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PART V.

POLITICAL MANUAL FOR 1870.

L.

MEMBERS OF THE CABINET OF PRESIDENT GRANT,

AND OF THE FORTY-FIRST CONGRESS, SECOND SESSION.

PRESIDENT GRANT'S CABINET.

Secretary of State-HAMILTON FISH, of New York.

Secretary of the Treasury-GEORGE S. BOUTWELL, of Massachusetts.

Secretary of War-WM. W. BELKNAP, of Iowa.* Secretary of the Navy-GEORGE M. ROBESON, of New Jersey.

Secretary of the Interior-JACOB D. Cox, of Ohio. Postmaster General-JOHN A. J. CRESWELL, of Maryland.

Attorney General-Aмos T. AKERMAN, of Georgia.

MEMBERS OF THE FORTY-FIRST CONGRESS. Second Session, December 6, 1869-July 15, 1870.

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Virginia-John W. Johnston, John F. Lewis. North Carolina-John C. Abbott, John Pool.

* Qualified October 18, 1869, in place of John A. Rawlins, deceased September 6, 1869.

Qualified July 8, 1870, in place of E. R. Hoar, resigned. Qualified December 6, 1869, in place of William Pitt Fessenden, deceased.

?Mr. Lewis qualified January 27, 1870; Mr. Johnston, January 28.

South Carolina-Thomas J. Robertson, Frederick
A. Sawyer.

Georgia.-Not represented.
Alabama-Willard Warner, George E. Spencer.
Mississippi*-Hiram R. Revels, Adelbert Ames.
Louisiana-John S. Harris, William P. Kellogg.
Ohio-John Sherman, Allen G. Thurman.
Kentucky-Thomas C. McCreery, Garrett Davis.
Tennessee-Joseph S. Fowler, William G. Brown-
low.

Indiana-Oliver P. Morton, Daniel D. Pratt.
Illinois-Richard Yates, Lyman Trumbull.
Missouri-Charles D. Drake, Carl Schurz.
Arkansas-Alexander McDonald, Benjamin F.

Rice.

Michigan-Jacob M. Howard, Zachariah Chandler.

Florida-Thomas W. Osborn, Abijah Gilbert. Texast-Morgan C. Hamilton, James W. FlaniIowa-James B. Howell, James Harlan. gan. Wisconsin-Timothy O. Howe, Matthew H. Carpenter.

California-Cornelius Cole, Eugene Casserly. Minnesota-Daniel S. Norton, & Alex'r Ramsey. Oregon-George H. Williams, Henry W. Corbett. Kansas-Edmund G. Ross, Samuel C. Pomeroy. West Virginia-Waitman T. Willey, Arthur I.

Boreman.

Nevada-James W. Nye, William M. Stewart. Nebraska-John M. Thayer, Thomas W. Tipton.

House of Representatives. JAMES G. BLAINE, of Maine, Speaker. Edward McPherson, of Pennsylvania, Clerk. Maine-John Lynch, Samuel P. Morrill, James G. Blaine, John A. Peters, Eugene Hale. New Hampshire-Jacob H. Ela, Aaron F. Stevens, Jacob Benton.

Vermont-Charles W. Willard, Luke P. Poland, Worthington C. Smith.

Massachusetts-James Buffinton, Oakes Ames,

*Mr. Revels qualified February 25, 1870; Mr. Ames, April 1, 1870.

Qualified March 31, 1870.

Qualified January 26, 1870, in place of James W Grimes, resigned.

Died July 14, 1870.

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Ginery Twichell, Samuel Hooper, Benjamin F. Butler, Nathaniel P. Banks, George M. Brooks,* George F. Hoar, William B. Washburn, Henry L. Dawes.

Rhode Island-Thomas A. Jenckes, Nathan F. Dixon.

Connecticut-Julius L. Strong, Stephen W. Kellogg, Henry H. Starkweather, William H. Barnum.†

New York-Henry A. Reeves, John G. Schumaker, Henry W. Slocum, John Fox, John Morrissey, Samuel S. Cox,† Hervey C. Calkin, James Brooks, Fernando Wood, Clarkson N. Potter, Charles H. Van Wyck, John H. Ketcham, John A. Griswold, Stephen L. Mayham, Adolphus H. Tanner, Orange Ferriss, William A. Wheeler, Stephen Sanford, Charles Knapp, Addison H. Laflin, Alexander H. Bailey, John C. Churchill, Dennis McCarthy, George W. Cowles, William H. Kelsey, Giles W. Hotchkiss, Hamilton Ward, Noah Davis, John Fisher, David S. Bennett, Porter Sheldon.

New Jersey-William Moore, Charles Haight, John T. Bird, John Hill, Orestes Cleveland. Pennsylvania?-Samuel J. Randall, Charles O'Neill, Leonard Myers, William D. Kelley, Caleb N. Taylor, John D. Stiles, Washington Townsend, J. Lawrence Getz, Oliver J. Dickey, Henry L. Cake, Daniel M. Van Auken, George W. Woodward, Ulysses Mercur, John B. Packer, Richard J. Haldeman, John Cessna, Daniel J. Morrell, William H. Armstrong, Glenni W. Scofield, Calvin W. Gilfillan, John Covode, James S. Negley, Darwin Phelps, Joseph B. Donley. Delaware-Benjamin T. Biggs.

Maryland-Samuel Hambleton, Stevenson Arch-
er, Thomas Swann, Patrick Hamill, Frederick
Stone.
Virginia-Richard S. Ayer, James H. Platt, jr.,
Charles H. Porter, George W. Booker, Robert
Ridgway, William Milnes, jr., Lewis McKen-
zie, James K. Gibson.

North Carolina¶-Clinton L. Cobb, (vacancy,)
Oliver H. Dockery, (vacancy,) Israel G. Lash,
Francis E. Shober, Alexander H. Jones.
South Carolina**—(Vacancy,) C. C. Bowen, Solo-
mon L. Hoge, Alexander S. Wallace.
Georgia-Not represented.

Alabamatt-Alfred E. Buck, Charles W. Buckley, Robert S. Heflin, Charles Hays, Peter M. Dox, William C. Sherrod.

Mississippi-George E. Harris, J. L. Morphis,

* Qualified December 6, 1869, in place of George S. Boutwell, resigned.

† Qualified December 6, 1869.

Qualified February 17, 1870, in place of George W. Greene, unseated February 16-yeas 120, nays 59.

Mr. Covode qualified February 9, 1870. Mr. Taylor, April 13, 1870, in place of John R. Reading, unseatedyeas 112, nays 46.

Messrs. Platt, Ridgway, Milnes, and Porter qualified January 27, 1870; Mr Gibson, January 28; Messrs. Ayer and McKenzie, January 31; Mr. Booker, February 1.

John T. Deweese resigned February 28, 1870. Mr. Shober qualified April 13, 1870. David Heaton died June 25, 1870.

**B. F. Whittemore resigned February 24, 1870; reelected, and, June 21, refused admittance by a vote of 130 to 24. Mr Wallace qualified May 27, 1870.

Messrs. Buck and Buckley qualified December 6, 1869. Messrs. Dox, Hays, Sherrod, and Heflin, December 7.

Messrs. Harris, Morphis, McKee, and Perce, qualified February 23, 1870. Mr. Barry, April 8.

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Henry W. Barry, George C. McKee, Legrand W. Perce.

Louisiana *-(Vacancy,) Lionel A. Sheldon, C. B. Darrall, Joseph P. Newsham (vacancy.) Ohio-Peter W. Strader, Job E. Stevenson, Robert C. Schenck, William Lawrence, William Mungen, John A. Smith, James J. Winans, John Beatty, Edward F. Dickinson, Erasmus D. Peck, John T. Wilson, Philadelph Van Trump, George W. Morgan, Martin Welker, Eliakim H. Moore, John A. Bingham, Jacob A. Ambler, William H. Upson, James A. Garfield.

Kentucky-Lawrence S. Trimble, William N. Sweeny, Joseph H. Lewis, J. Proctor Knott, Boyd Winchester, Thomas L. Jones, James B. Beck, George M. Adams, John M. Rice. Tennessee-Roderick R. Butler, Horace Maynard, William B. Stokes, Lewis Tillman, William F. Prosser, Samuel M. Arnell, Isaac R. Hawkins, William J. Smith.

Indiana-William E. Niblack, Michael C. Kerr, William S. Holman, George W. Julian, John Coburn, Daniel W. Voorhees, Godlove S. Orth, James N. Tyner, John P. C. Shanks, William Williams, Jasper Packard.

Illinois-Norman B. Judd, John F. Farnsworth, Horatio C. Burchard, John B. Hawley, Ebon C. Ingersoll, Burton C. Cook, Jesse H. Moore, Shelby M. Cullom, Thompson W. McNeely, Albert G. Burr, Samuel S. Marshall, John B. Hay, John M. Crebs, John A. Logan. Missouri-Erastus Wells, Gustavus A. Finkelnburg, James R. McCormick, Sempronius H. Boyd, Samuel S. Burdett, Robert T. Van Horn, Joel F. Asper, John F. Benjamin, David P. Dyer.

Arkansas-Logan H. Roots, Anthony A. C. Rogers, Thomas Boles.

Michigan-Fernando C. Beaman, William L. Stoughton, Austin Blair, Thomas W. Ferry, Omar D. Conger, Randolph Strickland. Florida-Charles M. Hamilton.

Texas ||-G. W. Whitmore, John C. Conner, W. T. Clark, Edward Degener.

Iowa-George W. McCrary, William Smyth, William B. Allison, William Loughridge, Frank W. Palmer, Charles Pomeroy. Wisconsin-Halbert E. Paine, David Atwood, T Amasa Cobb, Charles A. Eldridge, Philetus Sawyer, Cadwalader C. Washburn.

California Samuel B. Axtell, Aaron A. Sargent,
James A. Johnson.

Minnesota-Morton S. Wilkinson, Eugene M.
Wilson.
Oregon-Joseph S. Smith.
Kansas-Sidney Clarke.

West Virginia-Isaac H. Duval, James C. Mc-
Grew, John S. Witcher.
Nevada-Thomas Fitch.
Nebraska-John Taffe.

* Mr. Newsham admitted May 21, 1870-yeas 79, nays 71; qualified May 23. Mr. Darrall admitted July 6, 1870-yeas 96, nays 77; qualified same day.

+Qualified April 23, 1870, in place of Truman H. Hoag, deceased.

Mr. Golladay resigned February 28, 1870. Mr. Lewis qualified as his successor May 10, 1870. Qualified December 6, 1869, in place of E. B. Washburne, resigned.

Qualified March 31, 1870.

Qualified February 23, 1870, in place of Benjamin F. Hopkins, deceased.

LI.

JUDICIAL DECISIONS.

SUPREME COURT OF THE UNITED STATES.

On the Validity of Contracts in Confederate

Thorington

vs.

Smith.

Money.

DECEMBER TERM, 1868.

tion. 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 govern

Appeal from the district court for the ment in contemplation of law?

middle district of Alabama.

The Chief Justice delivered the opinion of the

court.

The questions before us upon this appeal are

these:

(1.) Can a contract for the payment of Confederate notes, made during the late rebellion, between parties residing within the so-called Confederate States, be enforced at all in the courts of the United States?

It is difficult to define it with exactness. Any bly be found to require limitation and qualifica definition that may be given may not improbation. But the general principles of law relating to de facto government 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 usurp(2.) Can evidence be received to prove that a promise expressed to be for the payment of dol-ing government expels the regular authorities lars was, in fact, made for the payment of any other than lawful dollars of the United States? (3.) Does the evidence in the record establish the fact that the note for the thousand dollars was to be paid, by agreement of the parties, in

Confederate notes?

The first question is by no means free from difficulty. It cannot be questioned that the Confederate notes were issued in furtherance of an unlawful attempt to overthrow the Government of the United States by insurrectionary force. Nor is it a doubtful principle of law that no contracts made in aid of such an attempt can be enforced through the courts of the country whose government is thus assailed. But was the contract of the parties to this suit a contract of that character? Can it be fairly described as a contract in aid of the rebellion?

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 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.

de facto are found in English history. The statExamples of this description of government ute 11 Henry VII, c. 1, relieves from penalties for treason all persons who, in defense of the king, for the time being, wage war against those who endeavor to subvert his authority by force of ful monarch. But this is where the usurper arms, though warranted in so doing by the lawobtains actual possession of the royal authority of the kingdom, not when he has succeeded only in establishing his power over particular localities. Being in possession, allegiance is due to him as king de facto.

In examining this question, the state of that part of the country in which it was made must be considered. It is familiar history, that early in 1861 the authorities of seven States, supported, as was alleged, by popular majorities, combined Another example may be found, in the gov for the overthrow of the national Union, and for the establishment within its boundaries of a sepa- first by Parliament, and afterwards by Cromwell ernment of England under the Commonwealth, rate and independent confederation. A govern- as protector. It was not, in the contemplation mental organization, representing these States, of law, a government de jure, but it was a govwas established at Montgomery, in Alabama, ernment de facto in the most absolute sense. It first under a provisional constitution and after- incurred obligations and made conquests which wards under a constitution intended to be per- remained the obligations and conquests of. Engmanent. In the course of a few months four land after the restoration: The better opinion other States acceded to this confederation, and the seat of the central authority was transferred doubtless is, that acts done in obedience to this to Richmond, in Virginia. It was by the cen-government could not be justly regarded as treatral authority thus organized, and under its sonable, though in hostility to the king de jure. Such acts were protected from criminal prosecudirection, that civil war was carried on upon tion by the spirit, if not by the letter, of the vast scale against the Government of the United statute of Henry VII. It was held otherwise States for more than four years. Its power was recognized as supreme in nearly the whole of the by the judges by whom Sir Henry Vane was territory of the States confederated in insurrec

a

*2 British Stats..at Large, 82.. †4 Commentaries, 77.

509

tried for treason, * in the year following the res- | States. These were cases of temporary possession toration. But such a judgment, in such a time, of territory by lawful and regular governments has little authority. at war with the country of which the territory so possessed was part.

ers.

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 in 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 enemies' territory, and the inhabitants of that territory were held,

It is very certain that the Confederate government was never acknowledged by the United States as a de facto government in this sense, nor was it acknowledged as such by other powNo treaty was made by it with any civilized State. 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 (1) that its ex-in most respects, for enemies. To the extent, istence is maintained by active military power within the territories and against the rightful authority of an established and lawful government; and (2) 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 wrong-doers for those 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 this court in United States vs. Rice,† 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 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 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 vs. Page, 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

* State Trials, 119. +4 Wheaton, 253. 19 Howard, 614.

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 did not justify acts of hostility to the United States. How far it should excuse them must be left to the lawful government upon the reëstablishment of its authority. But it made obedience to its authority, in civil and local matters, not only a necessity, but a duty. Without such obedience, civil order was impossible.

It was by this government exercising its power throughout 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, except 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 this actual supremacy of the insurgent government, as a belligerent, within the territory where it 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. Contracts stipulating for payments in this currency cannot be regarded for that reason only as made in aid of the foreign invasion in the one case, or of the domestic insurrection in the other. They have no necessary relations 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 invasion or insurrection.

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