4.3.1 Mountain South (1861-1877): Law and War

Law and war:  the battle over amnesty and belligerent status

Hedges v. Price – West Virginia, 1867 (2 W.Va. 192); Drehman v. Stifel – Missouri, 1867 (41 Mo. 184); Hardage v. Coffman – Arkansas, 1867 (24 Ark. 256); Smith v. Brazelton – Tennessee, 1870 (48 Tenn. 44); Louisville & Nashville Railroad Co. v. Buckner – Kentucky, 1871 (71 Ky. 277)

  • Should Confederate and Union soldiers be held liable for injuries and property damage they had inflicted on civilians during the war?  This was an issue that perplexed Southern courts immediately after the war.   The issue was urgent in the mountain South because the region’s population was closely divided over the war and had seen much hard fighting and destruction.   
  • In Hedges, West Virginia’s supreme court not only refused to excuse former Confederate soldiers from liability for damage done during war but proclaimed that liability was essential to prevent recurrences of treason.  Other mountain South states took a more measured approach, stating that they would be reluctant to punish any soldier for damage done in the course of regular military duties.  In Brazelton, issued by a supreme court newly reconstituted after Tennessee Republicans lost their postwar grip on power, the state adopted this rule and overruled a series of prior decisions that had see-sawed between leniency and severe treatment of former Confederate soldiers.
  • In Kentucky, the Buckner case likewise demonstrated how sentiment changed as the war receded into history.  Simon Buckner, a former Confederate general (and future governor) was sued under an 1861 Kentucky law for ordering the destruction of a railroad bridge.  The law was repealed after the war and the railroad was forced to return its damages award to Buckner; in 1871, Kentucky’s supreme court required it to pay additional compensation as well.

“It is not intended by this act to declare that the rebellion was justifiable or proper, or that all acts done under the color of the military authorities of the United States were right, but that for the purpose of giving tranquility to the State, a general amnesty is given so far, that regress for wrongs done under color of authority of one or the other Government shall not be given.” – Kentucky Legislature (1867)

“The insurgents secure immunity to themselves, in proportion as their numbers are formidable … If [belligerent status] be the true rule, the peaceful private citizen may be plundered without redress, for he must submit to the loss, if the rebellion succeeds, and the law affords him no remedy if it fail … [it would] offer a premium to treason, and beset the pathway of peace and loyalty with difficulty and danger.” – Justice James Brown, in Hedges

Law and war:  the battle over oaths

State v. Cummings – Missouri, 1865 (36 Mo. 264), reversed, 71 U.S. 277 (1868); Rison v. Farr – Arkansas, 1866 (24 Ark. 161); Ridley v. Sherbrook – Tennessee, 1866 (43 Tenn. 569); Ex parte Hunter – West Virginia, 1867 (2 W.Va. 122); Ex parte Quarrier – West Virginia, 1870 (4 W.Va. 210)

  • Another hallmark of the Reconstruction in the South was the enactment of laws requiring oaths of loyalty to the Union in order to vote, hold office or practice professions such as law and the ministry.  Postwar Unionist governments enacted oaths partly as a check on  lingering Confederate sentiment and partly to preserve their own power.  Some oaths were narrow, requiring only future allegiance to the federal and state constitutions; some were broad “ironclad” oaths, excluding from power everyone who had aided the Confederacy in any way or who had associated with persons who did. 
  • As with amnesty laws, West Virginia took the hardest line of any mountain South state on oaths.  In Hunter its supreme court upheld a law barring attorneys from practicing law unless they swore that they had never sympathized with or aided the Confederacy.  The court rejected an argument that ironclad oath laws were unconstitutional because they were ex post facto (that is, unfair punishment of acts committed before the law made them illegal).  Arkansas’s supreme court took a different view in Rison:  it accepted the ex post facto argument and concluded that ironclad oath laws.   In Cummings, the Missouri court sided with West Virginia and upheld an ironclad oath requirement for ministers, but the U.S. Supreme Court reversed Missouri’s decision and sided with the Arkansas court, thus invalidating all ironclad oath laws.  Nevertheless, in Quarrier West Virginia’s court criticized Cummings and refused to accept it as binding:  attorneys who had sided with the Confederacy would be excluded from the bar until the legislature said otherwise. 
“No person shall be deemed a qualified voter, who has ever been in armed hostility to the United States … or has ever given aid, comfort, countenance, or support to persons engaged in any such hostility; or has ever disloyally held communication with such enemies; or has … manifested his … sympathy with those engaged in exciting or carrying on rebellion …; or has ever, except under overpowering compulsion, submitted to the authority, or been in the service, of the so-called ‘Confederate States of America.’” - 1865 Missouri Constitution

“[I]t would not be less repugnant to the laws of nature and of nations than to the common law, to permit public enemies to avail themselves of the use of the courts they were fighting to destroy, or act as officers  and advisors of such courts, in expounding the laws which the expounders set at defiance.” – Justice James Brown, in Hunter

“[The Cummings case] is … an unwarrantable and dangerous encroachment, under a plausible pretext, upon the reserved rights and sovereignty of the States … To deny to the State the power to exclude its ‘enemies’ from its offices, is to deny to I the power, and an essential means of preserving its existence.” – Justice Brown, in Quarrier

Amnesty and oath laws


West Virginia





Amnesty laws

1866:  Amnesty granted to Confederates acting at the direction of civil and military authorities

1868:  Similar amnesty extended to Union soldiers acting at the direction of the authorities


1861:  Service in Confederate Army is felony

1863:  Criminal laws against aiding Confederacy; persons injured by acts of Confederate or guerrilla forces may sue


1865:  Amnesty for persons acting under Union (but not Confederate) military orders

1866:  General amnesty law

1868:  Amnesty law repealed

Oath laws

1862 WV 46

1865-1868:  Exceptions to oath act carved out

1870:  Certain professionals must swear loyalty to state and federal constitutions; previous oath for attorneys was “wisely and justly passed [but] from frequent evasions of the law, and from a change of circumstances since the passage thereof, the same has become, in a great measure, inoperative and of little use”


1865: In order to vote, must be an active “friend” of the United States and support federal and state constitutions

1867:  Lawyers must take oath to support US and Tennessee constitutions

1862 MO 12: Oath for corporate directors:

1865:  [oath – const]

1870:  [modified oath – const]

1864:  Oath  for __:  must support federal and state constitutions, swear that have not aided Confederacy

Law and war:  Kentucky mourns the passing of the antebellum world

Hughes v. Todd – Kentucky, 1865 (63 Ky. 188); Corbin v. Marsh – Kentucky, 1865 (63 Ky. 193); Commonwealth v. Palmer – Kentucky, 1866 (65 Ky. 570)

  • The Civil War made it difficult to enforce civil law and order in the border states.  One consequence of this was a mass exodus of slaves to Northern lines and freedom, and it soon became clear that whatever the war’s outcome, slavery in the mountain South had been dealt a fatal blow. 
  • The mountain South states reacted in different ways.  Kentucky remained in denial to the end of the war, but in Missouri antislavery forces gained power and embraced the opportunity to abolish the institution.
  • Kentuckians resented the repeated declarations of martial law by Union commanders in the state and federal laws granting emancipation to slaves of Confederate supporters and families of slaves willing to join the Union army.  In Hughes, Kentucky’s supreme court declared these laws unconstitutional, indignantly denying that Congress had the right to take slaveowners’ property without their consent.  Justice __ Williams, who dissented, defended the laws as necessary troop recruitment measures and warned that the modest compensation offered by the government for freed slaves was the best that former slaveowners could get.  In Palmer, the court upheld a criminal prosecution of a Union commander for issuing passes to black refugees in his sector; the court reasoned the commander must have known that some refugees were slaves who would use the passes to escape.  Coming a year after the war’s end, with the federal 13th amendment abolishing slavery about to take effect, the decision represented a final public protest against Union high-handedness during the war – and perhaps a final public mourning of the passing of the slavery era.   

[U]nder what pretense could Congress assume power to abolish slavery in Kentucky, a devoted union State, always for a restoration of the union, and nothing more or less?”  - Chief Justice Robertson, in Corbin

“Could it be expected that he [a slave] would fight for a government that would recognize him as a person, alone, for its own selfish purposes and well being, and for all other purposes that would appeal to his affections, his pride, his manhood, and gallantry, recognize him alone as a chattel?” – Justice Rufus Williams (dissenting), in Hughes

Law and war:  the mountain South and the new federalism

Griswold v. Hepburn – Kentucky, 1865 (63 Ky. 20), affirmed, 75 U.S. 603 (1869), overruled in part, 79 U.S. 457 (1870)

  • The Civil War permanently tilted the state-federal balance of power toward the federal government.  Many states accepted the new order quietly, but some, particularly Wisconsin, did not (see § __). 
  • Kentucky also objected to the new order.  In addition to challenging federal war measures in the state (see above), Kentucky’s supreme court struck down a wartime federal law creating the nation’s first paper currency system.  Chief Justice George Robertson, speaking for the majority, clung to a now-antiquated Jacksonian view that the U.S. Constitution allowed only coinage, and that giving banks or the government the power to use new types of currency would lead to despotism.  Robertson recognized that the U.S. Supreme Court would have the final word (which it did, rejecting Robertson’s view), and Justice __ Williams, a lonely federalist voice on the court, pointed out that the war had changed views of federal power forever.

“This new and beautiful organism [federalism] is yet in the course of practical development, which may soon prove whether its fundamental equilibrium of local and national power is in most danger of disturbance from the centrifugal tendencies of the States, or the centripetal attractions of the central government.” – Chief Justice George Robertson, in Griswold

“In this transition state from peace to war, revolution in the habits of our people and the commerce of the country, surrounded by disloyalty, distrust and alarm, the government must provide for these new exigencies, and without these it could not perpetuate its national existence … and with its downfall must go the last brightest evidence of man’s capability for self government.” – Justice Rufus Williams (dissenting), in Griswold

File:Sam Watkins.jpg

Pvt. Sam Watkins - Tennesseean, Confederate soldier and diarist - courtesy Wikimedia Commons


Federal oath form for released Confederate prisoner (1865) - courtesy Cape Fear Civil War Round Table


A portly, stern-looking man in his late fifties with graying black hair. He is wearing a white shirt and black jacket and facing right

Justice George Robertson (Kentucky)

“[T]he boasted palladium of private property against arbitrary power is but a mockery, and the constitution itself may become a dead letter.” – Chief Justice George Robertson, in Hughes

“Martial law in Kentucky, always a champion of the Union, still self-sacrificingly adhering to it in its severest trial, and thereby saving when her recreance would have destroyed it, was as causeless as it was ungrateful and humiliating.”  - Chief Justice Robertson, in Palmer