Supreme Confrontation: The Last Judicial Instances in the Spanish and American Civil Wars, Part I

ECW welcomes guest author Raúl C. Cancio Fernández

There is no greater tearing, no similar manifestation of physical, social and moral amputation as that generated by a civil war. At all levels: politics -or its absence-, culture, work, production, institutions… the entire institutional architecture is convulsed after the outbreak of fratricidal violence.

And, of course, the administration of justice is not exempt from this spiral of chaos. A conflict of this nature often leads to the emptying of the ordinary structure of the pre-existing judicial system with the creation of innumerable special jurisdictions, mere judicial terminals of the ideological tendencies of each side, whose leaders are aware of the difficulties posed by the manipulation of the ordinary jurisdiction. And all this by abusing the malleability offered by the jurisdictional bodies created ad hoc for the fulfillment of their ideological aims.

But although all this is of severe gravity, what most graphically illustrates the dissection of the confronted state at the judicial level is the vicissitudes of the Supreme Court or Tribunal existing at the moment when hostilities are unleashed. And in this sense, the example of the High Courts of Spain and the United States in their respective civil wars is paradigmatic, taking into account the unifying role of this type of institution in the national order.

On November 1st, 1936, an army of 25,000 men under the command of General Varela arrived in the suburbs of Madrid, while Italian airplanes dropped leaflets demanding citizens to help take the city “or else, the National air force will wipe Madrid off the map.” In the wake of the fall of Madrid, the socialist government of Largo Caballero moved to Valencia, which led, consequently, to the removal also of the Supreme Court which, together with the Department of Justice, was provisionally installed in the building of the territorial audience of the Levantine capital.

In contrast, the change of the Confederate capital from Montgomery to Richmond was not because of military pressure on Alabama, but because the rebel authorities were closer to the theater of operations. In addition, General Lee’s abandonment of Richmond did not occur until April 1st, and only when Sheridan’s cavalry dealt a final blow to Lee’s Army at the Battle of Five Forks; Petersburg fell the next day, ending the encirclement begun in June of the previous year by General Butler. The situation for Lee was critical and so he left Richmond for Appomattox Station, where a train awaited him to make contact further south with Joseph E. Johnston’s Army of North Carolina.

The Justice De Buen Lozano played a qualified role in that move, who, on December 11th, removed from the archives of the Palace of Justice of Madrid the most sensitive documentation, which to this day remains unaccounted for: the Book of Minutes of the Government Chamber opened in 1935; the Book of Minutes of the Plenary and the Book of Votes. Likewise, in March 1937, due to its symbolic value, the aforementioned judge transferred to Valencia the daily necklace for presidential use, a symbol of ritual dignity in the Spanish judicial field; the Supreme Court magistrate’s badge for presidential use and the Great Necklace of Justice. This last jewel was at all times guarded in a safety deposit box in the branch of the Bank of Spain in Valencia.

On October 28th, 1937, the President of the Council, Juan Negrin, announced once again the transfer of the government to Barcelona, 220 miles to the north, and with it, the transfer of the bulk of the administration.  At ten o’clock at night on January 22nd, Negrin presided over the last council in Barcelona, in which a state of war was declared throughout the Republican territory. The following morning, with the italian Corpo Truppe Volontarie occupying Igualada and the Moroccan Army Corps penetrating Sitges, and in the face of the defection of the 196th brigade and the desperate blowing up of the bridges over the river Llobregat, what was left of the Republican administration moved to Gerona, 55 miles to the north, in a mad pandemonium of vehicles and trucks full of civil servants and files that collapsed the roads heading north. December 28th, 1938, was the date of the last sentence pronounced by the Republican Supreme Court.

The unstoppable pressure of the IV Navarre Division of Alonso Vega forced the Republican authorities to make a last move to Figueras, almost at the border with France, in whose castle the last session of the Republican Courts was held on February 1st, presided over by Martínez Barrio and sixty-two deputies. Two days later, the remains of the 11th Division of Líster’s V Corps also left the line of the river Ter, but not before ransacking many buildings in Gerona, among them, the bank where the ritual medal was deposited, which was pledged in a pawnshop in Banyuls-sur-Mer, a small French village, and years later, recovered by the Francoist authorities.

As can be seen, the end of one war and the other was very different. While in the Spanish war the defeated faction had to escape into exile ignominiously, the last acts of the American war were presided over with a certain dignity.  Not in vain, the solemn act of surrender was presided over by the cultivated hero of Little Round Top, the federal general Joshua L. Chamberlain, who, on his own initiative, while the Confederate columns commanded by General John B. Gordon paraded before him to surrender their arms, ordered his men to salute militarily the passage of the vanquished (carry arms) as a sign of respect, which was reciprocated by the rebel general, in what was yet another example of how civil confrontations should be closed.

As General Porter Alexander anticipated, Lee’s surrender brought with it the successive surrender of arms by the remaining Confederate units: Joseph E. Johnston and his Army of North Carolina surrendered to General William T. Sherman on April 26th; General Edmund Kirby Smith did the same with the Trans-Mississippi Military Department in May; and finally, General Stand Watie – one of the only American Indians to achieve the rank of brigadier general in the entire war – was the last Confederate commander to surrender the arms of his Cherokee Mounted Rifles on June 23rd at Fort Towson, Oklahoma.

As far as the state of affairs in the pro-subversive zone was concerned, it was not until the summer of 1938 that the seditious legislature systematically tackled the organization and functions of its own Supreme Court.

As was the case with the move of the Confederate administration, Franco’s Supreme Court was not unaffected by the vicissitudes of the war, and although the change of seat in this case was not due to enemy pressure, as was the case with the legitimate Court, the provisional nature of the regime, on the one hand, and the imminent end of the war, were factors that influenced the mobility of the judicial seat. The Full Court was constituted in Vitoria, in the basque country, on November 26th, 1938. On December 5th, 1938, Minister Domínguez Arévalo requested that the residence of the Court be established in Valladolid, 146 miles to the south, in the building of the old Royal Chancery.

On January 27th, 1939, the Tribunal was already installed in the Castilian city, although it would not be there for long.  The following day a Commission was named to move to Madrid and to take charge of the documents, furniture and belongings that were in the Palace of Justice of the capital. Although some Justices who were there and are now deceased, assured that appeals were resolved by the Court in Valladolid, the truth is that there is no record of any resolution or sentence dated in the Castilian city, the first resolutions issued by the Francoist Supreme Court being dated after April 1st, 1939, the official date of the end of the war.

In the second part of this article, we will deal with the vicissitude of the Confederate Supreme Court, which, in spite of concurring notable parallels with the Spanish episode, its vicissitude, especially from the legal point of view, harbors notable singularities. It should be advanced, as an initial premise, that the study of the Confederate justice (Grey Justice) has aroused a meager and superficial interest in the researchers of the bloody and devastating Civil War that developed from 1861 to 1865 in that nation, being significant that subversive scholars as significant as Jefferson Davis (first and only Confederate president), Alexander Stephens (vice president) or J.L.M. Currey have not made reference to the Confederate judicial system in the studies they devoted to the American Civil War.

Raúl C. Cancio Fernández holds a Degree in Law from the UAM and a PhD from the URJC. He is a Law Clerk of the Technical Cabinet of the Spanish Supreme Court, as well as Corresponding Academician of the Royal Academy of Jurisprudence and Legislation and since 2019, Trustee of the Pro Royal Academy Foundation.  He is the author of the book Spain and the American Civil War or the globalization of counterrevolutionism.