6.4.1 Deep South (1861-1877): Law and War

Wartime protests against Confederate tyranny

Jeffers v. Fair - Georgia, 1862 (33 Ga. 347); Ex parte Hill – Alabama, 1863 (38 Ala. 429); Parker v. Kaughman – Georgia, 1864 (34 Ga. 136)

  • In 1862, both Congress and the Confederacy, enacted draft laws but provided that draftees could buy their way out by hiring substitutes.  Both laws were unpopular and were challenged, unsuccessfully, as an infringement of civil liberties.  In 1864 the Confederacy, desperate for more troops, extended the draft to men who had previously hired substitutes.  
  • Many new draftees challenged the law; they argued that the Confederate states had seceded to escape the tyranny of central government and had not intended to create a new central power in Richmond.  Similarly, Georgia governor Joseph Brown argued that the government could not take state employees for the war effort.  These arguments met with little sympathy in the Deep South, although courts there upheld the draft laws based on pragmatism rather than any love for centralized government.  

Postwar reaction to the new federalism

  • After the war, federal and Southern courts wrestled with whether acts of the now-defunct Confederacy should be given continuing legal effect or should be treated as null and void ab initio (from the beginning).  The question was not academic:  it affected the South’s postwar economy in important ways, and it raised the fundamental question:  Was the American union perpetual, or was the Confederacy truly and independent nation during the war?  
  • In Texas v. White (1869), the U.S. Supreme Court endorsed Lincoln’s belief that the union was perpetual and indivisible, but it and other courts recognized that voiding all Confederate-era transactions would cause many practical problems, and they made accommodations accordingly.

“It is concession enough to Liberty, that with us, even in such crises, the power is wielded by no usurping or hereditary despot, according to his caprice, but by chosen representatives of the people … Still, it must be real power, power over the citizen, which he may not resist; else, over-sensitive republicans, aspiring to independence of their own government, may be enslaved by another.” – Justice __, in Parker


[Stone quote from Hill – 455]=