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)
“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)
“[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
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)
“[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)
“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 | Federal oath form for released Confederate prisoner (1865) - courtesy Cape Fear Civil War Round Table
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
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EMPIRE OF LAWS - The Legal History of the 50 American States > 4. MOUNTAIN SOUTH LEGAL HISTORY > 4.3 Mountain South: Civil War and Reconstruction (1861-1877) >