Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1868-12-08
UNION AND AMERICAN
CONFEDERATE CONVERSATIONS.
Loyal Dividends COnIiscated Under
Confederate Authority must be RE
psid-rhe Comic teracy mot "A deIaeiO
Government.

paid-rhe COnfe teracy not "A defae
Government.
Among the most important opinions d
livered by Chief Justice Chase at Il
recent term of the United States Circu
Court at Richmond, Virginia, is that Il
case of the administrators Of Chatherir
c. Keppell against the Petersburg Raj
road Company, which is as follows:
This is suit by the administrators {
stakeholder of the Petersburg Railroa
Company, who was citizen Of Pennsyl
vania, and resided in the city Of Phila
delphia during the late rebellion, to com
pei that corporation, created by the stat
utes of Virginia and North Carolina, an,
having its principal Office at Petersburg
to account for dividends declared by tn
company during 1861 and subsequently
before the filing Of the bill on the 22d o
November, 1866 According to the state
ment Of the answer admitted to be true
by written stipulation Of tho counsel
Catharine G. Keppell, before the rebellion
was the owner of two hundred and three
shares of the company's stock, and sub
sequently, by further issues Of stock, be-
came entitled to one hundred and one ad-
aielonal shares, making a total of three
hundred and four shares. After the Sc
ceSsion Of Virginia, and organization off the
southern Confederacy, the company sub
United without opposition, to the control
oil the Confederate government set up
over North Carolina and that part OF
virginia in which the road lay, in hostile
exclusion Of the constitutional authority
OF the United States. Subsequently, on
the Both Of August, 1861, the Confeder-
ate Congress passed an act for the seques-
tration or confscation OF all property
found within the rebel States belonging
to loyal citizens of the other States Of
the Union. Under this act, such pro-
,csedings were had by district Judge
Bholding court under the pretended
authority Of the Confederate Govern
mens, and by receiver appointed by
him. that ninety shares OF Mrs. Keppelfs
sock were sold to sundry purchasers,
and dividends were paid on the whole
number of shares, partly to these pur-
chaSers and partly to the receiver.
These dividends amounted to one hun
dreG an nine per cent, and were paid at
different times from July, 1861, TO No
vember, 1864, inclusive. After the over
throw Of the Confederacy, the sales made
by the receiver were treated as utilities
by the railroad company. Scrip for the
one hundred and one additional shares
was sent to the compliments, as admins
istrators, and if dividends had been sub
sequently declared, payment would hay
been made to them on the whole
three hundred and four shares. 1t
appears from this statement that
the company itself regarded the
cOnfScation act as null and of no
force so far as the sale Of the ninety shares
was concerned That sale was treated as
a nullity and the title of the purchasers
under it as worthless. But the company
claims, first, that payments Of dividends
made under the same act, to the receiver
and the purchasers must be upheld as
valid payments and second, if this claim
be disallowed, then that the liability of
the company was only to pay, on demand,
the dividends Of Mr.. Keppell in such
currency as was necessarily received, and
no demand having been made except by
the commencement of this suit after that
currency had become wholly worthless,
no decree can now be made against tbs
company. The first of these propositions
rests upon the premises that the Confede-
rate organization was a government de
tdctO, and that acts in obedience to its
authority must be presumed to have been
done under the compulsion of superior
force, by reason Of which the actors are
discharged from all Interior responsibility.
OF this it may be observed, in the first
place, that the term de fdctO, as descrip-
tive Of a government, has no fixed and
definite sense. 1t is, perhaps, most cor
roctly used as signifying a government
completely, though only temporarily, es>
tabllshed in place of the lawful or regular
government, occupyingits capital and ex-
erciSing iLspower. Examples Ofthjs kind Of
de fdctO governments are found in Eng
llsh history some in the violent seizure
and temporary possession of royal power,
and one, so conspicuous that the
world can never lose the sense Of it, in
the establishment Of the commonwealth
and the IrOtectoTate in place of the mon
aTchy. In this sense, certainly, the Rebel
government was never de .1dctO govern
ment IL never held the national capital.
1t never asserted the authority to repre-
sent the nation. 1t was only what it pro-
fessed to be-a revolutionary organization
seeking TO establish a confcderacy Of
States disconnected from the United
Safes, and dependent wholly for success
upon the success of the revolution. The
term, however, is used, and perhaps moro
frequently in a sense less precise, as sig
Hifying any organized government estab-
lished for the time over a considerable
territory, in exclusion Of the regular gov
eminent. A dc .fGctO government Of this
sort is not diStinguishable in principle
from other unlawful combinations. 1t is
diStinguishable in fact mainly by power,
and in territorial control, and by the
policy usually adopted inrelation to it by
the national government Treason in
England is not committed against the
lawful government by acts Of hostility
Gone in support of de .facto government
strictly So-called. This is the
rule established by the statute II
AiCAl liz pdSoCU Win lCtGlSuNC "
the frequent changes in the royal au-
thority during the civil wars Of York
and Lancaster. And the reason Of the
rule doubtless extended to acts done
under the Parliament and the Protector,
while in possession of the supreme au-
thority in England, though the benefit
of it was denied TO many, and in most
conspicuous instance to Sir Henry Vane.
And it may be well doubted whether in
this country treason against the United
4 States could be committed in obedience
to a usurping President and Congress,
exercising unconstitutional and unlawful
power at the seat of the national govern
ment. But it cannot be maintained that
acts against the king, committed in
obedience to a usurper temporarily in
possession Of a part Of the kingdom,
would not be treason in England; or
that levying war against the United
States by persons, however combined
and confederated, (even though success
ful in establishing their actual authority
in several States would n5t be treason
here. What effect, then, is to be given
to acts done under the authority Of an in
surgent body, actually organized as a
government, and actually exercising the
powers of a government, within large
extent of territory, not merely in hostili-
ty to the regular and lawful government,
but in complete exclusion Of it from
the whole territory subject to the
1.