ECW welcomes guest author Raúl C. Cancio Fernández
It must be kept in mind when addressing this question that the Confederate Constitution of March 11th, 1861 was drafted on the structure of the Federal Constitution and, in particular, the provisions dedicated to the Supreme Court are practically identical in both texts. Article III of Section I of the Charter of 1787 is, in fact, practically the same as the Southern provision, the only difference being the same article and section of the Confederate Constitution in the adjective “Confederate”, instead, of course, of “United”.
One of the most interesting aspects of the Confederate judicial system was the continuity of jurisdiction between the federal and rebel courts, not in vain and frequently, the district judge of the United States succeeded himself as a Confederate judge, respecting the convictions and indictments handed down in the federal courts; maintaining the same rules of procedure, as well as the principle of stare decisis, regardless of whether the decisions had been handed down by what were now “enemy” courts. This continuity of justice was symbolized by the fact that the Confederate court proceedings were recorded in the same books that had been used by the federal court: the clerk literally turned the page and started the Confederate court matters from scratch. Quite the opposite, therefore, of the blowing up of the ordinary judicial system that occurred in our war in Spain, and the subsequent surfacing of innumerable special jurisdictions that in no way represented a continuum of the pre-existing judicial regime.
Within the First Provisional Confederate Congress based in Montgomery and in compliance with constitutional provisions, a judicial committee was formed on February 12th, 1861, composed of Congressmen Clayton, Withers, Hole, Cobb and Harris, who submitted to Congress on February 22nd, 1861 a judicial organization bill. Three days later, the legislative text was discussed, being subject to minor amendments in its content, and was debated again on March 12th in sections and in a non-public session. The following day, the parliamentary debate focused precisely on the competencies of the Confederate Supreme Court, recognizing its power of review over the decisions of the state judicial bodies and establishing in Section 14 a broad delegation of competencies. Section 2 contemplated that the Supreme Court would be composed of all the district judges assembled in the capital (Richmond) and a series of judges of first instance, combining the jurisdiction of the former federal district and that of the circuit courts. In addition, the need for a department of justice was also established, thus anticipating the Federal Department of Justice, which would not be constituted until 1870 under President Grant.
The bill passed the Confederate Senate on March 13th, 1861, but failed to get the votes needed for passage in the House of Representatives. In addition, on the following July 29th, Texas Congressman Thomas N. Waul introduced an amendment suspending the provision for holding a plenary session of the new court the following year as long as the body was not organized in accordance with the provisions of the Confederate Constitution.
On April 10th, 1862, another legislative proposal was introduced in the House of Representatives in the interest of articulating the Confederate Supreme Court in accordance with the constitutional spirit, being again rejected by the Judiciary Committee. In January 1863 a new Committee composed of Senators Hill, Haynes, Phelan, Semmes and Caperton managed to reach consensus on an organizational text for the Court, structured in five sections, in which the composition of the court was set at four members, with a Chief Justice who would preside and three Associate Justices who would meet in two annual sessions, on the first Monday of January and the first Monday of August, contemplating an annual stipend of seven thousand dollars for the president and six thousand for the rest of the judges, charged to the Treasury. However, the legislative process, which lasted until March 1865, was also unsuccessful, as the necessary majorities for its approval were not reached. In fact, one of the last attempts made to establish such a court was to convert it into an appellate court for the lower courts and not to confer any other unifying powers.
As can be seen, although the district courts in the Confederate territory were very active until practically the end of the war, the fact is that the Dixie Supreme Court, unlike the Francoist Supreme Court, was never constituted. And this was for different reasons, some substantive or ideological and others of a logistical or material nature. Beginning with the latter, the original legal provision that its composition would be made up of district judges gathered in the capital, considerably hindered the Court’s operation as soon as it was moved from Montgomery to Richmond, given the severe difficulties of mobility through the Southern territory. On the other hand, the precarious and unstable living conditions of the rebel society during the war did not favor the economic, political and legislative efforts to be poured into the implementation of the Court. And even more so when the pre-existing judicial system of district courts, together with the functioning of the courts martial, provided an adequate response to the judicial needs of the citizens in the secessionist states.
However, the main drawback for the effective configuration of the Court was the rigorous constitutional exegesis defended by the rebels. Starting from the definition of confederation, we see that this is more of an alliance, a convergence of sovereign interests. The states south of the Mason-Dixon Line joined together more for the purpose of facilitating and simplifying trade relations between them than to centralize government action. In this regard, and over the years, the citizens of the South had witnessed how the Supreme Court of the United States tended to form a doctrine that strengthened and expanded the power of the Federal Government to the detriment of the states, with a consequent and perceptible increase in the political influence of the Supreme Court. The misgivings of the secessionist leaders with respect to recognizing a centralizing power of the Supreme Court for judicial review of the decisions of the state courts became, therefore, the central factor that hindered the functioning of the rebel Supreme Court.
Recall, in this regard, how in 1819, at the head of the Supreme Court was John Marshall, appointed to the post by President Adams in 1801, a recalcitrant Federalist vestige and archenemy of the above-mentioned president, as he had been before Jefferson. Marshall was the driving force behind one of the most transcendental decisions (McCulloch v. Maryland) adopted by the court in its history for the political configuration of the country, when he held that the federal government had the power to create a Federal Bank, because although the Constitution did not contemplate it specifically, it was inferred from it – in an exegesis far removed from the originalism so current today in the justices of the current Federal Court – that an effective government required adopting decisions not literally contained in the constitutional text, since the federal government was answerable to the people, not to the States. Therefore, the states could not interfere with that power by imposing taxes.
One may or may not agree with the doctrine expressed in this jurisprudential background, but what is indisputable is that the seditionists were more than justified in opposing the deployment in their confederacy of an institution that could interpret the Confederate constitution with the same centralizing bias as the Washington court. Consequently, the various Southern state judicial systems operated quite normally while the idea of configuring a supreme body with jurisdiction over the entire Confederacy, above the courts of Georgia, Alabama, or Virginia, for example, never saw the light of day because the real Supreme Court of the Confederate States of America during the period from 1861 to 1865 were the various state supreme courts, much better attuned to the deep-rooted sovereigntist zeal of each of the States, which delegated powers to the Richmond government, which administered them in a limited manner.
It was George Orwell who, in one of his columns for the British magazine Tribune, wrote in 1944 that well-known phrase that history is written by the victors. And the British writer was not wrong, not in vain, the seditious Supreme Court of the New Francoist State is the one that has finally reached our eyes -conveniently constitutionalized since 1978- after its stay in Vitoria and Valladolid, while, on the contrary, the unborn Confederal Supreme Court of the side surrendered at Appomattox Court House was left in the melancholic magma that was The Lost Cause of the Confederacy, the seditious States submitting to the jurisdiction of the Supreme Court of the victors in Washington.
In short, the Supreme Courts as an adjusted reflection of the civil confrontation and as the final product of the winning faction.
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.