George Rutherglen

The Rule of Recognition in Reconstruction: A Review of Secession on Trial: The Treason Prosecution of Jefferson Davis, by Cynthia Nicoletti

PUBLISHER
Virginia Law Review
DATE
2017
 

Abstract

In this book,' Professor Cynthia Nicoletti demonstrates, through an examination of the historical record that leaves no stone unturned, that secession remained an open question after the Civil War. Victory in the Civil War had established de facto Union authority over the former Confederate states, and had made the illegality of secession a foregone conclusion, at least in the eyes of almost all observers today. Perceptions differed at the time, however, over the legal implications of military victory, and many prominent politicians, lawyers, and judges could not figure out how to translate de facto Union authority into the de jure illegality of secession. Legal theory at the time did not have the resources to absorb the implications of "trial by battle" as a necessary element of the rule of law.

Nicoletti recounts all this in a dramatic account of the treason prosecution of Confederate President Jefferson Davis that proceeds simultaneously at two extremes: practical tactics in litigation and high principles of constitutional law. Delay, deception, and encoded communications with his client formed the core of Charles O'Conor's strategy in defending Davis. Nicoletti brings O'Conor back to life as one of the leading lawyers of his generation, who nevertheless held irredeemably racist and secessionist views.

 

Citation

George Rutherglen, The Rule of Recognition in Reconstruction: A Review of Secession on Trial: The Treason Prosecution of Jefferson Davis, by Cynthia Nicoletti, 103 Virginia Law Review 72-94 (2017).
 

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