See my post at
https://groups.google.com/d/msg/soc.history.what-if/nW3pBOZirnw/s0JPYyccLnIJ where (specifically dealing with Louis Wigfall's shifting views on a Confederate Supreme Court) I quote extensively from the late David Currie's "Through the Looking-Glass: The Confederate Constitution in Congress, 1861-1865"
http://www.virginialawreview.org/vo...s-confederate-constitution-congress-1861-1865
***
"In the next session, in September [1862], proponents of the Court tried
again. The need for a supreme tribunal, said Georgia Senator
Benjamin Hill, had become acute: A circuit judge in his state had
held the Conscription Act unconstitutional and was busily
discharging draftees.467 *Louis Wigfall of Texas agreed: It was
indispensable that there be some tribunal to resolve controversies
over the respective powers of the Confederacy and the states.* [emphasis
added--DT]468 Clark of Missouri did not agree: The district courts were
adequate to handle private litigation; there was no need for appellate
jurisdiction; there was no time to consider the proposal; there was no
immediate necessity for a Supreme Court.469 But the Constitution
required that there be a Supreme Court, replied the anguished Hill,
and the government would be a 'lame and limping affair' without
it; yet the question was postponed again, and once more Congress
adjourned without taking action.470
"The most serious effort to establish a Supreme Court was made
during the third and fourth sessions of the first regular Congress, in
1863. Louisiana Senator Thomas J. Semmes opened the debate for
the proponents. Having introduced the original bill to establish the
Court a year before, said Semmes, he had chosen not to press it,
for the state of the country did not seem to require it at that time.
Now, however, the situation was different: Many questions had
arisen that only a Supreme Court could decide. The Treasury, for
example, was clamoring for an income tax, yet the South Carolina
courts had held state obligations immune from taxation. Earlier
doubts as to the viability of the Confederacy engendered by past
military reverses having been laid to rest, it was time to perfect the
government by establishing all those institutions which the Constitution
required.471
"Henry Burnett of Kentucky repeated Clark's implausible argument
that there was no need for a Supreme Court.472 South Carolina's
Robert Barnwell echoed his mentor, the late John C. Calhoun:
There might be a place for such a Court, but not for the
authority already given it to review state court judgments.473 *Senator
Wigfall, who previously had supported the Court, concurred
with both of them.* [emphasis added--DT]474 Semmes, who had made the
initial proposal, moved to gut his own bill: Section 45 of the Judiciary
Act, which conferred the offending jurisdiction over state courts, should
be repealed.475 That provision was unconstitutional, said Yancey of
Alabama. 476 Supreme Court review of state judgments, added Oldham
of Texas, 'would subordinate the States to the Confederate Government.'
477 No authority to review such judgments was expressly given to the
central government, said Yancey, and thus it was reserved to the
States.478 The Constitution gave the Supreme Court appellate jurisdiction,
said Herschel Johnson of Georgia, only over courts established by
Congress; the states and the Confederacy were each supreme within their
respective spheres.479 *Wigfall, the report tells us, argued for an hour
and a half in favor of repeal; it neglects to tell us what his arguments
were.* [emphasis added--DT] 480
"Without Supreme Court review of state courts, replied Tennessee
Senator Gustavus Henry, the government could not last; disuniform
interpretation of the Constitution would confound confusion.
481 State courts, explained James Phelan of Mississippi, had
already rendered differing judgments respecting the constitutionality
of impressment and conscription, and failure to settle such questions
would disrupt the harmony of the Confederacy: 'If each state
was entitled to its own construction of what laws were constitutional,
the Confederate Government was at an end.'482 The Tennessee
legislature, Henry added, had declared treasury notes legal
tender (in flat defiance, we should add, of an explicit constitutional
prohibition), and the state courts would uphold its action; was
there not in such a case a compelling argument for Supreme Court
review?483 To repeal the provision authorizing that review, said
Phelan, would give the state courts power to disregard Confederate
laws.484
"Nor, said Phelan, did the Constitution say that the Supreme
Court could review only Confederate judgments.485 Article III extended
the judicial power to all cases enumerated in the Constitution,
Henry added, and some of them arose in state courts.486 The
Constitutional Convention itself, said Phelan, had adopted the
provision for Supreme Court review in its capacity as Provisional
Congress; it must have understood, he seemed to imply, what it
had intended in drafting the constitutional provision.487 Phelan and
Benjamin Hill, still a sturdy supporter of the Court, quoted extensively
from the Federalist 'and other ancient publications,' apparently
in support of this conclusion; again the collected debates do
not tell us what they said.488
"Senator Phelan's three speeches in defense of Supreme Court
review, however, were published in full in pamphlet form and are
available on microfilm.489 He did indeed quote from a number of
'ancient publications,' including not only the Federalist490 but also
debates in the early U.S. Congress491 and in the Philadelphia Convention,
including John Rutledge's famous argument that there was no need to
provide for the creation of inferior federal courts, 'the right of appeal
to the supreme national tribunal [] being sufficient to secure the
national rights [and] uniformity of Judgments.'492 Both in the Convention
and in the First Congress, Phelan concluded, it had been universally
agreed that from state court judgments 'an appeal would and ought to lie
to the [U.S.] Supreme Court.'493
"The latter tribunal had said much the same thing in upholding its
authority to review federal questions decided by state courts in
*Martin v. Hunter's Lessee*,494 and that decision posed yet another
stumbling block for those who would deny the constitutionality of
the corresponding Confederate provision. President Davis, as I
have noted, had told Congress that U.S. precedents should serve as
guides to the interpretation of constitutional clauses borrowed
without alteration from the United States, though he would soon
refuse to follow his own advice in the case of *McCulloch v. Maryland*.
495 Opponents of review equally declined to follow it in the
case of Martin--a decision, snarled Semmes, that Virginia had protested
at the time and never accepted. The history of the U.S. Court, he
continued, was one of 'encroachment and usurpation' that the Confederacy
ought not to repeat; it embraced numerous decisions, such as those
upholding the National Bank, that had consistently been repudiated by the
Southern states.496 Time could not sanction error, Yancey added, and U.S.
precedents should never be followed; the Confederate Constitution ought to
be construed on its own terms.497 The Framers of the old government,
Barnwell concluded, may indeed have meant to authorize Supreme Court
review of state court judgments, but those who created the Confederacy
intended their work to be understood with a proper regard for states'
rights.498
"Senator Clay's motion to repeal the review provision was approved
by the startling margin of 16-6. 499 The Senate then voted
nearly two to one to establish the Court without the rejected authority,
which was better than nothing.500 The House sent the bill to
its Judiciary Committee,501 on whose behalf Arkansas Representative
Augustus Garland made a last eloquent plea for restoring appellate
power over state court judgments,502 but in vain; the House
never passed the bill either with or without the contested review
provision. And that was the end of serious efforts to implement the
constitutional directive that the judicial power be vested not only
in inferior courts of Congress's choosing but also 'in one Supreme
Court.'503"
***
So it appears that Wigfall
(1) backed a Supreme Court in September 1862 because it was indispensable
that there be some tribunal to resolve controversies over the respective
powers of the Confederacy and the states;
(2) in March 1863 agreed with both Henry Burnett (who argued there was no
need for a Confederate Supreme Court) and Robert Barnwell (who thought
that there might be a place for such a Court, but did not want it to have
the authority to hear appeals from state courts).
(3) finally voted for the Senate bill authorizing the Court--once it had
been stripped of the power to review state court judgments.
Suppose something like the the final version of the Senate bill had been
approved by the House--either then, or later--and that the Confederacy had
won the war. How powerful would a Confederate Supreme Court which could
not hear appeals from state courts be? The US Supreme Court had after all
made some very important decisions before *Martin v. Hunter's Lessee.*
(Incidentally, SCOTUS heard appeals from state courts in cases well before
*Martin*; the reason these cases are little-known is that the parties
never questioned the jurisdiction of the Court to decide them.) But there
would be the anomaly that the Confederate Supreme Court could presumably
rule on the constitutionality of state executive and legislative
decisions--if they were first challenged in a Confederate District Court
and then appealed, or if they came within the scope of the Confederate
Supreme Court's original jurisdiction--but not state judicial ones.
As noted, many southerners had never accepted SCOTUS's decision in
*Martin*. In *Martin* Judge Cabell of the Virginia Court of Appeals had
argued that section 25 of the Judiciary Act of 1789 [1], authorizing
appeals from the highest court of a state to the US Supreme Court, was
unconstitutional:
"...But the act of Congress now under consideration, attempts, in fact, to
make the State Courts Inferior Federal Courts, and to exercise through
them, jurisdiction over the subjects of federal cognizance.
"...[T]he appellate jurisdiction of the Supreme Court of the United States
[under Article III of the Constitution] must have reference to the
inferior Courts of the United States, and not to the State Courts...It is
contended that the constitution contemplated only the objects of appeal,
and not the tribunals from which the appeal is to be taken; and intended
to give to the Supreme Court appellate jurisdiction in all the cases of
federal cognizance. But this argument proves too much, and what is
utterly inadmissible. It would give appellate jurisdiction, as well over
the courts of England and France, as over the State courts; for, although
I do not think the State Courts are foreign Courts in relation to the
Federal Courts, yet I consider them not less independent than foreign
Courts."
To the argument that without the appellate jurisdiction, "there will be no
other mode by which congress can extend the judicial power of the United
States to the cases of federal cognizance; that there will, consequently
be no uniformity of decision," Judge Cabell replied that this problem
could be resolved "by the erection of Federal Courts, into which any
party, plaintiff or defendant, concerned in a case of federal cognizance,
may carry it for adjudication."
Justice Story's reply was that removal was itself a form of appeal:
"Precisely the same objections, therefore, exist as to the right of
removal before judgment, as after, and both must stand or fall
together." And in any event the remedy "of removal of suits, would be
utterly inadequate to the purposes of the constitution, if it could act
only on the parties, and not upon the state courts."
http://laws.findlaw.com/us/14/304.html
[1] "And be it further enacted, That a final judgment or decree in any
suit, in the highest court of law or equity of a State in which a decision
in the suit could be had, where is drawn in question the validity of a
treaty or statute of, or an authority exercised under the United States,
and the decision is against their validity; or where is drawn in question
the validity of a statute of, or an authority exercised under any State,
on the ground of their being repugnant to the constitution, treaties or
laws of the United States, and the decision is in favour of such their
validity, or where is drawn in question the construction of any clause of
the constitution or of a treaty, or statute of, or commission held under
the United States, and the decision is against the title, right, privilege
or exemption specially set up or claimed by either party, under such
clause of the said Constitution, treaty, statute or commission, may be re-
examined and reversed or affirmed in the Supreme Court of the United
States upon a writ of error..."
http://www.fjc.gov/history/home.nsf/page/landmark_02_txt.html