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2012 Legal Heritage of the Civil War Issue

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2012 Legal Heritage of the Civil War Issue NORTHERN KENTUCKY LAW REVIEW NORTHERN KENTUCKY LAW REVIEW Legal Heritage of the Volume 39 Number 4 Civil War Issue COPYRIGHT © NORTHERN KENTUCKY UNIVERSITY Cite as 39 N. KY. L. REV. (2012) Northern Kentucky Law Review is published four times during the academic year by students of Salmon P. Chase College of Law, Northern Kentucky University, Highland Heights, Kentucky 41099. Telephone: 859/572-5444. Facsimile: 859/572-6159. Member, National Conference of Law Reviews. All sections which appear in this issue are indexed by the H.W. Wilson Company in its Index to Legal Periodicals. Northern Kentucky Law Review articles are also available on microfilm and microfiche through University Microfilms International, Ann Arbor, Michigan. Subscription rates are $35.00 per volume, $10.00 per individual issue. If a subscriber wishes to discontinue a subscription at its expiration, notice to that effect should be sent to the Northern Kentucky Law Review office. Otherwise, it will be assumed that renewal of the subscription is desired. Please send all manuscripts to the address given above. No manuscript will be returned unless return is specifically requested by the author. NORTHERN KENTUCKY LAW REVIEW Legal Heritage of the Volume 39 Number 4 Civil War Issue Editor-in-Chief NICHOLAS DIETSCH Executive Editor SEAN PHARR Managing Editors JESSICA KLINGENBERG HEATHER TACKETT PAUL WISCHER Student Articles Editors Lead Articles Editor COLBY COWHERD MARK MUSEKAMP JASON KINSELLA Symposium Editor Kentucky Survey Issue Editor JESSE SHORE JOSH MCINTOSH Administrative Editor MORGAN SALISBURY Associate Editors BRAD ANDRESS THOMAS EDGE ZACH PETERSON NATHAN BECHT MICHAEL FRIEDMANN DANIELLE REESOR LAUREN BOOTH BRITTANY GUNTHER JEREMIAH SCHLOTMAN ASHLEY BRUCATO ALEX HAVLIN BIJAYA SHRESTHA OLESJA CORMNEY MARK HERVEY ANDREW SMITH ROBERT CUMMINGS COLEMAN HURT RYAN SMITHER COREY DRUSHAL ANDREA LADEN ZACH SOUTHWOOD IAN MITCHELL Faculty Advisor Technical Advisor PROFESSOR JENNIFER ANGLIM PROFESSOR RICHARD BALES KREDER NORTHERN KENTUCKY LAW REVIEW Legal Heritage of the Volume 39 Number 4 Civil War Issue Editor-in-Chief NICHOLAS DIETSCH Executive Editor SEAN PHARR Managing Editors JESSICA KLINGENBERG HEATHER TACKETT PAUL WISCHER Student Articles Editors Lead Articles Editor COLBY COWHERD MARK MUSEKAMP JASON KINSELLA Symposium Editor Kentucky Survey Issue Editor JESSE SHORE JOSH MCINTOSH Administrative Editor MORGAN SALISBURY Associate Editors BRAD ANDRESS THOMAS EDGE ZACH PETERSON NATHAN BECHT MICHAEL FRIEDMANN DANIELLE REESOR LAUREN BOOTH BRITTANY GUNTHER JEREMIAH SCHLOTMAN ASHLEY BRUCATO ALEX HAVLIN BIJAYA SHRESTHA OLESJA CORMNEY MARK HERVEY ANDREW SMITH ROBERT CUMMINGS COLEMAN HURT RYAN SMITHER COREY DRUSHAL ANDREA LADEN ZACH SOUTHWOOD IAN MITCHELL Faculty Advisor Technical Advisor PROFESSOR JENNIFER ANGLIM PROFESSOR RICHARD BALES KREDER SALMON P. CHASE COLLEGE OF LAW DENNIS HONABACH, A.B., J.D. ASHLEY GRAY, B.A., J.D. Dean & Professor of Law Director of Admissions LAWRENCE ROSENTHAL, B.A., J.D., LL.M. KAREN OGBURN, B.A., M.P.A. Associate Dean for Academics Associate Dean for Administration JENNY YOUNG SHERRIE TURNER, B.S., M.P.A. Registrar of the College of Law Budget Analyst LISA MOORE, B.A., J.D. DAVID H. MACKNIGHT, B.S., J.D. Director of Career Services Associate Dean for Law School Advancement MOLLY TAMI, B.A., J.D. MICHAEL WHITEMAN, B.A., M.S.L.S., J.D. Associate Dean for Student Affairs and Associate Dean for Library Services and Admissions & Director of Pro Bono Services Information Technology & Professor of Law FACULTY ERIC ALDEN, B.A., M.A., J.D. THOMAS E. HEARD, B.A., M.L.S., J.D. Assistant Professor of Law Associate Professor of Library Services & RICHARD A. BALES, B.A., J.D. Associate Director for Library Services Professor of Law & Associate Dean of Faculty EMILY JANOSKI-HAEHLIN, B.S., J.D., M.L.S. Development Assistant Professor of Library Services & DONNA S. BENNETT, A.B., M.A., M.S.L.S. Assistant Director for Research and Online Professor of Library Services & Services Assistant Director for User Services JENNIFER JOLLY-RYAN, B.A., J.D. JOHN M. BICKERS, A.B., J.D., LL.M. Professor of Legal Writing Assistant Professor of Law KENNETH D. KATKIN, A.B., J.D. ROGER D. BILLINGS, JR., A.B., J.D. Professor of Law Professor of Law DONALD K. KAZEE, B.A., M.A., J.D. SHARLENE BOLTZ, B.A., J.D. Associate Professor of Legal Writing Professor of Law JENNIFER KREDER, B.A., J.D. CAROL BREDEMEYER, A.B., M.S.L.S. Professor of Law Professor of Law Library Services & MICHAEL J.Z. MANNHEIMER, B.A., J.D. Assistant Director of Faculty Services Associate Professor of Law ANTHONY E. CHAVEZ, B.S., J.D. BARBARA MCFARLAND Assistant Professor of Law Director of Student Success Initiatives & URSULA DOYLE, B.A., M.A., J.D. Assistant Professor Assistant Professor of Law LJUBOMIR NACEV, B.A., J.D., LL.M. NANCY L. FIRAK B.S., J.D., LL.M. Professor of Law Professor of Law ADRIENNE NOBLE NACEV, B.A., J.D. CAROL FURNISH, B.A., M.L.S. Visiting Assistant Professor of Legal Professor of Library Services & Writing Assistant Director for Instruction & Outreach SHERRY PORTER, JON M. GARON, B.A., J.D. Director for the Center for Excellence in Director of Law and Informatics Institute & Transactional Law Professor of Law LARRY O. PUTT, B.A., J.D., LL.M. RICHARD GRAVES, B.A., J.D., LL.M., LL.M. Visiting Professor Assistant Professor of Legal Writing DAVID SINGLETON, B.A., J.D. CHRISTOPHER GULINELLO, B.A., J.D., LL.M. Assistant Professor of Law Professor of Law PHILLIP SPARKES, B.S., J.D., LL.M. JACK HARRISON, B.A., J.D. Assistant Professor of Law & Assistant Professor of Law Director of Chase Local Government Law AMY HALBROOK, B.A., J.D. Center Director of Children’s Law Center Clinic & DONNA M. SPEARS, B.A., M.L.I.S., J.D. Assistant Professor of Law Assistant Professor of Law Library Services & KIMBERLY HAUSBECK, B.A., J.D., LL.M. Assistant Director for Research and Assistant Professor of Legal Writing Instructional Technology MARK M. STAVSKY, B.A., J.D., LL.M. Professor of Law HENRY L. STEPHENS, JR., B.A., J.D. CLAUDIA ZAHER, B.A., M.S.L.S. Professor of Law Associate Professor of Library Services JOHN T. VALAURI, B.A., J.D. Assistant Director for Collection Development Professor of Law CARYL A. YZENBAARD, A.B., J.D. Professor of Law EMERITI FACULTY CAROL B. ALLRED, B.A., M.S.L.S., J.D. ROBERT M. BRATTON, A.B., M.A., J.D. EDWARD P. GOGGIN, J.D., LL.M. W. JACK GROSSE, B.S.C., M.B.A., J.D. MARTIN J. HUELSMAN, B.B.A., J.D. WILLIAM R. JONES, B.S., M.A., J.D. KAMILLA M. MAZENAC, A.B., J.D., LL.M. FREDERICK SCHNEIDER, B.A., J.D. ROBERT L. SEAVER, A.B., J.D. DAVID C. SHORT, B.A., J.D., LL.M. ADJUNCT FACULTY SHARIF ABDRABBO, B.S., J.D. RICHARD KATZ, B.A., J.D. RAY ATKINSON, B.A., J.D. SHANNON KEMEN DANIELLE ANDERSON, B.A., J.D. JENNIFER LAWRENCE, B.S., J.D. HON. GREGORY M. BARTLETT, A.B., M.A., J.D. JENNIFER LEWIS HON. WILLIAM O. BERTELSMAN, B.S., J.D. HENRY E. MENNINGER, B.A., J.D. VICTORIA BOGGS, B.A., J.D. LAURIE MCCLUSKEY, B.S.N., J.D. BRYANT BREWER, B.A., J.D. TIFIANIE MCMILLAN, B.A., J.D. LOUISE BROCK, B.A., J.D. JANET MOORE, B.A., M.A., M.A., J.D. SHAWN P. BURTON FRANK MUNGO, B.S., J.D. KELLY CANTRALL, B.A., J.D. DANIEL MURNER, B.A., J.D. LISA DAVIDSON, B.A., J.D. ELIZABETH PEARSON, B.A., J.D. KRISTI DAVIDSON, B.A., J.D. BRIAN POWELL REBECCA DILORETO, B.A., J.D. FINIS PRICE, B.A., J.D. JOHN DUNN STEVEN RAY, B.A., J.D. SUSAN DUNN, B.S., J.D. KEVIN ROONEY, B.A., J.D. DOREENA FOX, B.S., J.D. E. ROBERT SANDERS, B.A., B.S., J.D. ROBERT A. GOERING, B.A., J.D. HON. AMUL THAPAR, B.S., J.D. HON. DANIEL T. GUIDUGLI, B.A., J.D. HON. KAREN A. THOMAS, B.A., J.D. WILLIAM GUSTAVSON, B.A., J.D. BERNADINE C. TOPAZIO, B.A., M.B.A., J.D. MICHAEL HAWKINS, B.A., J.D. MARY WAGNER, B.S./B.A., M.B.A., J.D. PENNY HENDY HON. WILLIAM J. WEHR, B.A., J.D. BILL HESCH, B.S., J.D. HON. J. GREGORY WEHRMAN, B.A., J.D. M. GRETA HOFFMAN, B.S., J.D. DAVID WHELAN, B.A., J.D. HON STEVEN R. JAEGER, B.A., J.D. JUSTICE DONALD C. WINTERSHEIMER, A.B., M.A., J.D. J. STEPHEN WIRTHLIN, JR., B.A., J.D. NORTHERN KENTUCKY LAW REVIEW Legal Heritage of the Volume 39 Number 4 Civil War Issue 2012 Legal Heritage of the Civil War Issue ARTICLES Military Trials of Terrorists: From the Lincoln Conspirators to the Guantanamo Inmates Chief Justice Frank J. Williams & Nicole J. Benjamin.............................................................. 609 The Civil War Origins of the Modern Rules of War: Francis Lieber and Lincoln’s General Order No. 100 Burrus M. Carnahan ................................................................................................................. 661 The Homestead Act, Pacific Railroad Act and Morrill Act Professor Roger D. Billings....................................................................................................... 699 Salmon P. Chase and the Legal Basis for the U.S. Monetary System Dr. Roger D. Bridges................................................................................................................. 737 The Trial of Jefferson Davis and the Treason Controversy Ian Mitchell ............................................................................................................................... 757 General Orders No. 100: Why the Lieber Code’s Requirement for Combatants to Wear Uniforms is Still Applicable for the Protection of Civilian Populations in Modern Warfare Robert Cummings ...................................................................................................................... 785 MILITARY TRIALS OF TERRORISTS: FROM THE LINCOLN CONSPIRATORS TO THE GUANTANAMO INMATES1 Chief Justice Frank J.
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