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

ECW welcomes guest author Raúl C. Cancio Fernández

See Part One here.

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.

The Confederate Constitution.

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.

Virginia’s State Supreme Court Seal.

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.

Chief Justice Marshall (1755-1835) (oil on canvas) by Harding, Chester (1792-1866); Private Collection; (add. info.: regarded as the ‘principal founder of judicial review and of the American system of constitutional law’; Chief Justice of the United States); Photo © Boltin Picture Library; American, out of copyright.

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.

9 Responses to Supreme Confrontation: The Last Judicial Instances in the Spanish and American Civil Wars, Part II

  1. Good analysis of the judicial branch of the Confederacy, but – please! – do not refer to Confederates as “seditionists”. You are smarter than that. They did not ‘rebel’, or take any aggressive actions against the US Federal Government until subjected to the doctrine of “might makes right” by Lincoln et al and forced to resort to defense. They seceded peacefully, with no intention of dismantling the US Government or in any way interfering wtih its operations or those of member States. It’s so much more fun, and generates so many more words, and is so much more useful politically today, to villainize the Confederacy, but it is not based in truth.

    1. Ah yes, the same people who seized federal institutions in the South were subjected to might…. never forget how those poor innocent southern cannonballs were viciously assaulted by Fort Sumter picking itself up and flinging itself at them.

      I would dare hazard that an accomplished legal scholar such as the author may just happen to have put thought into his words and know what he is saying. You always have awfully aggressive comments for blogs here, but never seem to want to submit content of your own – only complain about authors who do.

      1. Come on now, let’s not be flippant. Clearly the presence of an enemy substantial fort in the middle of one’s shipping lanes (thus threatening one’s well-being) was a threat, and had to be dealt with. Imagine if some group today set up camp with weapons in the middle of the Potomac river just outside Washington DC and was therefore threatening passage into and out of the Federal capital… the military or other authorities would not hesitate to blow it out of the water. Could the camp simply say “hey we were just sitting here..”?

        As for submitting content, perhaps he’s produced all kinds of content over the course of his life? I don’t know him personally.

      2. “You always have awfully aggressive comments for blogs here, but never seem to want to submit content of your own – only complain about authors who do.” …. This is a remarkably unfriendly site to the Confederate point of view. I cannot imagine anyone seeking a fair shake for the Confederate point of view would find that here.

      3. Ummm, its not good planning to allow the military installations of a foreign power to remain in the midst of your brand, spanking new country. Even so, after the said military installations were turned over to the new C.S.A.,including Ft. Sumter, there was no reason to think military conflict would follow.

  2. As someone who grew up in Spain, but is also a Virginian, I found this post interesting. Never thought I’d see a comparison between the American and Spanish civil wars, particularly written by a Spaniard. I may pick up your book. And, I can’t help adding– ARRIBA ESPANA!

  3. Thanks so much for sharing such an international perspective on the US Civil War! It is most welcome!!!

  4. Very interesting article. I learned quite a bit. Thank you. You correctly point out the suspicion of the CSA states towards a potentially powerful Supreme Court. Indeed, when in March 1863 the CSA Senate voted to establish a five-person supreme court, it voted to repeal prior legislation that would have given the court appellate jurisdiction over the individual states. Even then, as you note, the Confederates failed ever to agree to establishment of a supreme court. One Confederate legislator expressed the fear that its existence “would be utterly subversive of States’ rights and state sovereignty.” See “The Confederate Constitution of 1861: An Inquiry Into American Constitutionalism,” pp. 104-108 (Marshall L. DeRosa, University of Missouri Press, MO, 1991). Interestingly, the absence of a CSA Supreme Court led to several CSA Attorneys General making tentative steps into the breach, effectively taking the view that they could conclusively opine on the constitutionality of legislation. For example, one AG declared a “nullity” a Virginia law that interfered with Confederate contracts to supply the Army with whiskey. In another opinion, the CSA AG announced that he served in the role of a judge in interpreting CSA Congressional legislation. Subsequent AGs backed down from such an assertion of power within the office of a mere cabinet member, but it is a fascinating aspect of Confederate constitutional development in the brief history of the CSA. For a more detailed discussion, see “From Walnuts to Appomattox: The Opinions of the Confederate States Attorneys General,” published in North & South, Series II, Vol. 2, No. 3 (July 2021).

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