration Delivered Before the Authorities of the City of Boston, July 4, 1845 (Boston: William D. Ticknor, 1845), preface; and “Sumner on the War,” New York Times, October 27, 1870. Sumner, interestingly, never discussed the American Civil War in the context of international contests of force.

49. Thaddeus Stevens, “Reconstruction,” Stevens to the people of Lancaster, September 6, 1865; “Reconstruction,” December 18, 1865, speech to the U.S. House of Representatives, in Selected Papers of Thaddeus Stevens, 2 vols., ed. Beverly Wilson Palmer (Pittsburgh, Pa.: University of Pittsburgh Press, 1997), 2:24, 46. For a discussion of Stevens's conquest theory, see Eric McKitrick, Andrew Johnson and Reconstruction, 99–101; Trefousse, Hans L., Thaddeus Stevens: Nineteenth Century Egalitarian (Chapel Hill: University of North Carolina Press, 1997), 217–18Google Scholar. Stevens died in 1868 and thus did not weigh in on Grier's Texas v. White dissent.

50. See Pennywit v. Kellogg, 13 Ohio Dec. Reprint 389, 391 (1870), Smith v. Brazelton, 48 Tenn. 44, 47 (1870), Hall v. Keese, 31 Tex. 504, 529 (1868), Scheible v. Bacho, 41 Ala. 423, 431 (1868), Mayer v. Reed 37 Ga. 482, 486 (1867) Hill v. Boyland, 40 Miss. 618, 626 (1866), all quoting Grier. For a discussion of some of the legal problems that came out of the war, see Surrency, Edwin C., “The Legal Effects of the Civil War,” American Journal of Legal History 5 (1961): 145–65CrossRefGoogle Scholar.

51. Caperton v. Martin, 4 W.Va. 138, 152 (1870). See also “Charge to the Grand Jury at Richmond,” Daily National Intelligencer [Washington, D.C.], November 10, 1865.

52. Recognizing the Confederate government's de facto status (a term that carried indefinite legal connotations) would have validated everyday legal actions—such as marriages, contracts, wills—that had taken place in the Confederate states during the Civil War, while denying legal recognition of Confederate acts that furthered the war effort. In Keppel's Admrs. v. Petersburg R.R. Co., 14 F. Cas. 367 (1868), Chief Justice Chase ruled that ordinary legal transactions that had occurred in the Confederacy would be recognized by United States courts, although he objected to the use of the term “de facto” in describing the legal status of the Confederate government. The Supreme Court affirmed the Confederacy's de facto legal status in Ford v. Surget, 97 U.S. 594 (1878), (Clifford, J., concurring). See also Weitz, Mark A., The Confederacy on Trial: The Piracy and Sequestration Cases of 1861 (Lawrence: University of Kansas Press, 2005)Google Scholar; Surrency, “Legal Effects of the Civil War,” 150–64.

53. Walker v. Christian, 62 Va. 291, 296 (1871). Another American who admitted that Confederate victory would have constrained northern courts to find secession constitutional was George Ticknor Curtis, whose writings are discussed below.

54. Other Reconstruction-era cases discussing the Civil War as a trial by battle include Keppel v. Petersburg R. Co., 14 F. Cas. 357 (N.C. 1868), McCafferty v. Guyer, 59 Pa. 109 (1868), Green v. Sizer, 40 Miss. 530 (1866), and Bilgerry v. Branch, 60 Va. 393 (1869). In Keppel, government attorney H. H. Wells argued, employing Grier's “wager of battle” language from the Prize Cases, that the legitimacy of secession would have been definitively established had the Confederacy won the war, just as it was now irrefutably defunct because of the triumph of Union forces. See Keppel, 359.

55. Lea, Superstition and Force, 1, 73.

56. “Trial by Ordeal,” Albany Law Journal 1 (1870): 305. See also “An Interesting Scrap of Legal History,” Milwaukee Daily Sentinel, May 15, 1867, “Trial by Battle,” Cornhill Magazine 22 (1870): 715–37; “The Marriage Laws—No. II,” Upper Canada Law Journal 3 (1867).

57. Stocking, George, Victorian Anthropology (New York: Free Press, 1987)Google Scholar. See also Elias, Norbert, The Civilizing Process: The History of Manners, 2 vols. (New York: Urizen, 1939)Google Scholar. The notion of human progress was linked to Darwinism, and later, to Social Darwinism.

58. On the subject of Victorians' obsession with manners and the civilization, see generally Haltunnen, Karen, Confidence Men and Painted Women (New Haven, Conn.: Yale University Press, 1982)Google Scholar, esp. 92–123; Bederman, Gail, Manliness and Civilization (Chicago: University of Chicago Press, 1995), 2331CrossRefGoogle Scholar; Howe, Daniel Walker, “Victorian Culture in America,” in Victorian America, ed. Howe, Daniel (Philadelphia: University of Pennsylvania Press, 1976), 328Google Scholar; Persons, Stow, The Decline of American Gentility (New York: Columbia University Press, 1973), 1129Google Scholar; Mintz, Steven, A Prison of Expectations: The Family in Victorian Culture (New York: New York University Press, 1983), 8081Google Scholar; Kasson, John F., Rudeness and Civility: Manners in Nineteenth-Century Urban America (New York: Hill and Wang, 1990)Google Scholar.

59. See George Stocking's discussion of the work of Sir Henry Maine in his Victorian Anthropology, 117–28. Phillip Paludan's “The American Civil War Considered as a Crisis in Law and Order,” and A Covenant with Death, and Bestor's, ArthurThe American Civil War as a Constitutional Crisis,” American Historical Review 49 (1963): 327–52Google Scholar, explore Civil War Americans' attachment to the rule of law. For a philosophical discussion of the function of law in society, see Arnold, Thurman W., The Symbols of Government (New Haven, Conn.: Yale University Press, 1935)Google Scholar.

60. One historian referred to Lea as “America's most prominent medievalist of the nineteenth century, while another called him “the greatest historian in nineteenth-century America and the most accomplished American historian of medieval Europe before [early twentieth-century historian] Charles Homer Haskins.” O'Brien, John M., “Henry Charles Lea: The Historian as Reformer,” American Quarterly 19 (1967) 104CrossRefGoogle Scholar; Peters, Edward, “Henry Charles Lea, 1825–1909,” in Medieval Scholarship: Biographical Studies on the Formation of a Discipline, 3 vols., ed. Damico, Helen and Zavadil, Joseph B. (New York: Garland, 1995)Google Scholar, 1:89.

61. Bradley, Edward Sculley, Henry Charles Lea: A Biography (Philadelphia: University of Pennsylvania Press, 1931), 77122Google Scholar.

62. Henry C. Lea to John Bell, n.d., 1861, Box 3, Henry C. Lea Papers, University of Pennsylvania Special Collections Library, Philadelphia, Pennsylvania (collection cited hereafter as Lea Papers).

63. “The Way out of Barbarism,” The Nation, September 13, 1866, 208–9. Lea saved a clipping of this review in his personal papers. Lea Papers, Box 158.

64. Gray, Roland, John Chipman Gray (Boston: Massachusetts Historical Society, 1916), 14Google Scholar. For more details about Gray's life and his law partnership with John C. Ropes, see Borden, Albert, Ropes-Gray, 1865–1940 (Boston: Lincoln and Smith, 1942)Google Scholar.

65.Superstition and Force, by Henry C. Lea,” American Law Review 1 (1867): 378. See also John C. Gray to Henry C. Lea, July 27, 1866, Lea Papers, Box 9.

66. John Chipman Gray to Henry C. Lea, March 15, 1867, Lea Papers, Box 9.

67. Lea, Superstition and Force, 199. Lea's new 1870 edition still did not discuss the Civil War in the context of trial by battle.

68. John C. Gray Jr. to John C. Gray Sr. May 14, 1865. Gray, John Chipman and Ropes, John Codman, War Letters, 1862–1865 (Boston: Riverside, 1927), 484–85Google Scholar.

69. See Vann Woodward, C., The Burden of Southern History (Baton Rouge: Louisiana State University Press, 1993)Google Scholar.

70. Frothingham, Richard, Rise of the Republic of the United States (Boston: Little, Brown, 1872), 34Google Scholar, 608.

71. “Senator Doolittle's Madison Speech,” Chicago Tribune, October 12, 1865.

72. Melville, Herman, “The Fall of Richmond: The Tidings Received in the Northern Metropolis,” in Battle-Pieces and Aspects of the War: Civil War Poems (New York: De Capo, 1995), 136Google Scholar. See Nabers, Deak, “‘Victory of Law’: Melville and Reconstruction,” American Literature 75 (2003): 130CrossRefGoogle Scholar; Nabers, Deak, Victory of Law: The Fourteenth Amendment, the Civil War, and American Literature, 1852–1867 (Baltimore: Johns Hopkins University Press, 2006)Google Scholar.

73. Harper's Weekly, April 6, 1867. For a discussion of Civil War Americans' struggle to give meaning to the massive scale of death and dying in the war, albeit in a much different context, see Drew Gilpin Faust, This Republic of Suffering: Death and the American Civil War (New York: Alfred A. Knopf, 2008).

74. Pomeroy, John Norton, An Introduction to the Constitutional Law of the United States (New York: Hurd and Houghton, 1868), 21Google Scholar. See also Larsen, Charles E., “Nationalism and States' Rights in Commentaries on the Constitution After the Civil War,” American Journal of Legal History 3 (1959): 360–69CrossRefGoogle Scholar; Paludan, Phillip S., A Covenant with Death: The Constitution, Law, and Equality in the Civil War Era (Urbana: University of Illinois Press, 1975), 219–48Google Scholar.

75. Redfield's letter was published in pamphlet form. Redfield, Isaac, Judge Redfield's Letter to Senator Foot (New York: Hurd and Houghton, 1865), 78Google Scholar. Redfield's (and others') insistence on the legitimacy of war to settle the question of secession is somewhat at odds with the premises of international law, which sought to substitute legal rules for the Hobbesian state of nature in which nations related to one another. See, for example, Wheaton, Elements of International Law, §§1–15.

76. Redfield, Letter to Senator Foot, 9.

77. Curtis also believed, along with Judge Redfield, that northern victory in the trial by battle over secession might lead down the slippery slope towards complete “consolidation” of the federal Union and urged his fellow northerners to guard against this occurrence. Curtis, George Ticknor, A Discourse on the Nature of the American Union, as the Principal Controversy Involved in the Late Civil War (New York: E. P. Dutton, 1875), 3031Google Scholar.

78. Curtis, Discourse, 24–26, 28, 31. Curtis expressed the same sentiments about the war twenty years later in his Constitutional History of the United States. See Curtis, George Ticknor, Constitutional History of the United States, 2 vols. (New York: Harper's, 1895–1896)Google Scholar, 2:293, 294, 300.

79. Congressional Record, August 4, 1876, 44th Cong., 1st sess., 5180. See also Adams, John Quincy II, Massachusetts and South Carolina (Boston: J. E. Farwell, 1868), 1113Google Scholar.

80. Interestingly, Garfield exhibited much more certainty about the completeness of Union victory upon taking the presidential oath of office almost five years later. In his inaugural address, Garfield insisted that “the supremacy of the nation and its laws should no longer be a subject of debate. That discussion, which for half a century threatened the existence of the Union, was closed at last in the high court of war by a decree from which there was no appeal—that the Constitution, and the laws made in pursuance thereof, are and shall continue to be the supreme law of the land, binding alike upon the States and the people.” James Garfield, “Inaugural Address,” March 4, 1881, http://www.bartleby.com/124/pres36.html.

81. Brownson, Orestes A., “Slavery—Abolitionism,” Boston Quarterly Review 1:242, 157 (1838)Google Scholar.

82. Brownson, Orestes A., The American Republic (New York: P. O'Shea, 1865), xiGoogle Scholar. See also Carey, Patrick W., Orestes Brownson: American Religious Weathervane (Grand Rapids, Mich.: William B. Eerdmans, 2004), 336–43Google Scholar; Marshall, Hugh, Orestes Brownson and The American Republic: An Historical Perspective (Washington, D.C.: Catholic University of America Press, 1971), 220–40Google Scholar; Schlesinger, Arthur Jr., A Pilgrim's Progress: Orestes A. Brownson (Boston: Little, Brown, 1966), 259–60Google Scholar. A Confederate who did admit that his opinion on secession's constitutionality changed as a result of the war was David Levy Yulee, a former U.S. senator from Florida who had been arrested and held at Fort Pulaski following the war. Yulee told President Johnson in his amnesty petition: “I frankly own that events have seriously shaken the foundations of my opinions, and to much extent affected my views.” He declined to elaborate further, fearing that his present posture as a penitent prisoner might call the veracity of his statement into question. David L. Yulee to Andrew Johnson, June 24, 1865, U.S. War Department, The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, 127 vols., (Washington: GPO, 1880–1901)Google Scholar, 121:670.

83. Brownson, The American Republic, 334–35, 7, 8.

84. Spooner intimated that he might have been more friendly towards a war waged to liberate southern slaves, but he insisted that northerners had not fought the Civil War with this purpose in mind. Because no higher purpose had animated the northern war effort, there was no justification for forcing the recalcitrant South to remain in the Union.

85. Spooner, Lysander, No Treason, No. 1 (Boston: Self-published, 1867)Google Scholar, 5, http://www.lysanderspooner.org/notreason.htm.

86. “Speech of the Honorable Charles Sumner,” February 21, 1854, in The Nebraska Question: Comprising Speeches in the United States Senate (New York: Redfield, 1854), 117.

87. J. P. B., “Settlement by War,” Advocate of Peace, November/December 1865, 366; Philadelphia Christian Recorder, May 18, 1867.

88. Hurd, John Codman, Theory of Our National Existence (Boston: Little, Brown, 1881)Google Scholar. Hurd's book drew on ideas he first articulated in a Reconstruction-era law review article. See Hurd, John Codman, “Theories of Reconstruction,” American Law Review 1 (1867): 238Google Scholar. While Hurd's “Theories of Reconstruction” and his 1890 book The Union-State demonstrated a strongly Republican point of view on the Civil War, his Theory of Our National Existence did not ultimately take any position. Hurd in fact acknowledged that many Americans (before 1861), including a number of the Founders, quite rationally believed the states to be the ultimate sovereign, and the Union to be merely their creature. See Hurd, Theory of Our National Existence, 101–3, 285–86. Reviews of Hurd's book complained about his refusal to take any definitive stand. See “Constitutions of the New World and Old,” Law Magazine and Review Quarterly 7 (1881–1882): 178; Theory of Our National Existence, American Law Review 16 (1882): 389 (book review). Hurd also received a letter from historian George Bancroft about the argument of his book, which Bancroft confessed he had not “been able to get the key to.” George Bancroft to John Codman Hurd, October 7, 1881, Box 3, Folder 150, Ellis Gray Loring Papers, Schlesinger Library, Harvard University, Cambridge, Massachusetts.

89. Hurd, Theory of Our National Existence, 1, 89, 449, 480.