The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1867-02-07


the same reason, u contract founded on that
which under the same exigency, was the
representative of the property, cannot be
illegal. .s#
IfitSbetrne that these notes were necessa.
rily illegal and void in the hands of bona
| tide holder for value. because they emanated
| from governments in rebellion and having no
rightful authority to issue them, upon the
same principle, all kinds Of personal property
ever in the possession Of the hostile Cow
ernment would be contraband in the hands
of q subsequent holder. The merchant, who,
during the war and in the course Of his law
fnl business, obtained q quantity of cloth or
number of wagons, manufactured by the
Confederate States; or the planter, who
fairly became the owner of horses or mules
formerly the property of that Government,
would be incapable of making q valid con-
tract founded on such property, however
honestly 1t may have come to the hands of
the party, and through whatever number of
hands it may have passed before it came to
his possession. But such q doctrine will be
scarcely c0ntended for.
The war, on the part Of the United States,
was directed against the political status of
the seeded States, and not against the, pri-
vare right and property of the individual
citizen. The right of such property was not
disturbed by the war, unless it was actually
United States, and the right of the owner
positively Invested. As general policy, it
was not further interfered with and, as
matter of legislation, no policy, beyond that
just referred to, was declared by the United
States in regard to it. The private debts
and credits subsisting between private indi-
yiduals, in their domestic pursuits, were
likewise not the subject of the action of the
Government. unless they were actually
coiza1 aud a11rar tod
Since the termination of the war, there is
no reason of public policy which demands
that rights of private property, acquired
during its existence, should be disturbed !;
and there are strong reasons of justice and
sound policy why they should be treated as
fixed rights, and should have the protection
of law. As between individuals, this is con-
sonant to justice !; as to the Government, it
does not endanger the public safety; and as
to society, it tends to promote peace and
quiet among its members by protecting pri-
yate rights honestly acquired.
In the recent case of Dick VS.. Boylan, at
this term, the following language is used by
this Court, and is pertinent to the question
before us here:
"In a state of war, the citizen, being COM
PEELED to submit, for the time, to the party
having the possession and control of the ter
ritory i'll which he resides, becomes subject
to its dominion his property and person
arc governed by its laws, and without re-
gard to the international strife his private
rights, under the municipal tGW to achich he is
thus subjected, mast remain the same, no matter
,chat may be the result Of the struggle. =
The subsequent resumption Of authority by the
former sorereigR, cannot change tie character of
past transactions, or deprive the citizens of
rights rested under the laws of the territory
achile it ,ras possessed and gorerned by the en-
emy as their territory" ..ES sss gsse.
By the result of the war, the notes issued
by the Confederate Government have become
valueless, because that Government has
ceased to exist. But this does not FENDER
void private contracts made in good faith
and founded on them, during the war, and
having no connection with the rebellion
The principle is thus laid down by Ruther-
forth: Speaking of the consequences of the
destruction of State, he says:
"The debts of a Society are cancelled,
when the Society perishes; and though the
members, whilst the Society subsisted,
were jointly bound to contribute towards
the payment of the public debts, this obli-
cation will cease when the Society subsists
no longer. But the destruction of the Society
does not cancel any debts sehich the members of
ii had contracted as individuals upon their otrR
pirate account" Rutherforth's Inst Book
z; oh. 10, Ii.
It is the policy eff Governments to main
tain the inviolability Of contracts between
individuals, because it tends to promote mo-
rality and public virtue and the obligation
Of such contracts will never be interfered
with, unless they manifestly appear to have
been entered into, in contrayention of pos
tive law, or of some high principle of public
policy. But such violation will never be
presumed.
The rule in relation to the validity of con-
tracts which emanated remotely or conse-
quentially from illegal acts, is stated with
great clearness in the case of Toler VS.. Arm
strong Wash. G.. G.. r. 297, by that en-
inent jurist, Justice Washington, as follows
"Does the faint in the original transaction
infect and vitiate every contract growing out
of it however remotely connected with it?
This would be to extend the rule beyond the
policy which produced it, and would lead to
the most inconvenient consequences; carried
out to such an extent, it would deserve to
be entitled rule to encourage and protect
fraud. So far as the rule operates to dis
courage the preparation fan immoral or IL
legal act it is founded III the strongest reason,
but it cannot be safely pushed further. If,
for example, man who imports goods for
another by means of a violation of the laws
of his country, is disqualified from founding
any action upon such illegal transaction for
the value Of freight of the goods, or other
advances made on them, he is justly punish
ed for the immortality of the act, and a pow
erfnl encouragement from the preparation
of it is provided by the rule But after the
act is accomplished, no new contract oughttO
be affected by it it ought not to yitiate the
contract of the retail merchant, who buys
those goods from the importer; that of the
tailor who purchases from the merchant, or
of the customers of the former, amongst
whom the goods are distributed in clothing,
although the illegaity of the act was known
to each of these persons, at the time he con-
tracted."
81 understand the rule, as now clearly set
tied, to be, that where the contract grows
Immediately ont of, and is connected with
an illegal or immoral act, a court of justice
will not lend its aid to enforce it," - I
But If the promise be unconneeted with the
illegal act, and is founded on a new conside-
ration. it is not tainted by the act, al hough
it was known to tho party to whom the
promise was made. and although he was the
eontriver and conductor Of the illegal act.
Thus, if A. should during war contrive q
plan for importing goods from the country
of the enemy, on his own account, by means
of smuggling or of a collusive capture and
in the same vessel should be sent goods for
B., and A.sshould upon the request of b. be-
come surety for the payment Of the duties, or
should undertake to become responsible for
the expenses on account Of aprosecution Cor
the illegal Importation, or should advance
money to B. to enable him to pay these cx-
penseS; these acts constituting no part of the
original scheme here would lie q new con-
tract upon a valid and legal consideration,
unconnected with the original act, although
remotely caused by it; and such contract
would not be so contaminated by the turpi-
'tude of the offensive act, as to turn A. out of
court when seeking to enforce it, although