[The Last Battle of the Civil War: United States Versus Lee, 1861-1883 by Anthony Gaughan (Louisiana State University Press, 2011). Cloth, 3 maps, photos, notes, bibliography, index. Pages main/total:207/263. ISBN:9780807137741 $42.50]
The years before, during, and after the Civil War witnessed several landmark high court rulings dealing with the power of the federal government and the civil rights of individuals, and many have been the subject of book length studies of their own [there are two Merryman books scheduled for release this year alone], but Anthony Gaughan's The Last Battle of the Civil War is the first to fully examine the details and legal-historical context of the case of United States v. Lee (1882). During the Civil War, the 1,100 acre Arlington estate was seized by the U.S. army and incorporated into the capital defenses. Later, the entire property (worth over $100,000 and owned by Robert E. Lee's wife, Mary) was auctioned off for failure to pay property tax under the selectively punitive Doolittle Act and sold to the federal government. Fortifications were constructed on the land, as well as a military cemetery (which would, of course, become Arlington National Cemetery) and freedman's village. In 1877, the estate's heir, ex-Confederate general George Washington Custis Lee, sued the government for just compensation. Lee won his title ownership case in the lower court. By the time of Lee's suit, prior cases had already ruled that the Doolittle Act (and its requirement of payment in person) was illegal. The government also violated the takings clause of the Fifth Amendment by not obtaining the approval of the state legislature (in this case, the "Free" government of Virginia in Wheeling) and not compensating the owner.
Author Anthony Gaughan, both a lawyer and professional historian, does an excellent job of making the legal aspects of his study clear and accessible to the general reader. He also brings a refreshingly dispassionate perspective to the arguments of each side. Supported by strong precedent, Lee's case was clearly the strongest, but the government would not give up on claiming full title to the property and immunity. Gaughan's discussion of the legislative disagreements surrounding the case, flavored by the U.S. Senate's distaste for awarding large sums to former rebels (especially the son of Robert E. Lee!), are also informative, providing much insight into the political climate of the day. The author's assertion that the refusal by New York firebrand Roscoe Conkling of a Supreme Court appointment was a key factor in assuring Lee's victory is also persuasive.
United States v. Lee sought to argue that the federal government had sovereign immunity under traditional English law and thus could not be sued by individuals. The government lawyers also aimed to throw out established U.S. law in the form of officer suits, basically the only legal recourse private citizens had to press claims against the federal government [Lee's case named two officers of the government and the occupants of the freedman's village]. By a 5-4 vote, the high court, all Republican appointees, ruled against the government, the majority opinion reinforcing the previously unsettled notion that the law of the land applies to citizens and government officials alike. While the closeness of the vote also undoubtedly reflected lingering bitterness from the Civil War, the court's minority opinion that the federal government had absolute sovereign immunity for executive action would have had a chilling effect on individual property rights. The fact that aggrieved citizens had the ability to petition Congress for redress was acknowledged by all objective observers as useless in practice and not at all analogous to the English petition right. By placing the government's actions, in times of peace and war, subject to judicial review, United State v. Lee was both a personal triumph for Lee and a landmark case for the rights protections of all citizens.
As one might imagine, there were instances of northern public dissent to the court's ruling, but the result of the case was widely lauded by newspapers from both sections. Gaughan quite reasonably views the case as a symbol of sectional reconciliation, a demonstration that former Confederates could expect justice from federal courts. One thought experiment not explored by the author was the possibility that, if after a long and bloody war nine Republican Supreme Court justices could rule against a Republican government and for a prominent ex-Rebel, then there existed before the war an excellent chance the South could have secured their "rights" as they saw them through judicial means rather than resorting to secession. But hindsight is 20/20. The narrative of The Last Battle of the Civil War brings to light in effective scholarly fashion a greatly underappreciated event of American jurisprudence and is richly deserving of a wide readership.
More CWBA reviews of LSU Press titles:
* Confederate Guerrilla: Champ Ferguson and the Civil War in Appalachia
* Lincoln and Citizens' Rights in Civil War Missouri: Balancing Freedom and Security
* War No More: The Antiwar Impulse in American Literature, 1861-1914
* Isham G. Harris of Tennessee: Confederate Governor and United States Senator
* Executing Daniel Bright: Race, Loyalty, and Guerrilla Violence in a Coastal Carolina Community 1861-1865
* Mosquito Soldiers: Malaria, Yellow Fever, and the Course of the American Civil War
* Homegrown Yankees: Tennessee's Union Cavalry in the Civil War
* John Bankhead Magruder: A Military Reappraisal
* A Wisconsin Yankee in the Confederate Bayou Country: The Civil War Reminiscences of a Union General
* Bleeding Borders: Race, Gender, and Violence in Pre-Civil War Kansas
* Jefferson Davis and the Civil War Era
* Where Men Only Dare to Go Or the Story of a Boy Company, C.S.A.
* Encyclopedia of Civil War Shipwrecks
* Walker’s Texas Division, C.S.A.: Greyhounds of the Trans-Mississippi
* The Confederate Cherokees: John Drew's Regiment of Mounted Rifles
* A Crisis In Confederate Command: Edmund Kirby Smith, Richard Taylor, And The Army Of The Trans-Mississippi
* The Fredericksburg Campaign: Winter War on the Rappahannock