Southern Historical Society Papers, Volume 27.
Reverend J. William Jones, Ed.

The Constitution of the Confederate States is a copy of that of the United States, ‘totidem verbis,’ except where the theory of the sovereignty of the States required changes in the Constitution to make that plain. Thus the preamble of the Constitution, that fruitful source of centralizing theories, reads: ‘We, the people of the United States, in order to form a more perfect Union,’ was changed to read: ‘We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent Federal Government.’

Article I, section 1, Constitution of the United States: ‘All legislative powers herein granted shall be vested in a congress,’ &c., [308] was changed, ‘All legislative powers herein delegated shall be vested in a congress,’ &c.

The two constitutions, in parallel columns, are printed as an appendix to my ‘Memoir of Joseph E. Johnston,’ R. H. Woodward & Co., Baltimore, 1891, and the alterations of the Constitution of the United States are shown in that of the Confederate States in italics, and I assert here that every amendment was an improvement on the original instrument. The Confederate statesmen, who then included the leading minds in America, did not propose any change in the government, and they only amended the old Constitution so as to make it conform to the construction which they put upon it, and which was consistent with the origin and history and intention of the original Constitution. They hoped that if war could be avoided, all the other States, except New England ones, would come in and form an amended Union under the amended Constitution. The loss of New England they were prepared to bear in a resigned and Christian spirit, while they congratulated New Brunswick and Nova Scotia on their new associates, who they would find so agreeable to live with. I am bound to say that this Confederate hope was superficial and baseless. They never did understand that the war was not for abolition of slavery, but was a war for dominion of the strong over the weak; of conquest, of selfishness, of avarice. Abolition and humanity were the pretexts; preservation of the Union the mockery, but the reality was the money there was in it, and the money there would be in it when the rich, productive, agricultural South should be made serfs to the vigorous, active, intelligent, greedy North.

The war was a contractors' war. They pushed it on to get contracts, and then pressed it further to make those contracts good.

But the Constitution of the Confederate States was a copy of that of the United States, amended as I have shown.

Article III, section 1, of the old Constitution provides that ‘the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish.’ The amended Constitution adopts this section without change of a word, except ‘Confederate’ is substituted for ‘United.’

This is the only change as appears by the official copy of the Constitution of the Confederate States, now before me, printed by the Congress in Richmond in 1864.

I am thus particular, for what purports to be the Constitution of [309] the Confederate States, just published in the Military History of the Confederate States, contains a serious error. It prints the third article as ‘the judicial power of the Confederate States shall be vested in one superior court,’ &c., Volume XII, page 311.

The Provisional Congress of the Confederate States, at its first session, held at Montgomery, on March 16, 1861, proceeded to organize the judicial power as provided for in the Constitution.

By chapter LXI.—An act to establish the judicial courts of the Confederate States of America—‘the Congress of the Confederate States of America do enact that the Supreme Court of the Confederate States shall hold annually, at the seat of government, one session, commencing the first Monday of January, and continuing until the business of said court is disposed of. The second section provides for district courts for each State. There was no provision for circuit courts. The act is an elaborate provision of fifty-four sections, prescribing the jurisdiction and mode of procedure of the courts. The Constitution provided that the President should, by and with the advice and consent of the Senate, appoint the judges of the Supreme Court, but the law did not fix the number of the judges, and the court could not be organized until such number was fixed by Congress. At the third session of the Provisional Congress, held at Richmond, by chapter III, passed July 31, 1861, entitled’ an act further to amend an act entitled an act to establish the judicial courts of the Confederate States of America,‘provides’ the Congress of the Confederate States do enact that so much of the act approved March 16, 1861, entitled an act to establish the judicial courts of the Confederate States of America, as directs the holding of a session of the Supreme Court of the Confederate States in January next, be, and the same is hereby, repealed, and no session of the Supreme Court shall be held until that court shall be organized under the provisions of the permanent Constitution of the Confederate States, and the laws passed in pursuance thereof.

How a session of a court could be held before there was a court, I do not understand. But that was the law as passed. That was the end of the attempt to organize a Supreme Court of the Confederate States. The reasons for the failure to proceed further have not been recorded as far as I know. Neither President Davis, in his ‘Rise and Fall of the Confederate Government,’ nor Mr. Stephens, in his ‘War Between the States,’ anywhere mention the subject, and the only light which can now be shed on the question are the [310] contemporaneous reports of the debates in Congress, in the Enquirer, the Examiner, and the Dispatch of that period.

The files of these papers are not accessible to me, but I get a glimmer of the reason from a statement to me by Judge Keith, of the Supreme Court.

He told me that when he was on picket duty he read by the light of a camp fire a long and venomous attack of Senator Wigfall on John Marshall and the centralizing tendencies of the Supreme Court of the United States.

Now, when you touch one Fauquier man, the blood of every other Fauquier man, whether on picket or on the Supreme bench, grows red-hot, and I have no doubt that, when the young cavalryman read this attack on his countryman and kinsman, his eyes got red and he blowed and puffed, and just wished he had him at sabre's length. That's the way they used to do in Fauquier. As everybody knows, they've all joined the Young Men's Christian Association since then. (This is a joke, for I don't want some fellow from about Warrenton writing to know if I meant anything disrespectful to Fauquier, sah! I don't, and I love every one of them, God bless 'em!)

Judge Keith's reminiscence gives me the clue to the reason. From the time of the resolutions of 1798-‘99, the States' Rights party had been firm in their opposition to a ‘common arbiter.’ Mr. Jefferson, in his resolution, and Mr. Madison, in his report, had laid down the law, that in case of an infringement of States' rights by the common agent—the Federal Government—each State must be the judge of the wrong done her and of the mode and measure of redress.

The Kentucky resolutions of 1798 were drawn by Mr. Jefferson. They declared ‘that the several States, composing the United States of America, are not united on the principle of unlimited submission to their general government, but that by compact under the style and title of the Constitution of the United States, and by amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving to each State for itself the residuary mass of right to their own self-government, and that whensoever the General Government assumes undelegated power, its acts are unauthorized, void, and of no force: that to this compact each State acceded as a State, and is an integral part; that the government created by this compact was not made the exclusive judge of the power delegated to itself, since that would have made discretion, and not the Constitution, [311] the measure of its own powers; but as in all cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infraction as of the mode and measure of redress.’ On this platform Mr. Jefferson was elected President in 1800, overthrowing John Adams and the Federal party. It was the corner-stone of the Democratic faith, and the government was administered on it in the main from 8000 to 1861, excepting the intersigna of John Quincy, of Andrew Jackson, and of Millard Filmore. The national Democratic conventions affirmed it time and again. But John Marshall, in the Supreme Court, steadily enlarged the delegated power of the common agent, and the northern people generally lost sight of the nature of the Federal government, and, applying the principle of the resolutions of 1798, in the case of secession, set itself up ‘to judge for itself, as well of infraction as of the mode and measure of redress.’

Mr. Calhoun wrote his book to establish the proposition, and I can well understand how President Davis, Senators Wigfall, Mason, and Hunter all agreed that there should be no Supreme Court, the creature of the Federal authority, to become a ‘common arbiter’ in all time in disputes between States, or between States and the Federal government. The conclusion I arrive at is, that there was no Supreme Court, because the Confederate States would not tolerate a ‘common arbiter’ appointed by their agent, the Confederate government.