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University of Nevada, Reno A New Birth of Freedom: The Effect of the Civil War and Reconstruction on Ohio Law A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Judicial Studies by Wade Thomas Minahan Dr. James T. Richardson/Dissertation Advisor August, 2015 August, 2015 Copyright by Wade Thomas Minahan 2015 All Rights Reserved i ABSTRACT In the seventy years from its first settlement to the start of the Civil War, Ohio developed from a trackless wilderness populated only by a few Native Americans into an agricultural garden and home to over two million residents. By this time Ohio had become the third most populous and the fourth most industrialized state in the nation. Ohio had a leading role in the American Civil War (1861-1865). Over 300,000 Ohioans served in the War and about one in ten died. Several of the Union’s leading Generals, including Ulysses S. Grant, William Tecumseh Sherman and Phillip Sheridan hailed from Ohio. Future Presidents Grant, Rutherford B. Hayes, James A. Garfield, Benjamin Harrison and William McKinley served in the Union Army and hailed from the Buckeye State. Political leaders such as Secretary of War Edwin Stanton, Treasury Secretary, and later Chief Justice Salmon P. Chase, Senators Benjamin Wade and John Sherman, Congressmen Clement Vallandingham, George Pendleton, and John Bingham called Ohio home. In addition, Ohio’s farms fed the Union war machine and its transportation infrastructure transported these commodities to the Armies in the field. Ohioans made many sacrifices during the War. Although only one military campaign touched Ohio’s borders during the conflict, that being Morgan’s raid in July, 1863, this was a small affair. However, over 35,000 Ohioans lost their lives and a similar number deserted. Ohio was required to cede an enormous amount ii of power to the federal government in order to win the War. Ohioans were also forced to endure the curtailment of many of their political and civil rights, as guaranteed by the United States and the Ohio Constitutions. These infringements included the suspension of habeas corpus, arrests without trials, trials of civilians by military commissions, and infringements on free speech and freedom of the press. At the war’s conclusion, Congress had three major challenges: 1) dealing with the loss of life and property during the war; 2) the uncertainty about whether the war was really over; and 3) the enormity of the task of economic and political reconstruction. By denying seats to the Congressman and Senators elected to represent the former Confederate states at the end of the war, the 39th Congress, which held session from March 4, 1865 to March 3, 1867, held a Republican super majority that allowed them to propose constitutional amendments as well as override presidential vetoes. The 39th Congress passed 714 pieces of legislation during its term, including: 1) the Civil Rights Act of 1866; 2) the extension of the Freedman’s Bureau for another two years; and 3) the 14th Amendment. Ohio Congressman John Bingham was the principal author of Section 1 of the 14th Amendment, and he and his colleagues crafted this amendment with moderate verbiage. When the Southern states rejected the 14th Amendment, the country entered into the period of Congressional (Radical) Reconstruction and Southern States were forced to ratify both the Fourteenth and Fifteenth Amendments in order to regain full voting status in Congress. iii It is quite clear that the Civil War and Reconstruction era had a profound effect upon Ohio and its laws. In addition to the great loss of life and property, Ohioans only reluctantly accepted the Fourteenth and the Fifteenth Amendments after denying full civil and political rights to African-American several times in the past. The enabling legislation that was included as part of these amendments allowed Congress to expand the jurisdiction of the federal courts and remove some cases from local juries and transfer them to the federal court system. However, it is equally evident that Ohio had a more profound effect on Reconstruction than Reconstruction had on Ohio. Ohio’s military leaders won the war and administered Congressional Reconstruction of the Southern States. Its political leaders took advantage of a temporary Republican super majority to enact two Amendments whose effect was small at the time, but became much more profound in the next century. Finally, Ohio’s Presidents and future Presidents helped lead the Nation from a time of schism and War into the 20th Century. iv ACKNOWLEDGMENTS I took my first course at the National Judicial College in the summer of 2003, and, like the song, “what a long strange trip it’s been.” The next summer, much to my surprise, I was accepted as a student in the Judicial Studies Program. I graduated with a Master of Judicial Studies Degree in 2007, and my thesis was later published as a law review article. Once again, to my further surprise, I was accepted as a student in the Judicial Studies doctoral program. This dissertation is the final obstacle in that program. I would first like to thank all of the friends and colleagues I have met in the program. To Tim, Greg, Phil, Matt, Rusty, Bill, Chuck, Walt, Brendan, Kris, and everyone else, I give my thanks for your encouragement and friendship throughout the last 12 years. Also my thanks to the faculty and staff of the National Judicial College and the Judicial Studies Program, with a special thanks to Professor James Richardson for mentoring me throughout this project, and Denise Schaar-Buis, who kept track of my grades and progress and answered all of my silly questions. UNR faculty members Dick Bjur, Matt Leone, Elizabeth Francis and especially the late Robert Harvey made learning an enjoyable experience. Special thanks goes to my committee, Mr. Milt Nuzum, Professor David Tanenhaus, Magistrate Bill Rickrich, Veronica Dahir and especially my committee chair, Professor James Richardson. Their assistance made this a better product, not perfect but better. Another thanks goes to that unknown person who v developed the Undo command for Microsoft Word, who saved me countless hours correcting my mistakes. Finally, to my late parents, William and Phyllis Minahan, who instilled a lifelong love of reading and learning in all of their children. vi TABLE OF CONTENTS ABSTRACT ........................................................................................................... i ACKNOWLEDGMENTS .......................................................................................iv CHAPTER 1 ......................................................................................................... 1 WHY STUDY OHIO? ............................................................................................ 1 I. Introduction .................................................................................................... 1 II. The 39th Congress ................................................................................... 4 III. Historical Theories of Reconstruction ...................................................... 5 IV. Amar ........................................................................................................ 9 V. Goals. .................................................................................................... 12 Summary......................................................................................................... 13 CHAPTER 2: ...................................................................................................... 15 ANTECEDENTS: OHIO LAW IN THE PRESTATEHOOD ERA ......................... 15 I. Introduction ............................................................................................... 15 A. Early Ohio .......................................................................................... 16 B. Ordinances of 1784, 1785 and 1787 .................................................. 19 C. Establishing a Government ................................................................ 20 D. Ohio’s Early Leaders .......................................................................... 23 II. Trouble with the Tribes (1775-1795) ..................................................... 31 A. The Militia ........................................................................................... 31 B. The U.S. Army Takes Charge ............................................................ 32 C. Harmar’s Defeat ................................................................................. 33 D. Massacre Along the Wabash ............................................................. 33 E. Anthony Wayne and Victory ............................................................... 35 III. The Jay Treaty ...................................................................................... 36 IV. Squatters ............................................................................................... 37 V. Turf Wars ............................................................................................... 38 A. Creating Laws .................................................................................... 39 B. Slavery ............................................................................................... 41 C. Maxwell’s Code .................................................................................. 42 VI. Stage 2 .................................................................................................. 43