Year: 1868

| rlty In several States,) would not be treason
here. --..


What effect, then, is to be given to acts


done under the authority of an insurgent


body, actually organized as q government,


and actually exercising the powers Of a
| government within large extent of terri
tory, not merely in hostility to the regular
! and lawful government, but in complete
| exclusion of If from the whole territory
| subject TO the insurgent control 2 1853
1t is not easy to give general answer to


this question. On the one hand it is clear


that none of its acts in hostility to the


regular government can be recognized as


lawful on the ether it is equally clear that
| transactions between individuals, which


would be legal and binding under ordinary
circumstances, cannot be pronounced illegal


and of no obligation because done in con-
formity with laws enacted or directions
given by the usurping power.


Between these extremes of lawful and


unlawful, there is largelvariety of trane-
! actions to which it is difficult to apply
strictly any general rule; but it may be
| safely said that transactions of the usurp-
| ing authority, prejudicial to the interests of
| citizens of other States excluded by the in
surrection and by the policy of the National
| Government from the care and oversight of
their own interests within the States in re-
6ellion, cannot be upheld in the courts of
| that government.


In the case before US, for example, Mrs.
Keppell was the undoubted pWner of three
hundred and four shares of the stock Of the
Petersburg Railroad Company, and was
| clearly entitled to her Just proportion of its
earnings. But she was denounced as an
alien enemy by the Confederate Govern
| ment. She was excluded from all control
Of her stock and all receipt of dividends.
And more than this, the stock was seques-


tered, or rather confscated, and partly


sold, and the dividends paid to the pur-


chasers, and to a person called q receiver,


appointed under the rebel. authority.
Can it be maintained that her right to
the dividends upon her stock was de.


feated by these transactions? We think
not. We cannot regard the Confederate
Government as a de facto government in
| my such sense that its acts are entitled to
judicial recognition as valid. On the con-
trary, we are obliged to regard it as COM


bination or unlawful confederacy organized
| for the overthrow of the National Govern
| ment, and its acts for the con6scation or
sequestration Of the private property Of the
citizens of the United States as null and
of no effect. The appointment of the


receiver, the sale Of the stock, the payment
Of the dividends, must all be regarded as
| part Of the process Of sequestration or con-
| fscation, and all as equally void.


But it is said, admitting the character of
! the Confederate Government, in view Of the
law to be such as has been stated, that the


company was compelled to pay the divi-
dends to the parties who received them, and
| by this compulsory payment was discharged
Of responsibility to the lawful proprietor of
| the stock.


This proposition asserts the exemption of
| the company from liability on the princi-


pie of Uis mdj0r-that there can be no re-
| sponsibility where the lose is occasioned by
| irresistible force. And it may be admitted
| that if the dividends belonging to Mrs. Keep
pell had been set apart to her specially,


and the money thus set apart had been


taken from the officers of the company


without consent on their part by the appli-


cation Of force, either actual or menaced,
under circumstances amounting to duress,
the loss must have been borne by her.
After such On appropriation of dividends,


the company would have become, perhaps,


the bailee of the stakeholder for her pro-


portion, and an excuse which would avail a


carrier for hire for non-delivery might ex-


cuse the company for non-payment.


But we cannot agree that this rule Is


fairly applicable to this case. 1t does not
appear that there was any setting apart OF
dividends, or that any force was actually
used or threatened. On the contrary, the


action of the company in employing their


railroad in the service Of the Confederate


Government, and the absence Of any pro-


test on the part of any of its officers against


the unlawful payment of the dividends, at-
ford reasonable inference that they were


not involuntary accessories to the whole ac-


ton of that government. No reasonable


application of the principle relied upon,
therefore, will excuse the company from
it's liability to its stockholders. And
public policy clearly requires the protec-
ton of stockholders in the loyal States from
any application of this principle not clearly


demanded by the law. Mrs. keppell was
deprived of the immediate security afforded


to her rights by the National Government


by the rebellion. 1t is the duty of that


government, since that rebellion is sup
pressed, to afford her, as far as practicable,


ultimate security. On the other hand, it is


the obvious dictate of sound policy that no


encouragement should be given to rebellion
by relieving parties within rebel control of


private responsibilities, except in very clear


cases of compulsory force, without their di-


rect or indirect consent. ft


We think the second claim of the COM


pany as to payment in Confederate notes


equally untenable. The liability of the


company to Mrs. Keppell for each dividend


accrued when it was declared. At that mo-


ment the company became debtor and the


stockholder creditor for the amount. 1t
may have been the fault Of neither that
payment was not then made. 1t was not
certainly the fault Of the stockholder. 1t
is no excuse to the company that the par
tieular currency in which its income was


received, and in which it's dividends were
paid to the stockholders, has since become


worthless. The dividends were declared in
dollars. The debt created by the dividend


to the stockholder was due in dollars.
And in dollars only can it now be dis
charged. ''.-'''


Bnt we are not more ready to say that it
must now be discharged by dollars OF


greater value than those in which it was
received than to say that it may be dis
charged by dollars of no value at all:


At the time several of the dividends were
declared the chief currency (and when the
others were declared, almost the entire cur
rency of that part of the country in which
the railroad was operated) was in Contede-
rate notes; and whatever currency of bank


notes there may have been in circulation


was of no greater real value. This cur
rency may fairly be said to have been i'm