Thursday, October 19, 2017

Nicoletti's "Secession on Trial"

We know Secession on Trial: The Treason Prosecution of Jefferson Davis is out, because we saw a copy when Cynthia Nicoletti, Virginia Law, drew upon it in delivering her  Leon Silverman Lecture (a series sponsored by the Supreme Court Historical Society) at the Supreme Court last night.  The book appears in the ASLH series Studies in Legal History, published by the Cambridge University Press.
This book focuses on the post-Civil War treason prosecution of Confederate President Jefferson Davis, which was seen as a test case on the major question that animated the Civil War: the constitutionality of secession. The case never went to trial because it threatened to undercut the meaning and significance of Union victory. Cynthia Nicoletti describes the interactions of the lawyers who worked on both sides of the Davis case - who saw its potential to disrupt the verdict of the battlefield against secession. In the aftermath of the Civil War, Americans engaged in a wide-ranging debate over the legitimacy and effectiveness of war as a method of legal adjudication. Instead of risking the “wrong” outcome in the highly volatile Davis case, the Supreme Court took the opportunity to pronounce secession unconstitutional in Texas v. White (1869).
Here are some endorsements:
“Cynthia Nicoletti tackles a hugely important topic: the post-Civil War resolution of the legal status of the Confederacy. The prosecution of Jefferson Davis squarely posed the question whether the Confederacy had become a separate country by seceding. If it had, southerners insisted there could be no treason. If it had not, many of the war powers asserted by the North would be called into question. Nicoletti brilliantly tracks the efforts of jurists and politicians to work through momentous questions about the American constitutional order.”

John Fabian Witt - Yale Law School, Connecticut, and author of Lincoln’s Code: The Laws of War in American History

“Nicoletti’s beautifully written book studies a crucially important trial that never happened. She situates Davis’s treason case in the wider context of public discussions about how to treat officials of the former Confederacy and what to do about secession. Law, as Nicoletti argues, was not separate from other aspects of life in this period; it was deeply implicated within them and, thus, inseparable from them.”

Laura Edwards - Peabody Family Professor of History, Duke University, North Carolina and author of A Legal History of the Civil War and Reconstruction: A Nation of Rights

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