Rebellion in the Temple of Justice: The Federal and State Courts in South Carolina During the War Between the States

By Warren Moise

Ghost Courts of the War Between the States

In 1860, news of Abraham Lincoln's election arrived in Charleston like a fire alarm. In the United States courtroom on Chalmers Street, the grand jury simply refused to go on. All eyes are on the judge. In a dramatic moment, Judge A.G. Magrath, tears off his robes and tells jurors and spectators that, rather than continuing under tyranny, his Temple of Justice is forever closed. Thus in this long-since forgotten room took place the first official act of disunion, predating the Ordinance of Secession by over a month and lighting the fuse that lead to war.

Preserving a piece of history few knew existed, trial attorney Warren Moise takes the reader back in time to the courts and law practice of a different era. Ride into the frontier town of Spartanburg by night with two tired lawyers where to their surprise they see hundreds of sweating men fighting bare-fisted in the flickering torch light. Just as important, learn the never-before documented role of the bench and bar in the battle for secession and of the Confederate States court, where the CS Attorney prosecuted former US Attorneys James L. Petigru and Edward McCrady for contempt because they defied Confederate law.

• Language: English
• Publisher: iUniverse
• Release date: Sep 30, 2003
• ISBN: 9781469798905

Warren Moise

Warren Moise is an adjunct law professor and trial lawyer living in Mt. Pleasant, South Carolina with his wife Lucie and daughter Bracey. His legal treatises are cited in appellate opinions. Previously, he was a musician, recording with the Chairmen of the Board, the Drifters, Maurice Williams, and other groups.

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Contents

PREFACE

PART I

JUDICIAL SYSTEM OF THE CONFEDERATE STATES OF AMERICA

1   

South Carolina’s Role in Creating the Constitution and Federal Courts of the Confederacy

2   

The Confederacy’s Department of Justice

3   

The Confederate States Court for the District of South Carolina

4   

Court Business During the War Between the States

5   

Battle Over the Confederate States Supreme Court

6   

Last Days of the Confederate Court in South Carolina

7   

Post-War South Carolina, and the Return To Power of the Confederate Court Officers

PART II

THE SOUTH CAROLINA STATE BENCH, BAR, AND COURTS OF THE CIVIL-WAR ERA

8   

South Carolina on the Eve of War

9   

Legal Education and Admission to the Bar in the Civil-War Era

10

The State Judicial System

11

The Everyday Practice of Law in 1860

12

Women, Slaves, Freedmen, and the Courts

13

The Judiciary, Attorney General, and District Solicitors of1860: Power in the Courtroom

14

The Role of the Bench and Bar in Secession

15

South Carolina’s State Courts in Wartime

16

After Sherman: Chaos

APPENDIX A

CONSTITUTION OF THE CONFEDERATE STATES OF AMERICA¹

APPENDIX B

SOUTH CAROLINA CONSTITUTION OF 1861¹

APPENDIX C

CONFEDERATE STATES SEQUESTRATION FILE DOCUMENTS

APPENDIX D

ENTRIES FROM MINUTE BOOK OF THE SOUTH CAROLINA COURT OF APPEALS

APPENDIX E

CONFEDERATE COURT ACCOUNTING RECORDS

APPENDIX F

LEGAL PUBLICATIONS OF THE CIVIL-WAR ERA

ABOUT THE AUTHOR

END NOTES

Thanks to Rick Corrigan of the Preservation Society, Jerry English, Dr. Tom Johnson of the South Carolinian Library, Robert Rosen, P. Edwin Trouche, Dr. Charles Reeves of the National Archives in Atlanta, William M. Robinson, Jr., Rosaleen Jenerette Poole and Mrs. John Barrows of the Confederate Home in Charleston, Erwin Surrency, and Mr. Gus Graydon of Columbia for their help. The Confederate States Constitution is reproduced by permission of Bill Fray of the Avalon Project at the Yale University School of Law. The South Carolina Secession Convention documents, including the South Carolina Constitution of 1861, are used by permission of the Academic Affairs Library at the University of North Carolina at Chapel Hill, which sponsors the collection known as Documenting the American South. Finally, the photographs of the bench and bar of South Carolina are used by permission of the South Caroliniana Library at the University of South Carolina.

PREFACE

Inter armaleges silent. In times of war, the laws are silent. Other than a brief period of martial law administered by Johnson Hagood, however, Cicero’s maxim was inapplicable to South Carolina during the War Between the States. In fact, there were two functioning judicial systems in this state throughout the war until General Sherman marched North from Savannah. One was the state courts, which had decided civil disputes and criminal prosecutions since the American Revolution. The other was the Confederate States Court for the District of South Carolina, a powerful and prestigious court that existed for four years but long since has been forgotten.

The colorful judges, prosecutors, and lawyers who argued in the courtrooms of the past are now reduced to bland, formal names in case reporters. There are a few texts describing the early bar and the practice of law in South Carolina, such as Benjamin Perry’s publications of the late-1800s, but they generally are found only in rare-book shops. The role of the bench and bar in South Carolina’s secession from the Union has never been documented, but it certainly was a substantial one. As will be seen, the South Carolina bench and bar had a leading part in the drama that led to disunion. Once war began, most of the attorneys put aside their law practices, joined the armies in the field, and fought for the South.

It can be fairly stated that the first break from the Union was done in the United States court on Chalmers Street, well before the Secession Convention first met or the Ordinance of Secession was signed. However, as with the state courts, the history of the Confederate court, and of its judges, lawyers, and cases, is being lost. Since beginning research into this subject many years ago, I have taken an unofficial poll from numerous members of the bench, bar, and public about the existence of the Confederate judicial forums. No one asked was aware that the Confederate federal court system, judges, and prosecutors ever existed. In addition, the only comprehensive work on the Confederate judiciary and department of justice is out of print and found only in a few libraries.

For my research, I have traveled from the National Archives in Atlanta to the State Archives in Columbia, from the South Caroliniana Library to the South Carolina Room in the Charleston Library, and many points in between. It was quite an education. The few remaining original Confederate States court books

from South Carolina are generally from the western division of the state, although there are a number of case files from the eastern division and some admiralty court documents. Many documents and files from Charleston may have been burned or looted in the 1865 occupation of Columbia. Probably most existing South Carolina Confederate court documents are now in National Archives Record Group 109 in Atlanta, with the exception of some bills of sale by the Confederate States Deputy Marshal in Record Group 41, a ledger book at the South Carolina Department of Archives and History, one privately published account of Petigru’s contempt hearing now in the University of South Carolina Law School Library, and two of Judge Magrath’s orders kept at the South Carolina Historical Society. Those rare South Carolina histories mentioning the Confederate courts only devote approximately a sentence or two to the subject.

Similarly, much of South Carolina’s state court documents have been lost. When Thomas Cooper attempted in the early 1800s to discover the texts of the early state statutes, he learned that many were no longer readable. The state appellate court records and library later were destroyed when Columbia was burned in 1865. Many documents of the South Carolina Supreme Court created since the Civil War apparently were destroyed when the statehouse basement was flooded around the First World War’s end.

Needless to say, my attempt to recreate the story of these ghost courts is probably flawed from a scarcity of hard information, not to mention that I am a pale shadow of the wonderful historical writers whose talents have recorded our state’s history for hundreds of years. I hope, however, that this book will help preserve a small but important part of South Carolina’s past.

PART I

JUDICIAL SYSTEM OF THE CONFEDERATE STATES OF AMERICA

1   

South Carolina’s Role in Creating the Constitution and Federal Courts of the Confederacy

The colossus known as the Confederate States of America was a sprawling nation with a land mass equal in size to Great Britain (including Ireland), Sweden, Norway, Denmark, the Italian Kingdoms, the Netherlands, Belgium, France, the German cities and states, and the states of the Church combined as one. Its government legislated matters of life, death, and property for the millions of persons within its borders.

Representatives and senators sitting in the federal congress in Richmond, Virginia included legislators from all states as well as delegates from the Arizona Territory and the Creek, Seminole, and Cherokee nations. Standing committees of the Confederate congress wrestled with day-to-day problems of the new nation and included the ways-and-means, postal, finance, and Indian affairs committees.

The executive department of the Confederacy under President Jefferson Davis dispatched diplomats to the government seats of the world’s most powerful nations. As commander-in-chief of the fledgling nation, President Davis wielded an awesome sword. Military observers from the European powers watched in amazement as the massive armies of the Confederate States dominated battlefields during the early years of the war. Confederate infantry and cavalry ranked among the best on earth. The South’s navy would launch an ironclad ship which instantly made all other nations’ battleships obsolete.

Co-existing with the legislative and executive departments of the Confederate government was its judiciary. Soon after secession, the Confederate States Congress created federal courts and a department of justice. South Carolina became a judicial district, and its federal court enforced the constitution, statutes, and executive orders of the Confederate States of America.¹

Before the Confederate federal-court system could be organized, however, a constitution was needed to vest the courts with jurisdiction.² Southern lawyers steeped in American law dominated the constitutional convention in Montgom-ery.³ Just as Charles Pinckney and John Rutledge had done in Philadelphia at the Constitutional Convention of 1787,⁴ South Carolina lawyers became actively involved in the drafting of the Confederate constitution. Of the 15 legislators sent by South Carolina, 12 were attorneys, one of the remaining three legislators had studied law, and a second had been a commissioner in equity for 27 years.

Five South Carolinians were most heavily involved in drafting the two Confederate constitutions. Christopher Gustavus Memminger was born in Wurttemburg, Germany on January 9, 1803. His father, a soldier, was killed in the Napoleonic Wars, and his mother brought the child to Charleston. She died when he was only four years old, and he was raised by future South Carolina Governor Thomas Bennett.⁵ Unlike some delegates schooled in the law, Memminger was a litigating attorney. He practiced law in Charleston with the firm of Memminger, Jervey, and Wilkinson. Later he would ascend to the office of Secretary of the Treasury in the Confederate federal government where blame would be heaped upon him for the Confederate financial fiasco. As an aside to abusing him for the Confederacy’s financial problems, the Richmond Whig decried Memminger in 1863 as having been a second rate lawyer in Charleston, famous for the energy and persistence with which he collected small bills and dunned petty debtors. However, the fact is that Memminger was a successful lawyer before the war, shrewd and cool-headed. He had signed the Ordinance of Secession at the age of 57 before traveling to Montgomery as a delegate to the Confederate Provisional Congress. It was Memminger who first proposed to the Provisional

Congress that a committee draft a constitution. His proposal was adopted, and Memminger was named chairman of that committee. He became "actively engaged…in writing both [Confederate] constitutions…and in organizing courts.

Image340.JPG

Christopher Gustavus Memminger (Photo courtesy of South

Caroliniana Library)—Initially a Unionist as a young man, Memminger later helped write the Confederate provisional constitution and became Secretary of the Confederate States Treasury. His push to have a working supreme court was partially motivated by a desire to overturn orders of the district-court judge from his own state: A.G. Magrath. His promotion of education after the war is attested to by a Charleston school that still bears his name.

Robert Woodward Barnwell of Beaufort already had enjoyed a successful scholastic and public-service career by 1861 when he journeyed to the Provisional Congress in Montgomery. Barnwell had been valedictorian at Harvard College in 1827 where he became friends with schoolmate Ralph Waldo Emerson.⁸ After serving as a somewhat shy, self-effacing legislator in the South Carolina House of Representatives, United States House of Representatives, and United States Senate, Barnwell had succeeded Thomas Cooper as President of South Carolina College. A member of the political and social elite, his favorite plantation house was Woodward on Port Royal Island, and his town house on The Point was Beaufort’s unofficial center of culture. Barnwell was educated in the law, and upon his arrival at the Convention, he was named temporary president. Barnwell was appointed to the committee to draft a provisional constitution with Memminger. The provisional constitution was unanimously adopted by the congress on February 8, 1861, and South Carolina’s delegates were its first signatories.⁹

After adoption of the provisional constitution, an interim government was formed. The Confederate congress then began drafting a permanent constitution. Robert Barnwell Rhett of Charleston, former United States Senator, South Carolina Attorney General, legendary secessionist, and fire-eater also was a delegate to the Provisional Congress.¹⁰ His son’s newspaper, the Charleston Mercury,¹¹ was the premier secessionist newspaper of the era. Indicative of its tone, the Mercury described Abraham Lincoln as the beau ideal of a relentless, dogged, free-soil Border Ruffin, a vulgar mobocrat and a Southern hater. Rhett became Chairman of the Committee on the Permanent Constitution. In keeping with his character as the enfante terrible of South Carolina politics, Rhett attempted to radicalize the permanent Confederate constitution but met with little success.¹² His excitable nature was ill-received by Jefferson Davis and others in the Confederacy, who believed him too radical for a post in the federal government. Rhett died in 1876 in Louisiana, still un-reconstructed.

Image347.JPG

Robert Barnwell Rhett (Photo courtesy of South Caroliniana

Library)—He was Chairman of the Committee on the Permanent Confederate Constitution. Though known as the Father of Secession, Rhett lost a bid to win the presidency of

the Confederate provisional congress, received few appointments, and failed in his attempt to be elected to the Confederate States Congress in 1863.

Former United States Senator James Chesnut, Jr., born in Camden, South Carolina, also had been a member of the South Carolina Secession Convention before his election as a delegate to the Provisional Congress. James Chesnut was the husband of Mary Boykin Chesnut, whose famous diary recorded many of the era’s most important events from secession to the end of the War Between the States. James Chesnut too was an attorney. He became a member of the Committee on the Permanent Constitution13 with Rhett. Chesnut proposed that the

constitution include the right to secession;¹⁴ however, he was not re-elected to the Confederate congress and missed the final three months of meetings.¹⁵

Image356.JPG

James Chesnut, Jr. (Photo courtesy of South Caroliniana Library)—As a United States Senator before the war, Chesnut’s oratory skills lifted him above many other southern legislators. His wife, Mary Boykin Chesnut, is well known for

her diary.

Also involved in drafting the constitution was state law judge Thomas Jefferson Withers of the Kershaw District, a former editor of the Columbia Telescope who had quit the influential paper rather than compromise his views on nullification.¹⁶ Withers was a wealthy man at the time of secession, owning an estate worth $107,000. A member of the South Carolina secession convention in 1860,¹⁷ Judge Withers later was a delegate to the Provisional Confederate congress where he became a member of the judiciary committee working on the new constitution.

Judge Withers’ tenure on the state trial bench had been marked by a prompt dispatch of court business and an irritable, cranky manner of dealing with the lawyers before him.¹⁸ He wielded sarcasm like a razor-sharp sword, slicing those who displeased him. The irascible judge continued his outspoken ways at the convention in Montgomery, both in judiciary committee meetings and in social gatherings.¹⁹ He argued that the new constitution should omit the words We, the people found in the United States Constitution, and he also believed that the powers should be delegated to the government rather than granted.²⁰ The latter of Withers’ proposals actually was written into the Confederate constitution.

The permanent Confederate States constitution was unanimously adopted on March 11, 1861 by the Provisional Congress. Rhett had moved that the debates be recorded by a stenographer, but the Provisional Congress rejected his motion.

As a result, no records of the constitutional debates exist outside of the Congress’ journals.

A certified copy of the Confederate constitution was sent by its president, Howell Cobb, to the South Carolina Secession Convention meeting in Charleston. The document was laid before the delegates at St. Andrew’s Hall on March 26, 1861 and was ratified by