CHAPTER XV. A NEW WAY TO PAY OLD DEBTS. JUSTICE SHIFTING THE SCENES AND
PROMPTING THE ACTORS.
ANOTHER class of questions which came before the provost-court at Alexandria excited at the time a large amount of interest; was discussed to some extent by many of the ablest journals of the country; resulted in the payment of several old debts—amounting to many thousands of dollars—in an entirely new way; and as no correct account thereof has ever yet appeared in historical form, we purpose in this chapter to relate the facts and incidents connected with one or two of the cases.
Though the causes of the war had been brewing for many, many years; though it was, indeed, as Mr. Seward had long before called it, an "irrepressible conflict," which could only be settled by the sacrifice of thousands of lives and millions of treasure; though threats, louder, deeper, and more ominous, came year after year from Southern States, and that, too, from a class of men whom all acknowledged could act as well as threaten whenever they chose to put their threats into execution,—yet, when the storm did finally burst upon the country, it seemed to tens of thousands in the North like a clap of thunder from a clear sky, so wholly were they unprepared for it. Especially was this true among merchants, and still more especially was it true with that class of merchants who, for many years previously, had been selling goods to Southern merchants, and buying from them cotton, sugar, rice, and tobacco. These merchants had, of course, a great many pleasant personal acquaintances throughout the South; they had often been at their customers' stores, dined with their families, been upon their plantations, visited their sugar-mills, witnessed the workings of their cotton-gins, admired the wonderful power of their cotton-presses, heard their negroes sing while picking the cotton, listened in raptures to the peculiar melodies of the negroes as they stripped the tobacco leaf or rolled it into fragrant cigars, and though, even at such times and in such places, they had frequently heard Southern merchants and Southern planters complain of what they called "Northern interference with slavery" and "Northern oppression because of tariffs," etc., etc., yet it had never occurred to them as possible that the time would come when these same men would try to break loose from the North and set up for themselves a separate confederacy.
Such had been the confidences between Northern and Southern merchants, that, for years previous to the war, the former had been in the habit of selling the latter goods on a whole year's credit This was necessitated, in part, from the fact that planters had got behind in their finances, and were compelled to pledge their next year's crops for their present year's supplies; but it was owing much more to the fact that confidence, very great confidence, had become established between the Northern and the Southern merchant. This confidence, and consequent long credit, resulted in the fact that, when the war actually commenced, the merchants and planters of the South owed the merchants and cotton factors of the North the enormous sum of two hundred millions of dollars.
Some part of this debt would probably have been paid had the Southern merchant and planter been left to his own free choice; but the governmental and military authorities of the South, with a view to cripple the North and strengthen themselves, had a law passed so early in the contest as May 21st, 1861, prohibiting all debtors owing money to Northern creditors from paying them, and requiring the payment of the amount into the Confederate treasury, either in specie or treasury notes, for which they were to receive a certificate of the payment bearing interest and redeemable at the close of the war. How much of the sum due the North was ever paid into the Confederate treasury is not known, but probably a very small proportion of the whole amount. The Government having virtually repudiated the claim towards the one to whom the debt was actually due, it was not unnatural that the merchant should repudiate it towards the Government, and when asked the question how much he owed the merchants of New York, Philadelphia, or Boston, his answer was, "Nothing at all," nor was the creditor or any one else present to dispute his answer. In this way at least one hundred and ninety of the two hundred millions due the North escaped payment altogether, while even the ten millions which we suppose to have been paid into the Confederate treasury were absorbed by English capitalists and others like the mist of a summer morning.
Among the Southern merchants who owed considerable amounts to merchants and manufacturers of the North were those of Alexandria. What may have been the gross amount of their indebtedness to the North is not definitely known, but certainly tens, if not hundreds, of thousands of dollars.
Soon after the provost-court had been established in Alexandria, manufacturers and merchants began to come there to look after debts due them from the merchants of that city. Such as had not fled made such response as they could—paying in money if they had it and desired to continue in business, or returning to their creditors so much of their remaining stock as would satisfy their claims. Only in one instance, where the debtor remained in Alexandria, was the creditor obliged to call upon the Provost-Judge for assistance. In that case the debtor pleaded, as an excuse for non-payment, the act of the Confederate Congress of May 21st, heretofore spoken of. He wanted, he said, to pay—"of course he wanted to pay; but, being a Southern man, and with that act staring him in the face, he did not see how he could." The creditor called upon Judge Freese and acquainted him with the facts as above stated. The Judge sent for the debtor to meet the creditor at his private office. He there told the debtor that "the excuse he offered for nonpayment was no excuse at all—indeed, worse; for, besides being a mere subterfuge, it was a virtual acknowledgment of his own disloyalty; that it mattered not at all what laws the Confederate Congress had passed or might pass, they could not be recognized by the citizens of Alexandria so long as it remained in possession of the Union troops, and that was likely to be so long as the war continued; and that if he had the means to pay his creditor, the sooner he did it the better!" Within an hour the debt was paid, and it was the last of that kind of cases in which the Judge had to interfere, as within twenty-four hours the facts of this case were known to every merchant of Alexandria.
But there was another class of cases which came thick and fast, and for awhile gave the court a vast amount of trouble. To relate the origin, the incidents, and the results of a few of these will be the object of this chapter. The first was as follows:
Mr. S. was an old resident of Alexandria, and for several years before the war had been keeping an agricultural and hardware store in that city. He was regarded by his neighbors as a highly honorable merchant, and being a man of considerable means, had always met his payments promptly. He was a Virginian by birth, and when the contest began between the North and the South, promptly took sides with the South. Indeed, he had advocated secession so strongly and so loudly that he feared he would be arrested for disloyalty if he remained in Alexandria, so, when the Union troops were about coming in and the Confederate troops about going out, he retired with them. He did this, however, so unexpectedly, and in so much of a hurry, that he had no time to make a formal sale and transfer of his stock of goods to any one; but, on the morning that he left, he handed the key of his store to a neighbor and told him to look after his affairs until he returned, or until he could make some other arrangement. The neighbor did as requested, kept the store open, sold whatever he could for ready cash, and transmitted the money to Mr. S. whenever he had opportunity.
Thus matters were going on when a Philadelphia merchant, to whom Mr. S. was indebted, went to Alexandria to look after his claim. He had written several letters, addressed to Mr. S., Alexandria, Va., but could get no reply, and began to suspect that he might have left the city, though he had no positive information to that effect until he reached there. He inquired of the man whom he found in the store of the whereabouts of Mr. S., and was told that he had left, on the coming in of the Union troops; but where he had gone, or exactly where he then was, the man in the store pretended not to know. The Philadelphian said he had a claim, past due, of several hundred dollars, against Mr. S., and would like to have it settled in some way. The agent replied that he had not been authorized by Mr. S. to pay any debts, and, besides that, the Confederate Congress had passed a law requiring all men who owed debts to Northern merchants to pay the amount into the Confederate treasury, and it was possible that Mr. S. might have already paid off the claim by paying it into the Southern treasury.
The Philadelphian replied that he did not recognize any such payment as cancelling his claim; and, as he observed some of the very goods he had sold Mr. S. then in the store-room, he thought the agent ought to be willing to return him those goods, which he would take in payment at cost price, and then to pay him the balance in money. The agent said he could not, for one moment, entertain any such proposition. That, the goods having been placed in his care by Mr. S. when he left, he regarded himself as the owner of them, and could not think of returning any part of them to Mr. S.'s creditors, nor of disposing of them in any other way, except for cash in hand. The Philadelphian tried to convince the agent of the justice and reasonableness of the proposition he had made, and finally offered to accept of goods, at cost price, for the whole of his claim; but the longer he reasoned, the more obstinate grew the agent, until at last the agent said he could not, and would not, do anything about it; that the debt was not his own anyhow; that it possibly had been paid into the Confederate treasury, and, if so, was legally paid; and that it was only a waste of time and breath to talk to him any more about it.
The Philadelphian, having read something in the newspapers about Judge Freese's "Bayonet Court," concluded to seek the Judge and see if there was not some way by which his claim might be enforced. Going to his office, he told the Judge the whole case, and begged that he would aid him in some way to secure his claim.
The Judge replied that the provost-court had been established only with a view of preserving the peace of the city, and the personal and property rights of individuals, and not with any view whatever of collecting claims; that if its jurisdiction was enlarged to include civil as well as criminal cases, the business might prove larger than any one court could do, and thereby defeat wholly, or in part, its original intention; that whatever he could do by moral suasion to induce Mr. S.'s agent to pay his claim, he would most cheerfully do, but as to opening the court for the hearing and adjudication of such cases, it was more than he could at present consent to do. He would, he added, send for Mr. S.'s agent and see what, if anything, could be done. He accordingly sent an orderly to request the agent to come to the headquarters immediately.
When the agent made his appearance, the Judge told him why he had been sent for, and strongly urged him to make some equitable arrangement whereby to settle the claim of the Philadelphia merchant. The agent made about the same reply to the Judge that he had made to the Philadelphian, to all of which the Judge listened attentively without uttering a word. When he had entirely finished, the Judge said he would like to ask him a few questions to which he would like direct answers. To this the agent assented.
"First, then," said the Judge, "did Mr. S., before leaving, execute to you a bill of sale, or any other paper, by which to make the goods yours?"
"No," replied the agent, "he did not; but when about to leave he handed me the key of his store, and told me to take care of the goods until his return, or until he might make some other arrangement."
"Then," said the Judge, "the goods are no more legally yours than they are mine, and you are simply acting as guard over them. Have you not been selling some of the goods?"
"Yes," replied the agent; "I understood the care to include the right to sell, and have accordingly sold of the goods whenever I had opportunity."
"What have you done with the money received from sales?" said the Judge.
The agent became confused, hesitated, stammered, and finally got out that he had "sent some of it to Mr. S., and still had some of it."
"And it is your intention, I suppose." said the Judge, "to send it all to him so soon as you shall have sold all the goods?"
"Certainly, certainly," said the agent; "it would all belong to him."
"Then you think that no part of it would belong to his creditors; but that all should go to him?" said the Judge.
"Well, yes, about so," said the agent; "for if he has paid his debts once into the Confederate treasury, as I suppose he has or will, it would seem unreasonable that he should pay them again to such Northern merchants as he may happen to owe."
"Are you not aware," said the Judge, "that any law passed by the Confederate Congress is a nullity in Alexandria, and can have no possible effect on the question of contracts?"
"Well, yes, no, yes; but Alexandria, you know, is in Virginia, and Mr. S., you know, is at Richmond."
"Ah! at Richmond, is he? Only a little while ago you told this creditor that you did not know where he was, and I understood you to say the same in your story to me, and now, all at once, when you seek to screen him from justice and from Northern laws, you recollect that he is at Richmond. Very well, sir, then to the Richmond authorities he must look for protection, while this Northern merchant has no protection save through our provost-court, and though I told him, previous to your coming here, that the court could not take up such cases, yet now that I have heard your story, and see that by allowing you to retain and sell the goods will virtually be to give 'aid and comfort to the enemy,' while to interfere in behalf of this merchant will be to weaken the enemy, by cutting off some of his resources, besides doing an act of simple justice—in view, I say, of all these facts, I am now resolved to take up this case, and the first step in the case will be for the court to take possession of the store-room and all of its contents until the case can be heard and adjudicated. You will at once hand the key of the store-room, after closing it carefully, to the Provost-Marshal. He will place a guard over the premises to see that nothing is taken away or disturbed until the case is heard and decided, and to-morrow morning, at ten o'clock, you will be at the court with any books, papers, or witnesses you may have, when the case will be heard."
Had a bombshell fallen and burst at the feet of the agent, he could not have been more surprised. For some moments he seemed so dumbfounded that he could not, or did not, utter a word. Then, slowly arising to his feet, he was about to leave, when the Judge told him to again be seated, to await the coming of the Provost-Marshal, for whom he had sent.
When the Marshal made his appearance, the Judge directed him to accompany the agent to the store-room, to see that every window and every door was securely closed and fastened, to then place a guard both at the front and at the rear of the premises, and to see that they were regularly relieved and replaced, the same as other guards of the city, until further orders from the court, and meanwhile to retain the key of the store-room in his own possession, and see that nothing whatever was removed from the premises.
The agent then left with the Marshal, and all was done precisely as directed. That the Philadelphia merchant was pleased with the turn things had taken need hardly be added.
Next day, at ten o'clock, the Philadelphia merchant, the agent, and about a dozen friends of the agent, including the secession lawyer heretofore spoken of, appeared at the court-room. When all the police cases had been disposed of, the court said it was now ready to hear the civil case, in which, upon the court record, Mr. G., of Philadelphia, was named as plaintiff, and Mr. T., of Alexandria, as agent for Mr. S., was named as defendant.
Mr. G. arose, and said that he had no attorney to represent him in this case, and that he was himself wholly unacquainted with court proceedings, and did not know even how to take the first step. He begged to inquire of the court what was needed to be done upon his part?
The Judge replied that the first thing required of him was to prove his claim against Mr. S., beyond any reasonable doubt. To do this he must produce his original books of entry, and prove by the one who sold the goods, or by some one who knows of their delivery, that the goods charged in the original entry were actually sold and delivered to Mr S., and then you or some one else must, under oath or affirmation, satisfy the court that they have never been paid for.
Mr. G. replied that all this could be done if a few days' time could be given him; that he had not brought his account-books with him, nor was the clerk who sold the goods present. He could himself at once make affidavit as to the correctness of the account, and to the fact that it had never been paid, but beyond this he could not go until he could send to Philadelphia for his books and clerk; that he could have his books and clerk present if the court would adjourn the case for two days.
The court said that, under the circumstances, it would be entirely proper to grant the adjournment asked for by the plaintiff; but, to justify the Marshal in longer retaining the goods, the court would require Mr. G. to make a written state-of-demand against Mr. S., setting forth the nature and amount of his claim, and the fact that the claim had never been paid in any way, and was now justly due and owing to him. To this he must set his name, and then make affidavit that the statement is true. Upon this, as prima facie evidence of the claim, the court will direct the Marshal to continue possession of the goods until the case can be heard. The court asked the defendant if he had any objection to an adjournment, or to the course of procedure proposed, to which he answered that he had not; whereupon the court adjourned the case for two days.
Two days after, the parties again appeared before the court The plaintiff now produced his original books of entry, and both he and his clerk swore that they were such. The clerk swore that he had sold to, and forwarded to, Mr. S. every article charged upon the books. Mr. G. swore that he had seen many of the articles in Mr. S.'s store-room on the day he first arrived in Alexandria; that the account was due and overdue; and that no part thereof had been paid.
Mr. T. was then called upon by the court to make any defence he thought proper. He replied that he had no defence to make, further than the Judge already knew, that every fact and every argument within his reach had been stated and made at the interview had at the headquarters. He added, that the attorney which Mr. S. had been in the habit of employing before he left Alexandria was in the court-room, and that he had tried to induce him to take charge of and conduct the case, but this he had declined to do, as he was not prepared to take the oath of allegiance to the United States government, required by the court from all attorneys who would practise in it He had not had opportunity to confer with Mr. S., by letter or otherwise, since these proceedings commenced, nor did he know that he should have for a long time to come, else he might ask for an adjournment of the case until he could hear from him. Under all the circumstances he saw no other way than to submit to the judgment of the court, whatever it might be.
All parties having rested, Judge Freese said he "would have much preferred not to take up this class of cases, but under all the circumstances it was a responsibility he could not avoid. The plaintiff came to this city seeking his debtor and the recovery of a just claim. Upon inquiry he learns that his debtor has fled and is now within the enemy's lines, yea, even under the very wings and protection of the authorities at Richmond. He cannot pursue him thither, nor can he issue, or have issued, any process by which to compel his return. The goods he sold him, however, with a large amount of other goods, he finds in Alexandria, in possession of a man who claims to be Mr. S.'s agent for the care and sale of his goods, but not his agent for the payment of his debts. Indeed, this so-called agent—who, in a legal sense, is no agent at all, and has no more claim upon the goods than any other gentleman in this court-room—even goes so far as to say that 'Mr. S. may not owe this plaintiff anything now, however justly he may have, owed him a few months ago, for the reason that the Confederate Congress has since then passed a law sequestrating all debts due from the South to the North; in reply to which the court told him, and may now repeat for the benefit of this whole community, that it matters not what laws may or may not be passed by the Confederate Congress, they can in no way affect the people of this city so long as it remains in charge of Union troops, and that is likely to be so long as the war continues. Had there been any other tribunal in this city to which this class of cases could have been referred, this court would not have taken them up; but, since the State and county courts of Alexandria had virtually run away when the people ran away, the simple question to decide was, whether this court should take up this class of cases, in addition to such as it had already taken up, or allow Mr. G., and others like him, to be without any remedy whatever? Viewed from this standpoint, it became a duty, a responsibility, and one which the court could not avoid, without inflicting great injury upon others and consequent blame upon itself.
"With regard to the facts in the present case there is not a shadow of doubt in the mind of the court, nor is it at all probable that Mr. S. would deny any one of them, if here himself. He unquestionably owes this debt to Mr. G.; the goods in the store-room which he lately occupied unquestionably belong to Mr. S.; Mr. T. has no claim upon them whatever, not even the claim of an agent or clerk, in a legal sense; he has assumed authority so far as it suited his own convenience, but declines to assume it when it does not suit his convenience or his secession notions; to sell the goods, pocket the money, and transmit all or part of it to Richmond was, to his mind, all right—to pay Mr. S.'s creditors with the money, or with a portion of the goods, was, to his mind, all wrong. In all this the court differs with him entirely, and holds that so much of the goods as have not been paid for belong to his creditors rather than to him, and that the agent, so soon as he became satisfied of the correctness of the claim, should not have hesitated a moment about returning to Mr. G. so much of his goods as remained in store, and paid him the balance in money or in other goods. It is a principle of law that a consideration of some kind must pass from buyer to seller before legal possession can be claimed by the buyer. Hence you see in contracts the words, 'For and in consideration of one dollar, the receipt of which is hereby acknowledged,' etc.; whereas no dollar, or any other sum, has passed between the parties, and yet these words or their equivalent are necessary in order to make the contract legal. It may be answered that the taking of a note, or a consent to a charge upon books of regular entry, are regarded as a 'consideration' in the mercantile world, and this may be so; but certainly, if the purchaser afterwards repudiates his note or book account, or if the government under which he has placed himself repudiates the debt for him, then there is not, nor has there been, any 'consideration,' and the seller, in law as well as in equity, has a right to the goods.
"Again: in the eye of the law, Mr. S. would be regarded as an absconded debtor, and had there been a court of common pleas in this city, Mr. G. could have had an attachment issued, and the goods of Mr. S. seized and held by virtue of that attachment. True, Mr. S. has not left the State—and in most of the States the law requires that the party shall have left the State before an attachment can issue—but, under the present state of things, Mr. S. has as virtually left the State, or at least the jurisdiction of a court in Alexandria, as though he had gone to England. I certainly should have taken this view of the case had I been presiding in a common pleas court, and this case been brought before me, and I doubt not any other judge would have done the same. In law, as in other things, 'circumstances alter cases,' and it is the duty of a court always to consider circumstances, and to give such construction to law as will best promote the ends of justice.
"Nor does this principle at all conflict with another, so often and so strongly insisted upon by this court, namely, that abandoned property shall not be taken for private gain. Had any party, having no just claim upon Mr S., attempted to take for his own use and profit any of the goods left by Mr. S. in that store-room, this court, if informed of the attempt, would have used all its power to prevent such taking, and, if already taken, the court would have made the party return the goods to the place from whence taken. But the case in hand is altogether different. Here the party has a claim, a just claim, indeed an implied, if not a legal ownership in the goods which he seeks to take, and, instead of preventing, it becomes the duty of the court to assist in the transfer.
"But, again, it may be said by some—and is probably thought, if not said, by this defendant and his secession friends—that, as this is a military court, it has not, and should not presume to have, any jurisdiction in civil matters, or matters touching the transfer of property, real or personal. As heretofore stated, this court surely would not have assumed any such jurisdiction, had there been a circuit, district, common pleas, or chancery court in this city, to which cases of this kind could have been referred; but, as all present well know, there has been no such court here since the Confederate troops left, and with them all the officers of State and county courts. Hence, as before stated, it was this court or nothing. But there is a view, and a very strong view, of the case, in which it would become not only the right, but the duty, of this court, or of any military court, to interfere in cases of this kind, namely, where it became known that property, or the proceeds from sales of property, was being surreptitiously transferred from the hands of friends to the hands of enemies. The third section of the third article of the Constitution of the United States defines treason to be the 'levying of war against the United States, or in adhering to their enemies, giving them aid and comfort.' Now, if the transfer of goods, or the transfer of money from the sale of goods, gives to an enemy 'aid and comfort,' then, surely, it is the business of a military court to stop it, and the evidence in this case shows this to have been done. The agent admits that he has sold the goods for cash in hand whenever he had opportunity, and that, as he has had opportunity, he has transmitted the money to Mr. S.; nor does he, or any other of his friends, pretend to deny that Mr. S. is an avowed enemy to the government which this court, in part, represents.
"So suddenly and so unexpectedly has this new class of cases come upon the court, that no time has been had to consult with the Attorney-General or other legal gentlemen, or even to consult legal authorities with regard to the matter; but the court has no doubt that the principles laid down in every law text-book, including Blackstone, Kent, Parsons, Greenleaf, Chitty, Cockburn, Stephen, and others, will fully justify every position thus far taken by this court, even though there be not a single precedent to cite. While this court would much prefer to follow than to make precedents, yet it has no hesitancy in making them when the circumstances of a case call for, or justify, such action. At the earliest possible moment the court will draw up and promulgate a course of proceedings in cases of this character. Until then the form of proceedings and the manner of adjudication will have to depend altogether upon the facts in each particular case.
"The judgment of the court in this case is, that the plaintiff choose one man, the defendant another, and the two, a third, or, if there be any disagreement about the choice of a third man, that the Provost-Marshal act as such third man. That the three thus selected constitute a commission, authorized and directed by this court to set apart, of the goods left by Mr. S., so much as will pay in full, at a fair valuation, the claim due from Mr. S. to Mr. G.; that this commission shall fix the price of every article transferred to Mr. G., and, where there is a disagreement as to value between the two, the judgment of the third shall be final; that the gross amount of goods to be transferred shall include the amount of Mr. G.'s claim, the estimated cost of transportation from this city to Philadelphia, and five dollars to each of the commissioners for the services they will render; that the commissioners make a written report to this court so soon as the goods have been selected and set apart; but that the goods be not taken from the store-room, until the report of the commissioners be approved by this court, and an order for their shipment obtained. The Provost-Marshal will see to the execution of this order in all its parts."
The court then adjourned. On the afternoon of the same day each party chose their man, and the Provost-Marshal consented to act as the third. Next morning the three went to the store-room, accompanied by Mr. G. and Mr. T., and before noon had a sufficient amount of goods selected and set apart to cover Mr. G.'s claim. In the afternoon they presented their written report to the Provost-judge; he examined and approved it, and at once gave an order for the delivery and shipment of the goods. Next day they were shipped, and probably a better pleased man never left Alexandria than Mr. G.
The only other case of this character to which we can give place, occurred between a large wholesale dry-goods firm of New York and one of the largest retail dry-goods houses in Alexandria, and differed from the first case only in the fact that here the store was securely locked up, and had been ever since the owners left. There was no agent in this case left to sell or otherwise dispose of the goods, though it came out, in the course of the evidence, that the clerk, with whom the keys had been left, had frequently been seen to take large packages of goods from the store, and he acknowledged that he had sent some across the lines to his former employers.
In this case, as in the one related, the New York merchant went to Alexandria to look after his customers, and found them gone. After considerable inquiry, he found the clerk who had the keys, but the clerk said he had no authority from the owners to do anything, and would not so much as open the store to allow the creditor to look in. The merchant then called upon Judge Freese and told him the facts of the case. The Judge informed him that the court now had a regular course of procedure in these cases, and if he chose to pursue that course he could bring his case before the court. The merchant inquired what was the procedure? The Judge informed him that the first step was, for the party having a claim to make an affidavit as to its amount and its correctness—the same as in cases of attachment in ordinary courts; that thereupon the court issued an order, having the force of an attachment, to the Provost-Marshal, to take charge of the goods of the defendant until such time as the case could be heard—usually in one week from the day the attachment issued; that the plaintiff must then produce his original books of entry, or note, or other evidence of debt, and satisfy the court, beyond any possible doubt, that the debt is due and unpaid; that when this had been done—the defendant meanwhile, or any one for him, having, of course, full opportunity to make any defence within his power, if any he had to make—the court appoints three wholly disinterested persons to fix the value and set apart so much of the defendant's goods as would satisfy the claim of the plaintiff, with cost of transportation to a market, and costs of proceedings; that the three commissioners must then make report, with schedule of goods set apart, to the court; that the court carefully examines said report, and if found correct in all particulars, then issues an order to Provost-Marshal to deliver to plaintiff the goods so set apart; upon receipt of which the plaintiff executes receipt to Provost-Marshal for the goods, as in full liquidation of his claim against the defendant. The proceedings, the Judge said, were so plain that a child could understand them, and so open and straightforward, from first to last, that a mistake was scarcely possible.
The merchant expressed his delight at the mode of procedure, as detailed by the Judge, and said he was ready to make the preliminary affidavit at once, and in a week would return to Alexandria with his books and witnesses to substantiate his claim. The Judge drew the necessary affidavit; the merchant subscribed and swore thereto; the Provost-Marshal was sent for; the order for attaching the goods put into his hands; and within one hour from the time when the New York merchant entered the Judge's office, guards stood in front and at the rear of the building, to see that no goods were taken from the store-room. The young man who had the keys was then sent for, and told to write to his employers, and inform any friends of his employers who might still be in Alexandria, of just what had been done thus far, and that the court had appointed one week from that day to hear the case. If they, or any one for them, had any defence to make, they should be at the court-room at ten o'clock of that day and should then be heard. He thanked the Judge for his courtesy in sending for him, and for the timely notice given for defence, and was about to retire, when the Judge told him that he might hand the keys over to the Provost-Marshal until the case had been disposed of. This he at first refused to do, but a few words from the Judge satisfied him that wisdom was the better part of valor, when he took the keys from his pocket and handed them to the Marshal.
In one week the trial came on. The New York merchant, on behalf of his firm, appeared with his books and with the clerk who had sold and delivered the goods. The defendants were not present, but were represented by their clerk, by the secession lawyer of the city, heretofore spoken of, and by about a dozen other gentlemen, who were friends, if not relatives, of the absconded debtors. The plaintiff proved that the books before the court were the original books of entry of the firm of which he was a member. By his clerk he proved the sale and delivery of the goods, item by item, as charged upon the books. By himself he proved that the debt was now due, and that no part of it had ever been paid. The court then asked if there was any person present to make a defence in this case, if so, they would now be heard. The clerk then arose and said he "was instructed by the attorney of the firm to say, that while they had no formal defence to make in this case, yet they desired to enter their protest against the jurisdiction of this court, and to reserve to and for themselves whatever rights they might have under the laws of Virginia." He added, that he himself "was aware that the firm, of which he was formerly a clerk, had purchased goods of the New York firm represented in this case, and had no doubt that the amount they claimed was due them; but that it would have been wiser and more honorable in them to have waited until the war was over, when they would undoubtedly have been paid dollar for dollar." The court inquired if there was any other gentleman present who desired to offer any evidence, or say anything by way of defence in this case. There was no response.
The court then proceeded to give an opinion in the case, which occupied nearly an hour, and was listened to with almost breathless silence by the large audience present. In amount claimed, and in point of high standing, both as to the plaintiffs and defendants, it was the most important case of the kind yet brought before the court, and for the information of the general public, no less than for the parties immediately interested, the Judge thought it well to state the principles upon which the court acted, and their applicability to the case in hand. A reporter present wrote out the opinion, which, by request of the New York merchant, was published soon after in the New York Times, occupying over two columns of closely printed matter. As most of the principles enunciated in this opinion were the same as stated in the first case heretofore given, it is not necessary to repeat them here. In reply to the clerk's request "to reserve to and for themselves whatever rights they might have under the laws of Virginia," and to the opinion expressed by him that "the New York firm would have acted wiser and more honorable to have waited for their claim until the war was over," the court said:
"Of course, in this, as in every other case, the parties can and do reserve for themselves whatever rights they possess under the laws of Virginia, of which this city forms a part, and, if the rebellion succeeds, the parties reserving these rights will undoubtedly make the best use of them possible; but meanwhile the claimants, so far as this court can effect it, shall have a return of their own goods, or of others equal in value to their claim, and after that, if the debtors, through sequestration laws made by the Confederate Congress, or any laws now made or hereafter to be made by Virginia, can get the goods back or damages by way of reclamation, this court at least will have done its duty. With regard to the opinion expressed by the young gentleman, the court begs to differ with him. By his own confession portions of the goods have already been sent across the lines, and to that extent have contributed to the 'aid and comfort' of the enemies of this government, and had there been no claimants, no interference, there is no manner of doubt that every article in the store would, sooner or later, have gone the same way; and as to the debtors paying the claim after the war is over, if we may judge by what they and their chosen government have already done, there is no more probability of it than for the waters of Niagara Falls to run backwards. As the leap of the waters in that case is irrevocable, so is the leap from the fair haven of loyalty to the deep, dark chasm of disloyalty—once taken, there can be no hope of return." One other matter the court explained in this case, which was not explained in the first, namely, why the goods were not sold at public sale, and the money, instead of the goods, turned over to claimants. He said: "It will be observed that by the rules of procedure adopted in these cases, the court is quite as careful to protect the interests of debtors as of claimants. In ordinary actions for debt, in courts of common pleas, the goods, after being attached or levied upon, are put up at public sale and sold to the highest bidder, and the money received at such sales paid to claimants. In such cases it often happens that, even in a market, goods do not bring one-half and sometimes not one-fourth their real value, and the defendant of course has to suffer the loss. If the goods seized here were thus exposed to public sale, at this time, when two-thirds of its ordinary inhabitants have fled from the city, and when there is little or no market for anything outside of army stores, they would not bring one-fourth their cost; whereas the same goods taken to a market, will sell for about their original cost. Hence the rule in the proceedings whereby goods are assessed by three disinterested persons, and turned over to the claimants at the prices fixed by the commissioners. And the court begs to add—though not boastfully, since it only performs a duty in so doing—that, because of the absence of the defendants, doubly the care is taken that the full market value is fixed to each article turned over to the creditor; and that in every case the court carefully supervises the schedules, to see that no mistakes have been made.
"If the goods were sold at a public sale, the court could in no way control the price, and a debtor's goods might be sold for one-half or one-fourth of their real value; but by this procedure the debtor is sure to receive about the fair value of the goods. The fact that the debtor is absent (although a rebel to the government which this court in part represents) makes us all the more careful to see that he shall have exact justice; for, in all these cases, this court recognizes the principles so ably stated by Bouvier, by Blackburn, and by others who have written on the law of sales—1. That 'to constitute a sale, there must be a price, which is the consideration given for the purchase of a thing.' 2. That 'the price must be serious, or such a one as the seller intends to require to be paid to him. As to the quantum of the price, that is altogether immaterial, unless there has been fraud in the transaction.' 3. That 'the price must be certain and determined, but upon the maxim, id certum est quod reddi cerium potest, a sale may be valid, although it is agreed that the price of the thing sold shall be determined by a third person! 4. That 'the price must consist in a sum of money which the buyer agrees to pay to the seller; for, if it be paid in any other way, the contract is not a sale, but an exchange or barter. But it is only requisite that the agreement should be for a payment in money; in the sequel it may be changed, and the creditor may take goods in payment, and the contract will still be a sale. It is not requisite that the money should be paid down, either at the time of the sale or the delivery of the goods; it may be upon a credit, or payable at a future time. And, 5. That the consent of the contracting parties must be obtained; by which consent is meant an agreement to something proposed. It does not consist simply in a vague will to sell or to pay; it must bear on all the conditions which may be suggested by the circumstances of the case or imagined by the caprice of the contracting parties.'"
In this case, as in others, the court fixed upon the amount due the claimants, appointed three commissioners to select and assess values to goods to the amount of claim, supervised the report and schedule made, gave order to the Provost-Marshal to deliver the goods; all of which was done, and the New York merchant returned to his home, with the full conviction that in one city at least, and in one court at least, justice was administered without partiality, and without fear or favor of, or to, any one.
Not only was the Judge's decision in this case published, as heretofore stated, in the New York journals, but the newspapers all over the country had more or less to say about it editorially—some favorable and some unfavorable—the particulars of which and the results of which will be more fully stated in the next chapter.
