consisting of the same
mixed bag of noncombatants, dissidents, informants,
smugglers, and deserters as the Union army picked up in greater numbers in its own turbulent backyards. Where military tribunals were frequently used to try these people in areas under federal control, the Confederate War
Department had its equivalent in the Habeas Corpus commissioners, who,
after
a cursory examination, decided whether a prisoner should face trial.
A decision not to send to trial meant detention for an indefinite time.
The competing claims between liberty and order in the Confederacy had nowhere to go for resolution other than a volatile, largely decentralized political thicket. It had no central nervous system, no arteries to take
Confederate laws into the states, adjudicate disputes from or among the states and their citizens, or give meaning to the checks and balances of the new constitution.
The tumult of war, of course, had meant there was not much time to create one, but, more important, there was no inclination either.
Although the constitution provided fora Supreme Court, none was established. Opposition to creating one came from decades of opposition to the ways in which the US. Supreme Court had created the foundations of an ever-expanding judicial power. When we decide that the State courts are of inferior dignity to this Court, we have sapped
the main pillars of thisConfederacy,” argued William Yancey.
20
In March, 1863, the furies erupted over a proposal in the Judiciary Act which would have given a Confederate
Supreme Court an even more extensive appellate jurisdiction overstate supreme courts than that exercised by the US. Supreme Court. No agreement could be reached and a weaker version was also blocked. Although by this point in the war there was a demonstrated need to resolve issues arising from conflicting interpretations of Confederate laws, past experience raised fears, in some cases, to fever pitch.
21
Dred Scott v. Sanford had
been a lonely, temporary victory for slaveowners and did nothing to allay the suspicion that a Supreme Court would be dangerously inventive and expansive in interpreting implied power and national authority at the expense of states. However good a friend Chief Justice Roger B. Taney had been to slavery, he was as good a friend of the supremacy of national judicial power.
It was the North and not the South which was about to find some of his opinions very useful in building bridges into the states, turning them to serve emancipation and Reconstruction.
There were Confederate district courts, but of limited jurisdiction.
Their weakness was compounded by the fact that the Confederate constitution made its district judges removable by a vote of two-thirds of the state legislature, where the US. Constitution guaranteed its federal judges independence. State courts were the ones that mattered. The supremacy of Confederate law was a matter of state consent. Given the lack of a
Confederate
legal presence in the states, the success of the government in organizing its war effort is in some respects more remarkable than its
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Pat Lucie
ultimate failure. Yet in the end its looseness endangered what was common or collective about the liberty it aspired to achieve. There was no mutually binding or enforceable obligation between government and citizen and no means of resolving disputes between and among citizens and states. It was not a design that could have sustained harmonious or effective government for long. Even discounting harmony and effectiveness in favor of maximizing the liberty of individuals, it was never going to survive in anything but the most homogeneous society and for anybody other than the strongest.
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