Getting back to the OP, it’s an interesting question. I think the actions taken by the Confederate national government would be ruled invalid so that would make any theoretical diplomatic actions invalid. Or any laws enacted by the Confederate Congress.
But it’s an interesting question about the southern state courts and legislatures. The OP made the point about somebody convicted by an Alabama court for a strictly criminal offense in 1863 and sentenced to ten years imprisonment. Would that sentence have still been considered valid after 1865? Or suppose the Georgia legislature enacted a law in 1862. Would that law still be considered as valid as a law enacted by the Ohio legislature in 1862? Or is there a four year void in southern legal history?
This is an interesting take. I wonder what happened to criminal prisoners in Confederate state prisons at the end of the war. Was there an amnesty? It would seem there should be information available about this, but I’ve never seen it mentioned.
I tend to agree with what you have said, but I would contend that by deliberately withdrawing from the union, Virginia forfeited or waived any claims it might have that the convention in the Western Counties was illegal.
Since the “real” Virginia legislature wouldn’t communicate with the federal government, another was formed. Whether it was legitimate or not is a political question which was answered when Congress and the President approved it.
And also, this was before the 14th amendment. “Virginia” had a right to have a legislature in any manner it wanted; even if that was appointing local hack politician to the “legislature.” A Republican form of government, you say? That’s Congress’ job and a Court would likely hold that they did the best they could in a time of secession and war.
Wasn’t it the position of the north that the resolutions of secession were null and void? If so, then the Georgia legislature or Alabama judges were acting as they always did for their states. Only the resolution of secession was illegal.
I realize that this conflicts with the attitude towards West Virginia, but since there was no move to have a “reformed” Georgia legislature, then I would argue that while the ordinance of secession was void, everything else they did was valid.
Definitely agree. Congress also definitively recognized the new state of West Virginia by counting its Electoral College votes in every presidential election thereafter, and seating its members of the U.S. House and Senate ever since.
The purely internal acts and legal processes of the seceded states were never disturbed by the U.S. Government or thought at the time to be illegitimate, from all I’ve read. Obviously it would be a ridiculously huge task to reopen every business contract and retry every state criminal case, for instance, from 1861-65.
The Alabama claims, which stemmed from the British permitting Confederate commerce raiders to be built and crewed in British ports, established some lasting international law precedents: Alabama Claims - Wikipedia
I believe the official position was that the states were still part of the United States but the governments of the states had acted illegally by declaring secession and therefore had no legal authority.
IIRC, wasn’t that Sumner and the “state suicide theory” that was advocated by the Radical Republicans, but not given much wide acceptance?
In other words, wasn’t the prevailing theory that the southern states had passed secession resolutions that were null and void, but everything else was legit?
If not, couldn’t the legislature in 1866 pass a resolution stating that "Everything we did between 1861-1865 is valid but we hereby repeal the secession ordinance, the sense of the Senate resolution that we join the Confederacy, the bill allowing for slave owner compensation, etc. but leave all of the general criminal and civil things intact?
Agreed. Further, I think to take the “West Virginia is not a legal state” argument to its logical conclusion, you would have to say that the 13th, 14th, and 15th amendments aren’t legally part of the constitution as well.
They were passed with puppet legislatures in place in the southern states with many white citizens who had supported the Confederacy unable to vote. Their approvals (except for the 15th) were essential for the states to regain representation in Congress.
There is going to be a certain amount of victor’s justice in any conflict. The north couldn’t just conquer the south and allow them to re-elect the same people who were fighting them. They tried and then got the Black Codes in SC and LA.
Getting back to WV, when a state secedes and you have members of that state form a group saying, “Hey, we are loyal citizens and want you to recognize and help us,” then how could the federal government, in any legal or equitable sense, say no to them?
However, it probably was legal, though like Martin said just by the thinnest of thin hairs.
The Virginia Legislature did vote to break up the state. The Legislature was from Virginia. Just because most of Virginia didn’t send delegates wasn’t that legislatures problem.
I still don’t like it and it is a bad precedent even if Virginia was in rebellion. What makes it more palatable is that Virginia proper didn’t really treat West Virginia all that well and WV should probably have been its own state anyway.
Those have nothing to do with the Civil War. Restrictive covenants are wholly private agreements between property owners. They didn’t appear until after the war, and did not become commonplace until Buchanan v. Warly in 1917 (when the Supreme Court ruled that racially segregated residential zoning violated the 14th Amendment).
