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Constitutional problems under Lincoln

01 Jan 1926-
About: The article was published on 1926-01-01 and is currently open access. It has received 92 citations till now.
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TL;DR: The authors examines various aspects of legal development during the Civil War, which went beyond affirming the perpetuity of the Union and resolving the fate of slavery to involve an expansion of the borders and mechanics of state coercion during a time of crisis, a more robust role for the federal government in promoting economic development, and the formulation of a better defined understanding of national citizenship.
Abstract: This essay examines various aspects of legal development during the Civil War, which went beyond affirming the perpetuity of the Union and resolving the fate of slavery to involve an expansion of the borders and mechanics of state coercion during a time of crisis, a more robust role for the federal government in promoting economic development, and the formulation of a better defined understanding of national citizenship. Many of these events were unforeseen as of April 1861 and all of them were shaped by wartime circumstances, highlighting how legal development is influenced by politics, society, and other factors in ways that are not predetermined. An overarching theme emerges in Civil War legal development, even when specific components seem unrelated: the strengthening of the U.S. as a nation-state (meaning here something beyond maintenance of the territorial integrity of the U.S., critical though that was). The Civil War removed the one issue in U.S. history – slavery – so politically divisive it could rend the Union. Structural initiatives, such as railroad construction and banks, helped link markets and improve communications nationwide, while the end of slavery placed the entire reunified U.S. within the free labor ideology. While federalism remained important during the 1860s and remains so to this day, the federal government that emerged from the Civil War could play a greater role in shaping economic development (shifting the pendulum from the paradigm of the Jeffersonians and Jacksonian Democrats to the model of the Hamiltonians and Whigs) and safeguarding rights newly associated with national citizenship (in contrast to citizenship in the antebellum period, when states had much broader prerogatives to determine rights for people within their borders).
01 Jan 2016
TL;DR: Habeas corpus has long occupied an honored place in the pantheon of civil liberties as mentioned in this paper and has been widely used in the legal system of the United States since the early seventeenth century.
Abstract: Habeas corpus has long occupied an honored place in the pantheon of civil liberties. Blackstone described habeas corpus as "the most celebrated writ in the English law" and boasted that it was "great and efficacious . . . in all manner of illegal confinement."1 Although there is a vast literature on particular aspects of the writ and its contemporary application, William Duker has written the first comprehensive account of the evolution of habeas corpus. Duker briefly treats the various species of the writ, but naturally concentrates on the important writ of habeas corpus ad subjiciendum. Throughout the book Duker strives to study the writ in a broad intellectual context, and he emphasizes that changes in habeas corpus have often been the inintended result of larger political struggles. The history of habeas corpus illustrates anew the genius of the AngloAmerican legal system for adopting ancient forms to novel uses. Originally a device for compelling attendance before royal courts, by the fourteenth century habeas corpus was being employed by superior courts to extend their jurisdiction at the expense of local tribunals. The writ began to assume its modern role as a protection against arbitrary arrest during the seventeenth-century struggle among rival superior courts. This transformation was completed when the courts used habeas corpus to question the validity of commitments made by the Privy Council. Attempts by the Stuart kings to resist or evade the writ served to stengthen it through the Petition of Right and the Habeas Corpus Act of 1679. The scope of inquiry provided by the writ, however, was limited at common law to a determination of jurisdiction. If the applicant had been committed by a competent court, he could not be discharged by habeas corpus. In short, habeas corpus was not an avenue of appeal from wrongful conviction. Duker describes in detail the reception of habeas corpus as part of the common law in the American colonies. His account of the confusing reception process presents some difficulties. I question whether "the colonies were generally considered infidel kingdoms" (p. 96). Certainly the colonies