The lost volume of the Mississippi Reports

NMC and others commenting on an earlier post brought our attention to a hazily-remembered Mississippi case that anathematized an entire volume of the Mississippi Reports.

Judge Southwick, in an article on separation of powers in Mississippi, identifies the case and gives some background (74 Miss. L.J. 47, 134 n. 203):

... In the upheavals after the Civil War, a justice of Mississippi's highest court declared in a habeas corpus ruling that the federal Civil Rights Act of 1866 violated the federal constitution because the Thirteenth Amendment was inadequate authorization for that Act. Ex parte Lewis, WEEKLY CLARION (Jackson, Miss.), Oct. 4, 1866, at 2 (Miss. Oct. 4, 1866); see also Decision of Chief Justice Hardy, Declaring the Civil Rights Bill Unconstitutional, N.Y. TIMES, Oct. 26, 1866, at 2 (excerpting about two-thirds of the lengthy opinion). This single-justice opinion was not officially published. A black former Union soldier named James Lewis had been convicted in Madison County under an 1865 state statute that prohibited only freedmen, free Negroes and mulattoes from possessing firearms; the 1866 Civil Rights Act gave to such individuals the full and equal benefit of all laws of a state. Ex parte Lewis, WEEKLY CLARION (Jackson, Miss.), Oct. 4, 1866, at 2 (Miss. Oct. 4, 1866). The Lewis opinion found that the Thirteenth Amendment freed slaves but did not create a basis for granting full rights as citizens; adoption of the Fourteenth Amendment two years later mooted that argument. Id. Apparently and unsurprisingly, the Lewis decision had no impact on the federal military leadership then in control of the state. The audacity of the decision troubled some who agreed with it: "The truth well spoken is proper, but even the truth can be officiously spoken out of place and do great harm." HINDS COUNTY GAZETTE (Raymond, Miss.), Oct. 19, 1866, at 1.

The judge who heard the petition for the writ, Alexander Handy, resigned in frustration a year later and said that the judiciary's powers were held and exercised in subordination to the behests of a military commander. A.H. Handy, Resignation of Judge Handy, AMERICAN CITIZEN (Canton, Miss.), Oct. 19, 1867, at 1. Handy's two judicial colleagues also resigned. The federal military commander appointed three replacements and also filled subsequent high court vacancies until Mississippi was readmitted to the union in 1870. JOHN RAY SKATES, JR., HISTORY OF THE MISSISSIPPI SUPREME COURT, 1817-1948, at 27-28 (1973). The lingering bitterness from those years of conflicts between some state leaders and the federal military led to rhetorical venting even thirty years later. The judicial successors to Justice Handy, once the Democratic Party was again firmly in control of all levels of state government, declared that all opinions of the state's highest court during the period of military-appointed judges were void. Lusby v. Kansas City, Memphis & Birmingham R.R. Co., 19 So. 239, 242 (Miss. 1895) ("The opinions found in that volume [42 Miss.] are the utterances of a tribunal appointed by the military satrap, who then ruled in a prostrate commonwealth, and have no other binding authority upon us than that each case therein must be regarded as res adjudicata".).

Lest that seem like so much ancient history, the Court cited the holding of Lusby as (apparently) good law as recently as 1991: In re Estate of Childress, 588 So. 2d 192, 195 n.4 (Miss. 1991).

... I have a sneaking suspicion that "satrap" was not an unusual term of abuse in the unReconstructed South, tho I'm not at all read-up on the relevant literature. Satraps were governors of provinces in the Persian Empire, whose defeats by liberty-loving Greeks were part and parcel of history education at the time (Marathon, Salamis). And of course that empire eventually fell to a tough crew of Macedonian rednecks (all too easily reinterpreted as culture-bearers), so the term implicitly carried with it a happy ending, from the p.o.v. of the expostulating Southerners.

... Justice Handy was not the worst of his kind, at least; he ruled against whites using fraudulent means to expropriate freed slaves. Tho as the author nicely puts it, the judge "did not lean to the side of liberty." Indeed. Daily Kos found a book on secession commissioners that quotes the good judge: "Slavery was ordained by God and sanctioned by humanity." Here are some admiring bios of Handy - the source, an 1881 collection on "The Bench & Bar of Mississippi," is worth a bookmark, tho the bias of the author is only too evident.