Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Legal Lore of the Civil War

The 150th anniversary of the war’s end offers a reminder of Minnesota’s role in the case that made the Great Conflict inevitable.

The 150th anniversary of the end of the Civil War is being celebrated in Minnesota and elsewhere over the coming month. The conflict between the states effectively concluded on April 9, 1865, with the surrender of General Robert E. Lee to Union forces led by Ulysses S. Grant at Appomattox Courthouse, although guerrilla-style skirmishes continued sporadically for several more weeks after the truce.

During the four years that it raged, the war caused an estimated 620,000 military casualties – the greatest loss of American life in any war to date. Minnesota made more than its share of contributions to the Union’s military cause.  It sent the first volunteers to the Union army—about 1,000 men—after rebel forces fired on Fort Sumter, and the illustrious 1st Minnesota regiment played a decisive role in repelling Confederate forces at Cemetery Ridge during the second day of the tide-turning Battle of Gettysburg.

Minnesota law also felt the effects of the war in several ways.

Dreadful Decision

The long-simmering and escalating sectional dispute over slavery was the major catalyst of the Civil War.
Minnesota was at the heart of the
controversy, even before the jurisdiction became a state.

Events occurring years ago in what was then an area that later became the Minnesota territory gave rise to the infamous Dred Scott case, in which the U.S. Supreme Court validated slavery and insulated it from legal challenge.  Known officially as Scott v. Sandford, the case raised what one anonymous High Court jurist termed “constitutional principles of the highest importance.”1

The Scott litigation itself arose in both the Missouri state and federal court systems, was argued twice before the United States Supreme Court, and was decided in 1857, one year before Minnesota became a state.  The holdings of Dred Scott?that slaves are not “citizens” under the Constitution, that residing in “free” territory does not emancipate a slave, and that the due process provision of the 5th Amendment prohibits Congress from legislating against slavery?had dreadful consequences, precipitating the Civil War four years later.   Historians have rightfully excoriated the Court for exhibiting an “amazing lack of moral or political wisdom,” one of them terming the decision “the most disastrous ever handed down by the Supreme Court.”

Scott, originally a slave in Missouri, had sued for his freedom on the basis that he and his wife had lived at Fort Snelling in the future Minnesota territory from 1836 to 1838, while enslaved to a military doctor, before being returned to the slave state of Missouri. (Slavery had been proscribed in what was then known as the Upper Louisiana Territory according to the terms of the Missouri Compromise Act of 1820.)

At the conclusion of four blood years of war, the legal damage caused by the Dred Scott decision was rectified by the Civil War Amendments to the Constitution: the 13th (barring slavery), the 14th (privileges and immunities, equal protection, and due process clauses), and the 15th (right to vote).

The case also helped to elect a president: Following his loss to Stephen A. Douglas in the 1858 U.S. Senate race, Abraham Lincoln saw his political career re-launched by the Scott decision, and expressly acknowledged as much. One and a half years into his presidency, Lincoln issued the Emancipation Proclamation, freeing all slaves in Union-occupied territory while preserving the practice in border states loyal to the Union.  It took the 13th Amendment to put a formal end to involuntary servitude throughout the nation.

Constitutional Considerations

Although never practiced in Minnesota, and expressly prohibited by law, slavery played a role in Minnesota’s birth.  When Minnesota entered the Union in 1858, it was joined by Kansas, where the legitimacy of slavery was an open issue.  The open warfare over slavery in Kansas, which prompted the term “bloody Kansas,” was yet another factor in precipitating the Civil War, along with the Dred Scott decision.

Shortly after the Civil War, Minnesota voters twice defeated measures to amend the constitution to allow African-Americans to vote.  The voters finally approved the measure in 1868, but the decision proved to be nearly superfluous: Two years later, the 15th Amendment to the U.S. Constitution was ratified, granting citizens the franchise regardless of race.

But Minnesota was ahead of the curve with respect to women’s suffrage.
In 1875, the Constitution was amended to grant women the right to vote in school board elections; this was nearly 45 years before the United States Constitution eliminated voting restrictions by gender.  In 1898 a constitutional amendment gave women the right to vote for library boards and serve on those bodies.

Minnesota also got the jump on lowering the voting age.  In 1970, the electorate approved reducing the voting age from 21 to 19 years of age, which preceded by a year the ratification of the federal 26th Amendment, which lowered the voting age to 18 for all Americans.

The abolition of slavery, one of the legacies of the Civil War, is reflected in some Minnesota cases.  A century later, the ban on slavery and involuntary servitude was held not to extend to compulsory military service in U.S. v. Crocker.2   The 8th Circuit affirmed a ruling by Judge Philip Neville in Minnesota upholding the constitutionality of the military draft over 13th Amendment objections, which had been “squarely forced, and rejected” by other Courts as well.3

More than two decades later, Judge Harry McLaughlin of the Federal Court in Minnesota held that the 13th Amendment prohibitions do not extend to work performed by prison inmates “who have been convicted of crimes” in McMaster v. State.4

Lincoln Legacy

While he never set foot in Minnesota, President Abraham Lincoln played a role in the law in this state.  Shortly after his Presidency began, he welcomed to the White House one of Minnesota’s first two United States senators (then elected by a vote of the state legislature), Morton Wilkinson.  Lincoln expressed his praise for the “rapid advance of everything desirable in that young sister in the republic ? Minnesota ? … the people up your way have very correct political views…”

A short time later, Lincoln had to deal with his first major legal issue in Minnesota, arising out of strife between Dakota Indian bands and white settlers in the southwestern part of the state in the summer of 1862.  The discord culminated in the deaths of a number of homesteaders in the New Ulm area, prompting Lincoln to dispatch his personal secretary and the Commissioner of Indian Affairs to assess the situation and quiet the growing hysteria.

Minnesota militia captured and tried 303 Indians, who were sentenced to death by a military tribunal without counsel.  They were convicted as “belligerents of a sovereign nation” rather than as domestic criminals.

Lincoln intervened, imposing Federal authority to stay their executions until he could review their cases.  Beset by conflicting advice, Lincoln concurred that 39 of the group warranted the death sentence, while the rest were imprisoned indefinitely, which proved fatal to many of them due to brutal conditions of confinement.  To calm protests, Lincoln agreed to monetary compensation and to move the remaining tribe members from Minnesota.

The sanctions were viewed as too harsh by many, while others, including the state’s governor, Alexander Ramsey, criticized Lincoln for being too lenient. Ramsey, for whom the county was later named, told Lincoln that he would have received more political support from Minnesota if he “had hung more Indians,” to which Lincoln replied:  “I cannot afford to hang men for votes,” as recounted in E. Henty’s “Abraham Lincoln: The jurist of the Civil War.”5

More than a century later, Lincoln’s legacy was reflected in a case decided by the Minnesota Court of Appeals regarding the jurisdiction of state courts over activities conducted on Native American tribal reservations.  In one 1997 case, the appellate court affirmed a ruling of the Redwood County District Court upholding a jurisdiction over contracts and decisions regarding those documents, deeming the exercise of judicial authority not unduly intrusive on the Indian tribal government.6  But Judge James Randolph, concurring specially, ruminated at length about the independence of Native American tribes and social justice for the sovereign entities.  His missive of nearly 50 pages discussed Lincoln’s moral doubts about slavery, noting that “[h]istory graciously has vindicated Lincoln . . . 100 percent, 500 percent, 1,000 percent.  At the time [Lincoln] spoke, contemporary history was not so kind.”7

Another military clash also prompted a Minnesota jurist to refer to Lincoln’s legacy.  The case of ex parte Ortiz arose after the United States obtained Puerto Rico from Spain at the end of the Spanish-American War.8  The U.S. District Court in Minnesota encountered the issue of what to do with Puerto Ricans who were captured and sentenced to death for murder.

After his sentence was commuted by President McKinley and he was confined at the state prison in Stillwater, the convicted killer brought a habeas corpus proceeding in federal court here.  The judge denied the petition, reasoning that the Puerto Rican was properly tried and convicted by ancillary tribunal for crimes committed during wartime.  But, in so doing, the judge quoted from Lincoln’s Gettysburg Address “in language not yet forgotten” of the authority of the “government of the people, by the people, for the people.”9

Abe Adoration

There are a number of reasons why Lincoln is adored, including his eloquent and acute observations about the human condition.  One of his most well-known aphorisms was reflected in State v. Craig.10 Accused of terroristic threats and fifth degree domestic assault, the defendant sought to represent himself despite several warnings by the Stearns County District Court judge.  At a pre-trial hearing, after the defendant sought to represent himself, despite several warnings by the Stearns County District Court Judge.  At a pretrial hearing, after the judge asked him “You know what Lincoln said?”  The defendant answered affirmatively, “Yes.  I do,” although neither judge nor the defendant explicitly uttered the remark.

It could have been Lincoln’s saying, “Better to be silent and be thought a fool, than to speak and remove all doubt.”  More likely, the judge was discouraging pro se representation, based upon Lincoln’s recognition that if one is “resolutely determined to make a lawyer of [one]self, the thing is more than half done already.”  That remark has been reworked over time into a more familiar phrase:  “A person who represents himself has a fool for a client.”

Marshall H. Tanick is an attorney with the law firm of Hellmuth & Johnson in the Twin Cities. He is certified as a Senior Civil Trial Specialist by the Minnesota State Bar Association and has written, lectured, and taught extensively about legal history topics. 


1 Scott v. Sandford, 60 U.S. 393 (1857).

2 U.S. v. Crocker, 420 F. 2d 307, (8th Cir. 1970).

3  420 F.2d at 309.

4 McMaster v. State, 819 F. Supp. 1442, 1442 (D. Minn. 1993).

5 Henty, E. “Abraham Lincoln ? The jurist of the Civil War,” 14 N.Y. L.Q. Rev. 473 (1936-37).

6 Granite Valley Hotel Limited Partnership v. Jackpot Junction Bingo and Casino, 559 N.W.2d 135 (Minn. Ct. App. 1997).

7 Id. at 177.

8 ex parte Ortiz, 100 F. 955 (D. Minn. 1900).

9 Id. at 957.

10 State v. Craig, 2002 WL 1050344 (Minn. Ct. App. May 28, 2002) (unpublished).



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