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Decision of the Supreme Court of Tennessee that the Confederacy was de jure as well as de facto-opinion of Judge Turney.
The following decision is worthy of a place in our records not only because of the importance of the principles involved, but also on account of the ability with which the learned jurist maintains his positions.
It will not detract from the value of the decision, in the eyes of
any right-thinking man, if we add that
Judge Turney was a skillful and gallant Confederate soldier, and was desperately wounded at
Fredericksburg:
The bank of Tennessee v. Wm. B. Cummings, Adm'r.
Statement.-It appears of record that in the Autumn of 1861,
Plumley, defendant's intestate, petitioned the Branch Bank of
Tennessee at
Sparta to discount his note for $500,--alleging that he had contracted with the
Nitre and Mining Bureau at
Nashville to make and furnish saltpetre to “The
Confederate States of America.”
At that time, the Bank was discounting but little:--but, because of the purpose for which the loan was designed, it was allowed.
The money was faithfully appropriated to the design for which it was granted; and, by reason of the loan,
Plumley was enabled to make and ship large quantities of saltpetre to
Richmond and other points, which was used by the
Confederate authorities in the manufacture of gunpowder.
Suit was instituted on the note, and the defence relied on was, that the money was loaned and borrowed with the intent of aiding the
Confederate States in the war then flagrant with the
United States.
1.
Governmental Law-The Confederate States of America-A Government de jure.-The Government of “The
Confederate States of America” was organized and called into real active existence in the most solumn and formal mode; and was an integral, independent government, complete in its several departments — was clothed with all the powers and discharged all the functions incident to a Sovereign State.
In common with its constituent members, it had the power, and exercised it, of making laws for its own government and that of its citizens.
2.
Same.-Allegiance-juris et de jure.-Obedience to its authority in civil and local matters was not only a necessity, but a duty.
Cited: Thorrington v.
Smith, 8
Wallace, 12-13; Vattel, 97.
3.
International Law.-Belligerent Rights.-Gunpowder.-The use of gunpowder is a belligerent right of primal importance:--the right to use carries with it the right to purchase or manufacture, and in the manufacture the right to the means requisite for its achievement.
Case cited: Smith v.
Brazleton, 1 Heis., 46.
4.
State.-Right.-A State having a right may employ the means necessary for its perfection and enjoyment, and to this end may engage its citizens, or they may voluntarily contribute to it.
5.
Case at Bar.-In the present case the contract was freely and voluntarily entered into, and was, therefore, legal and binding.
Appeal in error from the judgment of the Circuit Court, October term, 1869.
William P. Hickerson, J.
W. E. B. Jones,
Rowan &
Wommack, for appellant;
John H. Savage, for appellee.
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Turney, J., delivered the opinion of the
Court.
The circuit judge charged the jury: “If the officers of the Bank had notice that the money was to be used by the defendant's intestate in. aid of the Southern Confederacy, as for the manufacture of one of the ingredients of gunpowder, and with a view and for the purpose of so aiding the
Confederacy they advanced the money, then your verdict should be for the defendant.”
This is error.
In Thorrington v.
Smith, 8
Wallace, 12-13, the Supreme Court of the
United States say: “We have already seen that the people of the insurgent States, under the Confederate Government, were in legal contemplation substantially in the same condition as inhabitants of districts of country occupied and controlled by an invading belligerent.
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 reference to the conditions imposed by the conqueror; so in the latter case, the inhabitants must be regarded as under the authority of the insurgent beligerent power, actually established as the government 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 power.”
Now, what was “
the condition of things created by the acts of the governing power,” at the making of the note in suit?
It was, the seceding States, including the
State of Tennessee, had by the solemn acts of their
peoples in convention assembled, or by overwhelming majorities at the ballot box, withdrawn from the
Union, and organized and called into real active existence an integral, independent Government,--under the name of “
The Confederate States of America,” --complete in its several deepartments, clothed with all the powers, and discharging all the functions incident to a
Sovereign State. Under its
Constitution, which had been formally and enthusiastically adopted, without appreciable dissent, by a tremendous popular vote, the seceding States had reorganized their Governments,--elected their governors and legislators, and established their courts,--and had achieved every act necessary to the perfection and successful administration of a civil government, and were maintaining its supremacy and asserting its authority by arms.
The United States Government was unable to give to those within the
Confederate States Government who adhered to the cause of the
Union any assistance, hence they were compelled to look to the
Confederate laws and authority for protection, and in return to yield submission and obedience to those laws and authority.
Just so were the friends of secession within the loyal States compelled to yield 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 its friends within the enemy's lines as was the other.
Vattel, p. 97, says: “The State is obliged to defend and preserve all its members, and the
Prince owes the same assistance to his subjects.
If, therefore,
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the
State or
Prince refuse or neglect to succor a body of people who are exposed to imminent danger, the latter being thus abandoned, become perfectly free to provide for their own safety and preservation in whatever 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
Confederate 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 antagonism to those of the
United States, although in many instances the same language was employed and the same end intended for its people, as for those of the
United States.
Still they were adopted in antagonism,. because adopted by States which had withdrawn from the
Union and were at war with it. Their non-observance was remedied by themselves, and the
United States were powerless to prevent or hinder,--leaving but one course to the citizen, i. e., submission to
the powers that were.
Trying the case by this rule, “
interpreting and enforcing the contract with reference to the condition of things created by the acts of the governing power,” it results that the
Government of “
The Confederate States of America” 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 :--that this contract was made freely and voluntarily, and was lawful,--“
interpreted with reference to the condition of things” at the time of its creation; which “
made,” as
Chief Justice Chase says in the opinion already quoted, “
obedience to its authority in civil and local matters, not only a necessity, but a duty.”
It has been repeatedly held that the
Government of the
Confederate States was a government
de facto, with belligerent rights.
In Smith v.
Brazleton, 1 Heis., 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 reasserted whenever and wherever the
Government was successful in arms, yet while the war was pending and wherever the
Government was unable to assert its authority, the belligerent rights of the parties to the war were precisely the same, and neither could lawfully assert any belligerent right superior to or different from the other.”
It must be conceded that it is a belligerent right of the first importance to use gunpowder; the right to use carries with it the right to procure by purchase or manufacture, and in the manufacture the right to all the means in reach for its accomplishment.
Then if it was lawful for the
State to do these things, by what rule is it unlawful for the citizen to contribute to the lawful act of his State?
The State, as a State, cannot manufacture powder, but must do it through employees or persons,--individual constituents of the aggregate composing the
State.
A State having a right may employ all the means necessary to the enjoyment of that right, and it is a gross solecism to say that the
State may lawfully
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have a thing, but may not lawfully engage its citizens to createthat thing, or that its citizens may not
voluntarily do so.
There is no conflict of opinion between this holding and the case of
Puryear, adm'r, v.
McGavock et als., manuscript opinion by
Judge Deaderick, as the transaction in that case was in April, 1861, before action was taken by the
State in the matter of separation.
Reverse the judgment.
Note.-The opinion above was delivered at
Nashville, December term, 1872, and introduced here as conclusive of the numerous cases, still pending in the courts of the
State, involving the principles it determines.
It was recently reaffirmed, without a written opinion, in the case of The Union Bank of
Tennessee v.
Alexander Pattison, at
Jackson, September term, 1876.-J. C. M.
