Recovering the Legal History of the Confederacy

March 25th, 2011

During my research for Original Citizenship, I spent some time studying the government under the Continental Congress, a government that predated the Articles of Confederation. This nascent government was not well-formed, but it did function as a sovereign for some time, and engaged in the types of things a government will do (details later, I promise). I often thought about the government of the confederacy, specifically what were its Court systems like.

G. Edward White has a fascinating piece called Recovering the Legal History of the Confederacy. Here is the abstract;

Although the government of the Confederate States of America has been formally treated as a legal nullity since 1878, from February, 1861 to April, 1865 the Confederacy was a real government, with a Constitution, a Congress, district courts, and administrative offices. This Article seeks to recover the legal order of the Confederacy in its robust state, before the prospect of its obliteration came to pass.

The Article explores the question why certain southern states would have considered seceding from the United States, and forming a separate nation, in late 1860 and early 1861. It then turns to the legal order of the Confederacy that was erected after secession. If focuses on two characteristics of that legal order: its architecture, including the drafting of the Confederate Constitution, the establishment of Confederate district courts, and the failure of the Confederate Congress to organize a Supreme Court for the Confederacy; and the central legal issues with which the Confederate government was preoccupied. The Article concludes that in the minds of contemporaries, the outcome of the Civil War and the dissolution of the Confederacy that accompanied it represented a transformative phase in American history, in which the way of life that the Confederacy symbolized was confined to oblivion..

It’s quite long (92 pages) but looks rather interesting.