Confederate Justice

Let no one seeking an evening’s relaxation or a course in legal history in six easy lessons be deceived by the title of Colonel William M. Robinson’s book. “Justice in Grey” is the outcome of years of intelligent, meticulous research, and it is a monumental production. It is primarily an analysis of the structure and functions of the judicial system of the Confederacy from state circuit courts to the Supreme Court of the Confederacy, for which provision was made but which was never organized. So far as I know, there has been little or no interest in the Confederate judicial system; indeed, there has been an almost complete ignorance of the subject. Since scholarly ex-Confederates like Jefferson Davis, Alexander Stephens, and J. L. M. Currey fail to mention the Confederate judicial system in their books dealing with the Civil War, such a state of ignorance is partly explicable. Furthermore, the existence of Confederate courts was studiously ignored by the Federal judiciary during and after the Civil War. “Justice in Grey” lifts the curtain of ignorance which darkened this significant chapter in Southern and American history.

The Confederate Constitution was basically the old Federal Constitution with controversial points cleared up, and with those features which had given rise to much abuse eliminated. The Confederate judiciary was provided for in much the same language as that of the Federal Constitution dealing with the judiciary. The establishment of the Supreme Court was made mandatory while that of the inferior courts was left to the discretion of Congress. In the Acts providing for the establishment of the Confederate court system, one is amazed to discover that the right of judicial review is granted the Supreme Court in a far more sweeping manner than had ever been granted the United States Supreme Court by the Act of 1789 and subsequent legislation. In the first flush of secession, it appears that the theory of state sovereignty was being ignored, and that the central government was being made judge of its own powers. Perhaps the Southerners were not so much afraid of strong central government per se as they were of such a government controlled by a section hostile to the South. The Confederate Congress passed legislation providing for a Supreme Court to be composed of all the district judges assembled at the capital, and for a series of district courts of first instance, which combined the jurisdiction of the old Federal district and circuit courts. Furthermore, a department of justice, with most of its modern functions, was established, thus anticipating the Federal Department of Justice.

While the district courts were organized and showed great vitality in all unoccupied territory until the end of the Civil War, the Supreme Court was never organized. The provision that its personnel should consist of all the district judges assembled at the capital rendered the functioning of the Court impossible as soon as the capital was moved to Richmond. Congress suspended the operation of the law, but was never able to agree on another. The chief difficulty was not that there was much opposition to a Supreme Court, but that the old antagonism against judicial review of state court decisions arose again to block the organization of the court under the Confederate Judiciary Act that granted the right of judicial review. The distractions of war and personal feuds in Congress were also factors in the failure to organize the Supreme Court. Finally, the state supreme courts with great unanimity upheld the vital war legislation of the Confederate government and made a national Supreme Court seem less necessary for the time being.

One of the most interesting aspects of Confederate courts and law was the continuity of justice between the Federal and Confederate courts. Not infrequently the United States district judge succeeded himself as Confederate judge, and other members of the Federal court staff succeeded themselves as similar functionaries in the Confederate courts. Convictions and indictments made in Federal courts were respected by the Confederate courts; the same rules of procedure were carried over, and the principle of stare decisis was powerfully influential, even though the decisions had been rendered by what were now enemy courts. This continuity of justice is symbolized by the fact that the Confederate court proceedings were recorded in the same books which the Federal court had used: the clerk literally turned a new leaf and began the business of the Confederate court on a clean sheet.

In addition to the district courts there were, of course, courts-martial and, finally, permanent military courts which operated with each army corps and in certain specified geographical areas.

One cannot read “Justice in Grey” without being deeply impressed by the great respect in which Southerners of the old regime held constitutional government, the courts, and the law. Perhaps in these days of totalitarian despotism it may be finally comprehended that Southerners went to war not for the destruction of free government and human liberty but to preserve their own against a fanatical sectional party, which for years past and for years to come had proclaimed and were to proclaim a higher law doctrine—a law which theoretically made every man’s conscience his own law and in doing so repudiated the Constitution, the laws under it, and the courts that interpreted it, wherever they conflicted with conscience.