Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-01-06
Union and American.
Decisions Of Che supreme Court.
Thomns NJ. CoIdweII, Attorney General
and Reporter.
o. B. Wright and Robert Cantrel. in error. vs..
Wesley Overall.

Wesley Overall.
This is an action of debt, brought in the
Circuit Court of Shelby county, TO recover
$500, due by promisory note, executed by
the plaintiffs in error, TO one Sampson Yer
gan. and BY him assigned TO Reuben j.
Scott, and BY Scott 10 Overall, who sues the
makers alone,
The contest here arises on a receipt for
$500, executed by Overall on the 9th of
December, 1852, 10 Wright, one Of the
plaintiffs in error. The payment was in
what is known as Confederate money"
and the face Of the receipt shows il was to be
entered as a credit on the note sued on in
this action. The credit was not entered,
and under the instructions of the Circuit
Judge 10 the jury, there was a verdict for
the full amount of the note, with interest
thereon, and Judgment pronounced accord
ing 10 the finding of the jury, from which
an appeal in error is prosecuted to this
court
The Circuit Judge, among other things
not excepted TO, in substance told the jury,
that the receipt was an undertaking on the
part of Overall TO see that the $500 paid,
> should be credited on the note, and mas
much as the credit had not been entered, the
undertaking was executory, and must be
supported by good or a valuable conside-
ration; and that Confederate money" hay-
ing been Issued against public policy and
without authority of law, was neither good
or valuable consideration.
Waving all criticism on his Honor. the
Circuit Judges construction of the receipt.
we think there is no error in the charge Of
which the appellants have any ground of
complaint The whole question turns upon
the validity of Confederate money" and
we are not at liberty TO evade il, by refining
upon the distinction between executory and
executed contracts. Was the Confederate
States" such a sovereign and independent
political corporation or organization, as au-
thorized il 10 coin money, or issue its bonds
or notes. on the faith and credit of the or
ganization, and bind the people of the So
called Confederate States" for the pay
ment thereof? This is the question with
which we have to deal, and however much
the business transactions of the people of
this State may be involved in il, we have
but one duty to perform, and that is, to
tread the path marked out by the law.
To coin money is an act OF sovereignty,
and by the older authorities, it is held Of
such vital importance 10 the honor of the
State, that il was placed among the prero-
gatives of maiesty-and could not be dele
gated. The faith and credit of the State
was always pledged for the genuineness Of
the coin, and the wisdom and policy of the
ancient law, would not therefore entrust the
exercise ofthis right to any other hands than
the reigning sovereign.
Under our form of Government the right
to coin money is by the Constitution, ex-
pressly delegated TO Congress. But to exer-
else this right, requires the exertion of the
sovereign power of the nation. No less
power than the consent of both houses of
Congress, with the approval of the Presi-
dent, can authorize the coming of money,
or the issuance of the bonds or notes Of the
United States, predicated ON the faith and
credit Of the nation.
The published constitution Of the "Con-
federate States" differs in nothing from our
own with respect 10 the grant of these pow
ers, and the mode'of exercising them. 1t
purports fully to confer the power TO issue
bonds or treasury notes, but could that POI
litical organization lawfully exercise such
power? Was il such an Independent State
as would authorize the exercise Of sovereign
powers?
Ii is claimed for them that they had
thrown off the power and authority of the
Government Of the United States, and so far
erected a new and independent government
as TO be, at least, government de tacto, and
asssuch entitled 10 all the rights and privi-
leges belonging TO a sovereign ard indepen-
dent nation.
We cannot assent 10 this proposition. To
do so, would be to settle, by judicial deter
mination, what the Confederate States +"
failed 10 achieve by arms The very object
the Confederate States had in view i'm the
great struggle now ended in the complete
triumph of the national power, was to es-
tablish separate, independent, national ex-
istence, and failing TO accomplish this OBJ
ject, the Courts Of the county can afford no
relief They are bound, as well upon prin-
ciple as authority, 10 recognize the ancient
state of things as remaining unchanged.
This question is neither a new or a doubtful
one. All the authorities, both in England
and America, concur in fixing It's character.
Ii is not n judicial question, but eminently a
great public, political question, which must
be determined by the Legislative and Ex-
ecutive departments Of the national Govern
ment. Halleck on International Law, sec.
20, while speaking on this subject, says:
Until the independence of the new State is
recognized by the government of the coun-
try of which il was before part, or by the
foreign State when lis sovereignty is drawn
in question, courts Of Justice and private in
dividuals, are bound TO consider the ancient
state Of things as remaining unchanged"
In the case of Rose VS.. Himily, Cranch,
24l, this question came directly under re-
view, and Chief Justice Marshall, in deliv-
ering the opinion of the court, said: "The
colony of st. Domingo, originally belonging
TO France, had broken the bond which con-
nected her with the parent State, had de-
clared herself independent, and was endeav-
oriEg to support that independence by arms.
France still asserted her claim of sovereign
~, and had employed a military force in
support of that claim. A war dc facto UNI
questionably existed between France and st.
Domingo. IL has been argued that a colony,
having declared itself sovereign State, and
having thus far maintained its sovereignty
by arms, must be considered and treated by
other nations rs sovereign in fact, and as be-
ing entitled 10 maintain the same intercourse
with the world that is maintained by other
belligerent nations. In support of this ar
gument the doctrines of Vattel have been
particularly referred TO. But the language
OF that writer is obviously addressed 10 sOr-
ereions and NOT 20 courts. II is for govern
ments to decide whether they will consider
St. Domingo as an independent nation, and
until such decision shall be made, or France
shan relinqsrish her claim, courts of justice
must coniider the ancient state of things as
remaining unaltered, and the sovereign
power of France over thecolony unchanged"
This question again came before the Su-
preme Court of the United States in the
case Of Hoyt VS.. Gelston, Wheaton, 1924,
when the principle settled in Rose vs.. Him
ily was fnlly recognized. See also the San
tissima Trinidad and the ST. Ander-7
Wheaton, 2S5-and Kennett ct al. VS.. Cham
bers. Ia Howard, 3S. And still in later
case. in the trial of the Savannah pirates, in
the Circuit Court of the United States for
the Southern district of New York, Mr.. JUS
tice Nelson, with whom Shipman, Judge,
concurred, while delivering the opinion of
the Court, said;
1T Is claimed that the Confederate States have
thrown of the power and authority Of the General
tsovernment-havc erected new and independent
government in its place. and have maintained II
against the whole military and naval power Of the
former. that il is at least government de goeto.
and entitled 60 all the rights and privileges that
belong to n sovereign and independent nation.
The right also, constitutional or otherwise, mas
been strongly urged and the law OF nations, ana
;henommcntarics of eminent pubiicists. have been
referred 10 aS justiSng the secession or revolt OF
these Confederate States. Great ability and re-
search have been displayed by the learned com
sal on this branch Of the case. But the Court do
rot deem Il pertinent or material 10 enter INTO
this wide field Of inquiry. This branch 81 the de-
-. a do M halnnn 10