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confederation, and the seat of the central authority was transferred to Richmond, in Virginia.
It was by the central authority thus organized, and under its direction, that the civil war was carried on upon a vast scale against the government of the United States for more than four years. Its power was recognised as supreme in nearly the whole of the territory of the states confederated. It was the actual government of all the insurgent states, except those portions of them protected from its control by the presence of the armed forces of the national government.
What was the precise character of this government in contemplation of law? It is difficult to define it with exactness. Any definition that may be given may not improbably be found to require limitation and qualification. But the general principles of law relating to de facto governments will, we think, conduct us to a conclusion sufficiently accurate.
There are several degrees of what is called de facto government. Such a government, in its highest degree, assumes a character very closely resembling that of a lawful government. This is when the usurping government expels the regular authorities from their customary seats and functions, and establishes itself in their place, and so becomes the actual government of a country.
The distinguishing characteristic of such a government is that the adherents to it in war against the government de jure do not incur the penalties of treason, and, under certain limitations, obligations assumed by it in behalf of the country, or otherwise, will in general be respected by the government de jure when restored.
Examples of this description of government de facto are found in English history. The statute 11 Henry VII., c. 1 (Brit. Stat. at Large), releases from penalties for treason all persons who, in defence of the king for the time being, wage war against those who endeavor to subvert his authority by force of arms, though warranted in so doing by the lawful monarch: 4 Bl. Com. 77.
But this is where the usurper obtains actual possession of the royal authority of the kingdom; not where he has succeeded only in establishing his power over particular localities. Being in such possession, allegiance is due to him as king de facto.
Another example may be found in the government of England under the Commonwealth, first by Parliament, and afterwards by
Cromwell as Protector. It was not, in the contemplation of law, a government de jure, but it was a government de facto in the most absolute sense.
It 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 government could not be justly regarded as treasonable, though in hostility to the king de jure. Such acts were protected from criminal prosecution by the spirit, if not the letter, of the statute of IIenry VII. It was held otherwise by the judges by whom Sir Henry Vane was tried for treason (6 State Trials 119), in the year following the restoration. But such a judgment, in such a time, has little authority.
It is very certain that the Confederate governinent was never acknowledged by the United States as a de facto government in this sense.
Nor was it acknowledged as such by other powers. No treaties were made by it. No obligations of a national character were created by it binding, after its dissolution, on the states which it represented, or on the national government. From a very early period of the civil war to its close it was regarded as simply the military representative of the insurrection against the authority of the United States.
But there is another description of government called also by publicists. a government de facto, but which might, perhaps, be more aptly denominated a government of paramount force. Its distinguishing characteristics are: First, that its existence is maintained by active military power within the territories and against the rightful authority of an established and lawful government; and second, that while it exists, it must necessarily be obeyed in civil matters by private citizens, who, by acts of obedience rendered 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 administered directly by military authority, but they may be administered also by civil authority, supported more or less directly by military force.
One example of this sort of government is found in the case of Castine, in Maine, reduced to British possession during the war of 1812. From the 1st of September 1814 to the ratification of the treaty of peace in 1815, according to the judgment of the
court in United States v. Rice, 4 Wheat. 253, “the British government exercised all civil and military authority over 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 therė, or be obligatory upon the inhabitants who remained and submitted to the conqueror. By the surrender the inhabitants passed under a temporary allegiance to the British government, and were bound by such laws, and such only, as it chose to recognise and impose.”
It is not to be inferred from this that the obligations of the people of Castine, as citizens of the United States, were abrogated. 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. It was determined by this court in Fleming v. Page, 9 How. 614, that although Tampico did not become a part of the United States in consequence of that occupation, still, having come together with the whole state of Tamaulipas, 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.
There were cases of temporary possession of territory by lawful and regular 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 Castine and Tampico, in the circumstance that its authority did not originate lawful acts of regular war; but it was not on that account less actual or less supreme, and we think that it must be classed among the governments of which these are examples. It is to be observed that the rights and obligations of a belligerent were conceded to it in its military character, very soon after the war began, from motives of humanity and expediency, by the United States. The whole territory controlled by it was thereafter held to be enemy's territory, and the inhabitants of that territory were held in most respects for enemies. To the extent then of actual supremacy, however unlawfully gained, in all matters of government within its military lines, the power of the insurgent government cannot be questioned.
That supremacy would not justify acts of hostility to the
United States. How far it should excuse taem must be left to the lawful government upon the re-establishment of its authority. But it made civil obedience to its authority not only a necessity but a duty. Without such obedience civil order was impossible.
It was by this government exercising its power through an immense territory that the Confederate notes were issued early in the war; and these notes in a short time became almost exclusively the currency of the insurgent states.
As contracts in themselves, in the contingency of successful revolution, these notes were nullities; for except in that event there could be no payer. They bore indeed this character upon their face, for they were made payable only “after the ratification of a treaty of peace between the Confederate States and the United States of America."
While the war lasted, however, they had a certain contingent value, and were used as money in nearly all the business transactions of many millions of people. They must be regarded, therefore, as a currency imposed on the community by irresistible force.
It seems to follow as a necessary consequence from the actual supremacy of the insurgent government, as a belligerent, within the territory where it circulated, and the necessity of civil obedience on the part of all who remained in it, that this currency must be regarded in courts of law in the same light as if it had been issued by a foreign government, temporarily occupying a part of the territory of the United States.
Contracts stipulating for payments in that currency cannot be regarded as made in aid of the foreign invasion in the one case, or of the domestic insurrection in the other. They have no necessary relation to the hostile government, whether invading or insurgent. They are transactions in the ordinary course of civil society, and, though they may indirectly and remotely promote the ends of the unlawful government, are without blame, except when proved to have been entered into with actual intent to further the invasion or insurrection.
We cannot doubt that such contracts should be enforced in the courts of the United States, after the restoration of peace, to the extent of their just obligation.
The first question, therefore, must receive an affirmative answer.
The second question, whether evidence can be received to prove that a promise made in one of the insurgent states, and expressed to be for the payment of dollars, without qualifying words, was, in fact, made for the payment of any other than lawful dollars of the United States, is next to be considered.
It is quite clear that a contract to pay dollars, made between citizens of any state of the Union maintaining its constitutional relations with the national government, is a contract to pay lawful money of the United States, and cannot be modified or explained by parol evidence.
But it is equally clear if in any other country coins or notes denominated dollars should be authorized of different value from the coins or notes which are current here under that name, that in a suit upon a contract to pay dollars, made in that country, evidence would be admitted to prove what kind of dollars were intended, and if it should turn out that foreign dollars were meant, to prove their equivalent value in lawful money of the United States.
Such evidence does not modify or alter the contract. It simply explains an ambiguity which, under the general rules of evidence, may be removed by parol evidence.
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 a 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 laws imposed by the conqueror, so in the latter case the inhabitants must be regarded as under the authority of the insurgent belligerent power actually established as the government of the country; and contracts made with them must be interpreted aud inferred with reference to the condition of things created by the acts of the governing power.
It is said, indeed, that under the insurgent government the word “dollar" had the same meaning as under the government of the United States; that the Confederate notes were never made a legal tender; and, therefore, that no evidence can be received to show any other meaning of the word when used in a contract.