Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1874-01-16
IMPORTANT SUPREME COURT DE.
CISION.
Bank of Tennessee VS.. Cummings, Ad.
ministrator.

Charged the jury dS IOllOWS.
'.If the officers of the Bank had notice
that the money was to be used by the de-
! PENDANT intestate in aid of the rebellion, as
| for the manufacture of one of the ingredi-
ents of cun-powder, and with a view and
for the purpose Of so aiding the rebellion
they advanced the money, then your verdict
should be for the defendant
This is an error, says Judge Turney. In
bloomington VS.. Smith, Wallace 1918,
the Supreme Court of the United States
says: "We have already seen that the peo-
pie of the insurgent States, under the Con-
| fedeTate Government were in legal contem-
platiOn, substantially in the same condition
as inhabitants of districts of country occu-
pied and controlled by an invading bellig-
erent. The rules which would apply in the
former case would apply in the latter, and
as in the former case, the people must be
regarded as subjects of a foreign power, and
contracts among them be interpreted and
| enforced with refernce to the conditions
imposed by the conqueror; SO in the latter
case, the inhabitants must be regarded as
under the authority of the insurgent bellig-
erent power, actually established asthe gov
eminent of the country, and contracts made
with them must be interpreted and enforced
with reference TO the condition of things
created by the acts of the governing pow
en-"
Now, what was the condition of things
created by the governing power, at the
making of the note in suit? 1t was, the
seeding States, including the State of
Tennessee, had by solemn acts of theirpeo-
| pie in convention, or by overwhelming
maiOrities at the ballot box, withdrawn
from the Federal union, organized gov
eminent under the name of the COnfed-
crate States of America, elected a President
and Congress, instituted and put in op-
Grafton all the departments of a national
government. Under its constitution, the
States in rebellion had re-organiZed their
several State governments, established
courts; in word, had done every thing
necessary to the perfection and performing
activity of civil government, and were
maintaining its power and authority by
arms.
The United States were unable to give
| TO those within the Confederate States who
adhered to the cause of the Union any as
| sistance, hence they were compelled TO LOOK
| to Confederate laws and authority for pro-
lection, and in return to yield submission
and obedience TO those laws and authority,
| Just as were the friends of secession within
| loyal States compelled to WELD obedience
to the laws of the United States. The one
was as much without RELIEF as the other,
| and the one government was as unable to
| give assistance to friends withinits enemy'S
| lines as the other.
Vattell, p. 81, says: "The State is
| obliged to defend and preserve all its MEM
| bers, and the prince owes the same assist
ance to his subjects. Ii, therefore, the
State or prince refuses or neglects 10 succOr
a body of people who are exposed to immi-
nent danger, the latter being thus abandon
| ed, become perfectly free to provide for
their own safety and preservation in what
ever manner they find most convenient,
without paying the least regard to those,
who by abandoning them, have been the
first to fail in their duty.
How could the people within the Con-
federate States provide for their safety and
preservation, except by obedience to and
compliance with the laws. Every act was
measured and determined by laws in an
tagonism to those of the United States, al
though in many instances the same Ian
guage was employed and the same end in
tended for its people, as in those of the
United States. Still they were adopted in
antagoniSm because adopted by States
/
were at war with it. Observation-Disclosures
was remedied by themselves, and the Uni
ted States were powerless to prevent or
hinder, leaving but one course to the citi-
zen, i. e., submission to the powers that
| were.
| Trying the case by these rules, interpre-
ting and enforcing the contract with refer
ence to the condition of things created by
the acts of the covering power, it results
the Confederate States and its constituent
members had the power and exercised it of
making laws for their own government,
and that of its citizens, that the citizen
had no escape from them. This contract
was made freely and voluntarily and was
lawful, interpreted with reference to the
condition of things at the time Of its crea-
ton which '.made," as Chief Justice Chase
says in the opinion already quoted, ''obedi-
ence to its authority in civil and local mat
tiers, not only a necessity but duty"
1t has been repeatedly held that the gov
eminent of the Confederate States was a
de fdctO government with beligerent
rights. In Smith VS.. BrazeltOn, Heiskel
46, Judge Nelson, a statesman and juriSt,
in whose opinion We see the hand Of a
master, said: "That although municipal
rights of sovereignty remained in the
United States during the late civil war, and
could be re-aSserted whenever and wher-
ever the government was successful in
arms, yet while the war was pending and
wherever the government was unable to as
sert its authority, the belligerent rights of
parties to the war were precisely the same,
and neither could lawfully assert any bel
ligerent right superior to or different from
the other"
1t must be conceded that it is a belliger.
ent right Of the first importance to use gun
powder; the right to use carries with it the
right to procure by purchase or manufac
ture, and in the manufacture the right tC
all the means in reach for its accomplish
ment. Then if it was lawful by the laws
/! of war for the State TO do these things, by
what rule is it unlawful for the citizen &c
contribute to the lawful act of his State.
The State as a State cannot manufacture
powder, but must do il through employee;
or persons, individual constituents Of the
arg5rera;e composing the State. \ Stat,
having a right may employ all the means
necessary to the employment Of that right
and it is a sOlecism to say that the State may
lawfully have thing, but may not law
fully engage It's citizens to create that
thing, or that citizens may not voluntarily
. do so. There is no conflict between thi
holding and the case of Puryear, admins
traitor VS.. McGayOck ct ais, manuscript
opinion of Judge Deaderick, as the trans
; action in that case was in April, 1861, be
/, fore action was taken by the State in tin
.. matter of separation. Reverse the judg
ment.
Col. GORDON, who has accepted from
, the khedive the leadership Of scientifi