third alternative, which involved the restoration of the $35,000 paid in Confederate money or its equivalent.

The most fiercely unjust of all the alternatives was that insisted upon by the plaintiff: a recovery in lawful money of $10,000 and interest, upon what, in effect, was a contract to pay only $666.66 and interest. The third alternative would simply bring in a larger dose of the very difficulty sought to be evaded, since some disposition. must be made of the $35,000 paid in Confederate money. The fourth would inflict a loss upon the vendee of his payment in Confederate money,—the equivalent of $2,333.33 in lawful money. The second alternative would, in the particular case, not have involved great hardship. This was the rule applied during the war by the Court of Appeals of Kentucky in a similar case, which I then read but cannot now procure. The last alternative was the only one not working particular injustice, and was the one adopted by the Court, which allowed the circumstances surrounding the transaction to show that the word "dollars" meant Confederate money dollars, and gave to the plaintiff the equivalent of these in lawful money, with interest.

It may be said that no Confederate money consideration was here involved, since the consideration of the note in suit was land, a legitimate subject of contract; and that had the note been given for a loan of $10,000 in Confederate money, the judgment might have been different, the money loaned might have been regarded as an illegal and worthless currency. But I do not think that this case would have been substantially different. The Court, in effect, allowed parol testimony to add to the contract the words, "payable in Confederate money," and then allowed a recovery upon that obligation. This necessarily involved that Confederate money was a valuable consideration, and that a contract to pay Confederate money was not illegal under the circumstances.

And then, since there was no dissent from the reasoning of the Chief Justice, I think it fair to presume, at least that this did not jar upon the views of his associates; and this reasoning goes a long way to excuse the extreme holdings of such State judges as having taken part in the rebellion, naturally had impressed upon their minds the actuality for the time being of its governmental organization. Why did Judge Swayne, or Judge Miller, or Judge Davis, sit silent under such a proposition as that the temporary actual supremacy of the Confederate Government "made obedience to its authority in civil and local matters not only a necessity but a duty"? Or such lan

guage as this: "It seems to follow as a necessary consequence from this actual supremacy of the insurgent government as a belligerent within the territory where it (this money) circulated, and from the necessity of civil obedience on the part of all who remained in it, that this currency must be considered 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."

This has not the ring of the North Carolina decision of the Chief Justice, already quoted.

The Chief Justice places the Confederacy in the same category with the temporary British Government set up at Castine, in Maine, in 1814, in reference to which he quotes from United States vs. Rice, 4 Wheaton, 253: "The authority of the United States over the territory was suspended, and the laws of the United States could no longer be rightfully enforced there, 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 recognize and impose."

It is true that in the former part of the opinion, after referring to a de facto government, obedience whereto was not treason, though in hostility to the king de jure, he adds: that the Confederate Government was not such a government as this, and that it was always regarded "as simply the military representative of the insurrection against the authority of the United States. He also adds that the supremacy of the Confederate Government "did not justify acts of hostility to the United States," and that "how far it should excuse them must be left to the lawful government upon the re-establishment of its authority." But the following paragraph is a bane too potent for such antidotes:

"We have already seen that the people of the insurgent States 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 conditions 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 and enforced with reference to the

condition of things created by the acts of the governing power." Why not have merely said that the currency was imposed upon the inhabitants by irresistible force, and that, therefore, no fault was to be imputed to any one for taking it, and that it was thus made to have actual value, and that good faith and justice between man and man required that contracts should now be enforced with reference to the actual condition of affairs when they were made, however brought about; without any further attempt to logicalize in the matter?

The paragraph just quoted furnished Judge Turney with inspiration for his gunpowder decision in Bank of Tennessee vs. Cummings, Adm'r, being taken apart from its accompanying qualifications.

But to return to the subject of Confederate money: I take the fair meaning of the decision of the United States Supreme Court to be that Confederate money contracts are to be enforced upon the basis of the actual value of the money at the time of payment, with interest. And I think that this is justice, whether it is logic or not.

For cases where Confederate money transactions have been sustained, see Dearing's Adm'r vs. Rucker, 18 Grattan, 426; Lohman vs. Crouch, 19 Ib.; McGill vs. Manson, 20 Ib., 527; also 5 Bush, (Ky.) 271; Stalworth vs. Blum, 41 Ala., 319; Turley vs. Nowell, 1 Phillips, (N. C.,) Eq., 301; lb., 193; lb., 235; Abbott vs. Dermott, 34 Ga., 227; Freeman vs. Bass, 34 Ga., 355; Ib., 403; 1 Bush, 629; 41 Miss., 439; 18 Grattan, 703 and 708; 2 Bush, 398, etc., etc.

Respecting reconstruction, the winding up of the rebellion,―little need be said. In Texas vs. White, 7 Wallace, 700, an exposition of the subject will be found. The theory of the matter is that from the moment when the State governments assume an attitude of hostility to the Government of the United States they cease to be governments de jure, and become liable to have loyal ones substituted in their room by the action of the Government of the United States, under the clause in the Constitution by which the United States guaranty to every State a republican form of government. Until loyal government is re-established, the local government must be performed by the National authority, or by its appointees. When a loyal government has been formed, its recognition as the de jure State government by the Government of the United States, places the State in proper relations with that Government. In most of the seceeding States elections were held, under provisions of acts of Congress, for members of Conventions, to frame new State constitutions, to be submitted to Congress. In Tennessee, the National Agent,the Military Governor,-draughted certain constitutional amend

ments and submitted them directly to the people, at an election also regulated by him; and the government formed under the Constitution thus amended, was recognized by the Nation. The so-called Convention of 1865, cut no figure in the matter, except as advisers consulted by the National Agent,-the Military Governor. The same principles of reconstruction, however, obtained in Tennessee and in the other States. In all alike, a State constitution was adopted by the action of the people, voting at an election held under the authority of the United States, and according to regulations prescribed by that authority. The circumstance that in the other States Conventions were employed, was a difference of mere detail. In Tennessee the amendments to the Constitution were submitted directly to the people by the National authority. All that a legal Convention would have done, would have been to prepare what was as well prepared by the National Agent, with the advice of a concourse of leading men, embodying about as much wisdom as an actual Convention would have contained. The essence of the matter is the action of the people of the State in response to the initiation, emanating, in more or less detail, from the Nation, and the approval of that action by the latter.

The substance of the foregoing views is, that the United States is a composite State, and not a Confederation, the allegiance of the people in every State being due to the composite State, of which every State is only a member;-that the Southern movement was treason against the United States; that as soon as the rebellion had spread sufficiently, it became a civil war, with a line of territorial demarkation between the parties, all living south of the line being, in legal contemplation, enemies of all living north of it; that this war was attended, while it lasted, with all the incidents of war between independent nations; that the Government of the United States became possessed, through the exigencies of the case, of belligerent rights, as defined in public international law, under which view is to be explained much of the action of the Government which has been misunderstood because regarded only in reference to its ordinary sovereign or municipal powers, e. g., the Confiscation Acts, the Abandoned Property Act, etc.;-the war power of the Government comprehending the appointment by the Executive, of Military Governors of overrun districts in the enemy territory, who were lawfully empowered to exercise thereover all the necessary functions of government; that the concessions to the rebels during the war, of belligerent rights, compelled by their power, was merely in the interest of humanity, and had

reference only to their treatment during the war, and did not protect them from the legal consequences of treason after the war was over; that no rights could be originated by the action of the rebels, hostile to the Government, capable of outlasting the war; that the triumph of the Government established its view of the rebellion, under which view all its transactions, from first to last, must now be regarded; that contracts and obligations conceived in hostility to the United States during the war, and under rebel supremacy, must nevertheless now be held to have been void; that, nevertheless, Confederate money, being imposed upon the people by irresistible force, must be treated as a currency de facto, and contracts for, or with reference to, its payment enforced upon the basis of its actual value with interest; that the Confederacy was not a de facto government, being merely the military representative of rebellion, but that the rebel State governments, while they ceased to be rightful from the moment when they ceased to be loyal governments, yet were de facto governments, and their action valid where devoid of political significance, and such as might have emanated from a loyal government; that it devolved upon the Government of the United States, under the guaranty clause in the Constitution, to displace these de facto State governments, and take the initiative in the re-establishment of loyal republican government in the States, which has been done by submitting through National instrumentalities, and under National regulations, as to the qualifications of voters, manner of holding elections, etc., etc., opportunities of adopting plans of State re organization, which, when approved by Congress, should result in the re-adjustment of the States, respectively, to their normal relations to the Union.

Nashville, Tenn.

R. MCPHAIL SMITH.