When I research on a given rule, I try to look for a chain of decisions as far as it may go. Getting with a well-settled rule past the 20th century and into 18xx-ies' decisions is something happening often and without much of an effort.
Since I practice in California, rule's ancestry beyond 1860s quickly becomes unpredictable: we may have a US Supreme Court's case (lucky!), or it be referred to another state's earlier decision (easy), or to jump a hundred years and quote an earlier UK case (not so easy), or even rely on a Spanish/Mexican rule or tradition (the research stops there for me, almost always). This unpredictable change in time or space makes the search exciting, yet it also made me think, what if the chain gets into a decision held by a Confederate court? Are those decisions "bad law"?
The first results were telling, yes, it is bad law, irrespectively of the case's substance. For instance, the most respected book on Confederate law says so. Also, the Supreme Court of Arkansas, in its 1871 decision, held for a complete bar of anything decreed by a Confederate court, based on theses reasoning:
"We are now asked whether this court will regard the service made in 1861, by a Confederate court, as good? If this court was the legal successor of the courts organized under the Constitution of 1861, we would feel inclined to uphold the action of the inferior court, if its action was regular in other respects, but it is not. This court is a lineal descendant of the legal and lawful State government that was in existence under the provisions of the Constitution of 1836. The Constitution of 1868, and that of 1836, sprang from the same sovereignty, while the Constitution of 1861 simply sprang into being through usurpation and treachery of men who betrayed the trust reposed in them by their constituents. The courts, that existed under the Constitutions of 1836 and 1868, were created by the people; the courts, existing under the Constitution of 1861, were the creatures of the individuals who composed the Convention; the former from the sovereignty, and the latter from usurpation and violence."
Penn v. Tollison, 26 Ark. 545, 585 (Ark. 1871).
Yet I remembered that at least in one aspect―contracts made in Confederate currency―the courts were upholding the contracts as valid, so long as"their purposes not having in any way been to promote the rebellion." Gavinzel v. Crump, 89 U.S. 308 (U.S. 1875). That made me hope to find a case where a similar approach would apply for all Confederate caselaw. And I found just the case, with the help of Berry v. Bellows, 30 Ark. 198, 204-205 (Ark. 1875). The court in Berry declined to follow Penn v. Tollison (and some similar cases), pointing to the US Sup. Ct. decision in Horn v. Lockhart, 84 U.S. 570 (U.S. 1873), as an applicable rule in determining validity of a Confederate court's decision. Here is quote:
"[T]he acts of the several States ... during the war, so far as they did not impair or tend to impair the supremacy of the National authority, or the just rights of citizens under the Constitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government, or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated precisely as in time of peace. No one that we are aware of seriously questions the validity of judicial or legislative acts in the insurrectionary States touching these and kindred subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the National government, and did not impair the rights of citizens under the Constitution."
Horn v. Lockhart, 84 U.S. 570, 580 (U.S. 1873).
And so the order was restored and explained. We can continue to trace the roots further down, without fear of stepping into South caselaw territory, or falling into a hole of missing links.
---
P.S. While looking into this subject, I found that there was an extensive book written on about Confederate courts, called "Justice in Grey: a history of the judicial system of the Confederate States of America" by William Morrison Robinson (1st edition came out in 1941, latest in 1991). Apparently, it is a rare book, I only found one copy at Amazon (for $154), and two copies at AbeBooks (for $300 and $350), and it is sold out or unavailable in most other places. Here is a Google Book link to 1968 edition.
_________________
Since I practice in California, rule's ancestry beyond 1860s quickly becomes unpredictable: we may have a US Supreme Court's case (lucky!), or it be referred to another state's earlier decision (easy), or to jump a hundred years and quote an earlier UK case (not so easy), or even rely on a Spanish/Mexican rule or tradition (the research stops there for me, almost always). This unpredictable change in time or space makes the search exciting, yet it also made me think, what if the chain gets into a decision held by a Confederate court? Are those decisions "bad law"?
The first results were telling, yes, it is bad law, irrespectively of the case's substance. For instance, the most respected book on Confederate law says so. Also, the Supreme Court of Arkansas, in its 1871 decision, held for a complete bar of anything decreed by a Confederate court, based on theses reasoning:
"We are now asked whether this court will regard the service made in 1861, by a Confederate court, as good? If this court was the legal successor of the courts organized under the Constitution of 1861, we would feel inclined to uphold the action of the inferior court, if its action was regular in other respects, but it is not. This court is a lineal descendant of the legal and lawful State government that was in existence under the provisions of the Constitution of 1836. The Constitution of 1868, and that of 1836, sprang from the same sovereignty, while the Constitution of 1861 simply sprang into being through usurpation and treachery of men who betrayed the trust reposed in them by their constituents. The courts, that existed under the Constitutions of 1836 and 1868, were created by the people; the courts, existing under the Constitution of 1861, were the creatures of the individuals who composed the Convention; the former from the sovereignty, and the latter from usurpation and violence."
Penn v. Tollison, 26 Ark. 545, 585 (Ark. 1871).
Yet I remembered that at least in one aspect―contracts made in Confederate currency―the courts were upholding the contracts as valid, so long as"their purposes not having in any way been to promote the rebellion." Gavinzel v. Crump, 89 U.S. 308 (U.S. 1875). That made me hope to find a case where a similar approach would apply for all Confederate caselaw. And I found just the case, with the help of Berry v. Bellows, 30 Ark. 198, 204-205 (Ark. 1875). The court in Berry declined to follow Penn v. Tollison (and some similar cases), pointing to the US Sup. Ct. decision in Horn v. Lockhart, 84 U.S. 570 (U.S. 1873), as an applicable rule in determining validity of a Confederate court's decision. Here is quote:
"[T]he acts of the several States ... during the war, so far as they did not impair or tend to impair the supremacy of the National authority, or the just rights of citizens under the Constitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government, or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated precisely as in time of peace. No one that we are aware of seriously questions the validity of judicial or legislative acts in the insurrectionary States touching these and kindred subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the National government, and did not impair the rights of citizens under the Constitution."
Horn v. Lockhart, 84 U.S. 570, 580 (U.S. 1873).
And so the order was restored and explained. We can continue to trace the roots further down, without fear of stepping into South caselaw territory, or falling into a hole of missing links.
---
P.S. While looking into this subject, I found that there was an extensive book written on about Confederate courts, called "Justice in Grey: a history of the judicial system of the Confederate States of America" by William Morrison Robinson (1st edition came out in 1941, latest in 1991). Apparently, it is a rare book, I only found one copy at Amazon (for $154), and two copies at AbeBooks (for $300 and $350), and it is sold out or unavailable in most other places. Here is a Google Book link to 1968 edition.
_________________
More history posts
No comments:
Post a Comment