Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-11-10
CONFEDERATE NOTES.
Thslr Status as Affecting Contracts, After
the War.
important Decision by The United States
Supreme Court

on Monday:
No. ll2. TbOriRg5oR rs. SiaM
Hdrtleg.-Opinion of the Court by
Chief Justice Chase.-This is a bill il
equity for the enforcement of ven
der's lien. 1t isnOt denied that Smith
& Hartley purchased ThOringtOn'S
land, or that they executed TO him
their prOmissOry note for part of the
purchase money, rs set forth in his
bill, OF that, if there was nothing more
in the case, he would be entitled TO q
decree for the amount Of the note and
interest, and for the sale of the land
10 satisfy the debt. But it is insisted
by the way of defense that the negO-
tiation for the purchase Of the land
took place, and that the note in con-
troversy, payable one day after date,
was made at Montgomery, in the
State of Alabama, where all the par
ties resided in November, 1864, al
which time the authority Ofthe United
States was excluded from that portion
of the state, and the only currency in
nse consisted of Confederate Treasury
notes, issued ard put into circulation
by persons exercising the ruling power
OF the States IN rebellion, known as
the Confederate Government.
It was also insisted that the land
purchased wac worth no more than
three thousand dollars in lawful
money; that the contract price was
forty-five thousand dollars; that this
price. BY the agreement Of the parties,
was to be paid in Confederate notes
that thirty-five thousand dollars were
actually psid IN these notes, and that
.9.Sr- f.a- Hlan raranninfr0p
thousand dollars was TO be discharged
in the same manner, and it is claimed
on this state of fict5 that the vender
is entitled to no relief in court of
the United States, and this claim was
sustained in the court below and the
bill was dismissed.
The quesi ions before us on appeal
are these: First, can a contract for
the payment of Confederate notes
made during the late rebellion be-
tween parties residing within the So
called Confederate States be enforced
at all in the courts of the United
States? second, can evidence be re-
eeiyed to yFGYe that a promise eN-
pressed To be for the payment OF dol
lars was in fact, and for the payment
OF any other than lawful dollars of the
4 ulLNAA EoAaANf-a AltE- AAaC 6N AAANuIG IL
the record establish the fact that the
note for $1,000 was to be paid by
agreement of The parties in COnfeder-
aIe notes?
The first question l. BY no means
free from difficulty. 1t can not be
questioned that the Confederate notes
srere issued in futherance Of an unlaw-
fuI attempt 10 overthrow the Govern
+ Q 4 H.
TecuiOnaTy force; nor is ii doubtful
principle of law that no contract made
in aid OF such an attempt can be en-
forced through the courts of the cOun-
try whose Government is thus aSsail-
ed. But was the contract of the par
ties 10 this suit ac0ntract Ofthat char
acter? Can il be fairly described as a
contract in aid Of the rebellion? in
examining this question the state of
that part Of the country i'm which il
was made must be considered. 1t is
familiar history that early in 1861 the
authorities Of seven States, support
ed. as was alleged, by popular majOri-
Ties, combined for the overthrow of
the National Union, and for the estab-
sishment, within its boundaries, OF a
separate and Independent cOnfedera-
zion. / governmental organization,
representing these States, was estab-
iished at Montgomery, in Alabama,
first under 4 provisional constitution,
and afterWaTu under constitution in
tended to be permanent. In the
cOIrse Of few months four other
States acceded 10 this confederation,
and the seat Of the central authority
was transferred to Richmond, in Eir-
ginia. 1t Was by the central authOri-
Iy thus organized, and under its di-
recti0n that the civil war carried on
upon vast scale against the Govern
ment Of the United States for more
than four years. Its power was re-
cOgnized as supreme in nearly the
whole of the Territory Of the States
cOnfcderatcd. 1t was the actual Gov
erpment of all the insurgent States,
except those portions of them protect
ed froDl lis control by the presence Of
the armed forces of the National
Government. What was the precise
character of this Government in con-
temptation of law? IL is difficult to
divine ID with eXactnesS. Any deinl-
ton that may be given may not i'm
probably be found to require limita-
TiOn and qualification. But the gen
eraI principles OF Law relating to de
frcfO government VIII, we think, con-
duct Us to a conclusion sufficiently
accurate. There are several degrees
of what is called Ge fdctO government.
such \ government, in its highest de-
grees. assumes a character very closely
resembling that Of IA lawful govern
ment. This II when the usurping
government eXpelS the regular au-
thorihes from their customary seats
and functions, and establishes itself
in their place, aud so becomes The &C.
tual government of a country. The
distinguishing characteristic of such
a government il, that adherents TO 1t
in war against the government d2 jtue
do not incur the penalty OF treason;
and, under certain limitations, Obliga-
tions assumed by it in behalf Of the
country or otherwise will in general
be respected by the government de
j,ue when restored.
Examples of this description Of
government ds fdciO are found i'm
EnglisI. history. The statute II, Hen
~ VII, G. J, Brit. stat, at large,
relieves from penalties for treason all
persons who, in defense Of the King
for the time being, wage war against
those who endcayOr 10 subvert his
authority by force Of arms, though
warranted in 50 doing by the lawful
monarch. q Bi. Comm. ~ But this
is where the usurper obtains actual
possession of the royal authority Of
The Kingdoms; not when he has sue
CeSded only in establishing his power
over particular localities. Being lh
such possession, allegiance il due TO
him ~ King de f0ctO. Another eX-
ample may be found in the Govern
Inent of England under the Common
wealth, first by Parliament, and after
wa-d by Cromwell as Protector. 1t
was hOf in the cOntem PISTON of law a
government de jUre, but il was gov
ernmert d. 5qc'O in the absolute sense.
II made Laws, treaties and con-
quests, which remained the laws,
treaties and c0nqUests Of England
after the Restoration. The better
0piuion IS that arts done in obedience
10 this government could not be justly
regarded a. reasonable, though in
hostility to the King de jLS-e. Such
acts were protected from criminal
prosecution by the spirit, if not the
Letter, of the statute of Henry VII. !
~ vs. held otherwise by the Judges |
hv whom Sir Henry Kane was tried !
for Treason. (G State trials, il9,) in the
wears following the Restoration. But
such a judgment in such time has
little authority.
4 is very certain that the COnfede-
rate Government was never aeKBOWl- |
edged by the United States as dc
fqc,0 government in this sense, nor
,vas it acknowledged as such by pow |
ers. No treaties were made by il. |
No OBLIGATIONS OF national character
created by IL were binding, after its
dissolution, on the States which it rep
resented. or on the national Govern
ment. From a very early period of
the civil war 20 its close if was regard
ed az simply the military representa-
tive of the insurrectiOn against the
authority Of the United States.
feut there is another description of
goyerrment, called by publicists
Sovernn ent de- factO, but which might,
1erhaps. be more aptly denomiHated
a government of paramount force.
Its distinguishing characters, are,
first. that its existence is maintained
by active military power within the
territories against the rightfnl authorl-
ty of an established and lawful gov
eminent: and, second, that while II
exists ii must necessarily be Obeyed !
in civil matters by private citizens, |
NVhO bV acts of QbfFtigunp rendered /