Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-11-06

fGctO in the absolute sense. 1t made laws,
treaties and conquests, which remained the
laws, treaties and conquests of England
after the restoration. The better opinion
is that acts done in obedience to this gov
eminent could not justly be regarded as
reasonable, though In hostility to the king
de jttre. Such acts were protected from
criminal prosecution by the spirit, if not
the letter, of the statute of Henry the
Seventh. It was held otherwise by the
Judges by whom Sir Henry Vane was tried
for treason Is State Trials, 119) in the year
following the restoration. But such q
Judgment in such time has little authority.
It is very certain that the Confederate
government was never acknowledged by
the United States as de fdet0 government
in this sense, nor was it acknowledged as
such by powers. No treaties were made
by it, No obligations of national charac-
ter created by it were binding, after its
dissolution, on the States which it repre-
scented or on the national government.
From very early period of the war to its
close it was regarded as simply the militia
ny representative of the insurrection against
the authority of the United States.
But there is another description of gov
eminent, called by pubhcists government
de faeto, but which might, perhaps, be
more aptly denominated government of
paramount force. Its distinguishing char
acters are ~ that its existence is main
tanned by active military power within the
territories and against the rghtful authori-
ty for established and lawful government;
and (2) that while it exists it must neces-
sarily be obeyed IN civil matters by private
citizens who, by acts Of obedience rem
dered in submission to such force, do not
become responsible as wrongdoers for
these acts, though not warranted by the
laws of the rightful government. Actual
governments of this sort are established
over districts differing greatly in extent
and conditions, they are usually admins
tered directly by military authority; but
they NAV be administered also by civil au-
forty, supported more or less by military
force.
One example Of this sort of government
is found in the case Of Castine, in Maine,
reduced to a British possession (the war of
1872. From the LIST of September, 1914,
to the ratification of the treaty of peace in
1915. according to the Judgment of the
court, in the United States Us Rice a
Wheat, 253l. ''the British government ex-
6ECISGu I'LL civil anu dltuOlAll ONCA
the place. The authority of the United
States over the territory was suspended,
and the laws Of the United States could no
longer be rightfully enforced there, or be
obligatory upon the inhabitants who re-
manned and submitted to the conqueror.
By the surrender the inhabitants passed IN
der temporary allegiance to the British
government, and were bound by such laws
and such only, as it chose to recognize and
impose. 1t is not to be inferred from this that
the obligations Of the people of Castine, as
citizens of the United States, were abroga-
ted. They were suspended merely by the
presence, and only during the presence, of
the paramount force. A like example is
found In the case Of Tampico, occupied
| during the war with Mexico by the troops
| of the United States. 1t was determined
by this court, Fleming as Page g How,
614), that although Tampico did not
become part Of the United States in con-
| sequence Of that occupation, still, having
come together with the whole State Of Ia
maulipas, of which it was part, into the
exclusive possession of the national forces,
| it must be regarded and respected by other
/ nations as the territory Of the United
States. These were cases of temporary
possession of territory by lawful and regu-
lar governments at war with the country,
of which the territory so possessed was
part The central government established
for the insurgent states differed from
the temporary governments at Cas-
tine and Tampico In the circum-
stance that its authority did not originate in
lawful acts of regular war; but it was not
on that account less active or less supreme,
| and we think that it must be classed among
the governments Of which these are ex
amples 1t is to be observed that the right
and obligations of beligerent were con
ceded to it in its military character, yer.
soon after the war began, from motives Q
humanity and expediency, by the Unitet
States. The whole territory controlled b.
it was thereafter held to be enemys tern
tory, and the inhabitants of that territor7
were held in most respects for enemies
| To the extent, then, of actual supremacy
| however unlawfully gained, in all matter
of government within its military lines, tn,
power of the insurgent government canno
be questioned. That supremacy would no
Justify acts Ofhostility to the United States
How far it should excuse them must b
left to the lawful government upon the re
establishment Of its authority. But it mad
civil obedience to its authority not only
necessity but duty. Without such obedi
enee civil order was impossible. 1t was b,
this government exercising its powe
| through an immense territory that the Con
{ federate notes were issued early in tn
war, and these notes, in a short time
became almost exclusively the currene,
of the insurgent States As contracts IL
themselves, in the contingency Of sue
cessful revolution, these notes were null
ties, for except in that event there could b
| no payer. They bore, indeed, this eharac
| ter upon their face, for they were mad
: | PAYABLE only latter a ratification ola treat
: | of peace between the Confederate State
| and the United States of America" Will
, | the war lasted, however, they had certai
| contingent value, and were used as none
, | in nearly al. the business transactions {
, | many millions of people They must b
/ | regarded, therefore, as a currency impose
| on the community by irresistible force.
/ | seems to follow as a necessary consequence
! | from the actual supremacy of the insurger
. | government, as a belligerent, within tn
= | territory where it circulated, and the nece:
! sity of civil obedience on the part Of a
: | who remained in it, that this currenc
: must be regarded in the courts OF law /
q the same light as if it had been issued by
! foreign government temporarily oecupyIn
: a part of the territory of the United States
4 Contracts STIMULATING for payments In TIL
I currency cannot be regarded as made
a aid of the foreign invasion In the one cas-
: or of the domestic instruction in II
= | other They have no necessary relation
T the hostile government, whether invadi1
| or insurgent. They are transactions in Il
3 | ordinary course of civil society, an,
I though they may indirectly and +
| motely promote the ends of the unlay
? | ful government, are without blame, eXceI
t | when proved to have been entered int
r with actual intent to further the invasiC
: | or instruction. We cannot doubt tbs
# such contracts should be enforced in Il
4 courts of the United States, after the +
; storation of peace, to the extent of the
n first obligation. The first question, Their
e fore, must receive an affirmative answe
/ The second question, whether eviden'
If can be received to prove that promi
? made in one of the insurgent States, al
" expressed to be for the payment of dollar
/ without qualifying words, was, IN fac
d made for the payment of any other, thi
AZ lawful dollars of the United States, is ne
| to be considered. 1t is quite clear that
i contract to pay dollars between citizens
g any State of the Union maintaining its CO
I stitutional relations with the national go
5. eminent is a contract to pay lawful mon
% of the United States, and cannot be MOD
is fed or explained by parole evidence. B
le it is equally clear, if any other count
" coins or notes denominated dollars shou
If be authorized of different value from t
al | coins or notes which are current here u
a. der that name, that in a suit upon a CO
D. tract to pay dollars made in that count
st evidence would be admitted to prove WI
le ! kind of dollars was intended; and, if
in should turn out that foreign dollars We
in meant, to prove their equivalent value