Chancely v. Bailey

• Decision Date: 30 June 1868
• Citation: 37 Ga. 532
• Parties: Wm. Chancely, plaintiff in error. vs. Robert H. Bailey, maker, and Wm. C. Cleveland, security, defendants in error.
• Court: Georgia Supreme Court

37 Ga. 532

Wm. Chancely, plaintiff in error. vs. Robert H. Bailey, maker, and Wm. C. Cleveland, security, defendants in error.

Supreme Court of the State of Georgia

JUNE TERM, 1868.

Harris, J., dissenting.

Complaint. Nonsuit. Decided by Judge Cole. Monroe Superior Court. August term, 1867.

This was complaint on the following writing:

"$2,500 00."

One day after date I promise to pay William Chancely, or bearer, Twenty-five Hundred Dollars, for services as a substitute for me, provided he serves and releases me from service for the period of three years, or during the war now going on between the Confederate States and the United States of America. And if I am not released from service for the above stated time, he is to receive only for the time he serves for me, at the rates of twenty-five hundred dollars for three years or the war.

Rob't H. Bailey,

January 31st, 1863. W. C. Cleveland, Security.

The pleas were that the undertaking was only conditional, and payable in the currency of that time, which had been tendered and refused, and that the undertaking was illegal and void.

Plaintiff introduced the obligation in evidence and closed.

Defendant moved for a nonsuit, upon the ground that the contract was illegal and void. The Court so held, and granted the nonsuit.

It is said this was error. The cause was argued at December term, 1867, and held up for consideration.

Cabaniss & Peeples, for plaintiff in error.

A. D. Hammond, by the Reporter, for defendants in error.

Warner, C. J.

This was an action brought by the plaintiff against the defendants upon a note, or obligation, whereby, the defendants promised, one day after date, to pay the plaintiff twenty-five hundred dollars, as a substitute for one of the defendants in the Confederate army, for the term of three years, or during the war now going on between the Confederate States and the United States of America, dated 31st January, 1863. Upon the trial of the case, the Court below decided that the undertaking of the defendants was illegal and void, and nonsuited the plaintiff. This decision of the Court below, is now assigned for error here.

The argument of the counsel for the plaintiff in error, is based mainly upon the ground that the State of Georgia had the lawful right to secede from the Union in 1861, and having done so, it was lawful for her people to form a new government, and to make war upon the Government of the United States, and, therefore, the consideration for which the note in question was given, was a lawful and valid consideration. This is a judicial, and not a political, question, depending for its solution upon the legal right of the State to secede from the American Union, and then to make war upon the Government of the United States. This Court has nothing to do with the maintainance of mere abstract political theories. Did the State of Georgia have the legal right to secede from the American Union, according to a fair legal interpretation of the Constitution of the United States, to which she was one of the original parties? The first, and only Union formed by the sovereign independent States of America, was formed on the 9th day of July, 1778, under the name and style of " The United States of America, " by articles of confederation and perpetual Union between the States. This Union, so formed, was declared to be, by the 13th article of the confederation of the United States, perpetual. In pursuance of a resolution adopted by the continental Congress, on the 21st February, 1787, a Conventionwas called of the several States, to be held at Philadelphia, "for the sole and express purpose of revising the articles of confederation, and reporting to Congress and the several Legislatures, such alterations and provisions therein, as shall, when agreed to in Congress, and confirmed by the States, render the Federal Constitution adequate to the exigencies of government, and the preservation of the Union." The object of calling the Convention, it will be perceived, was not to form a new Union, but for the preservation of the Union which had been already formed, and declared to be perpetual. The several States composing " The United States of America" assembled in convention at Philadelphia, and on the 17th day of September, 1787, adopted the Constitution of the United States, as the fundamental law of the government, which was subsequently ratified by the people of each State, separately, in their sovereign capacity as States, and thus became the supreme law of the land, in accordance with the terms and provisions thereof. We have already seen that the Union formed between the United States of America, in 1778, was to be a perpetual Union. The people of each State, therefore, acting in their sovereign capacity, declare, in the most solemn form, in the preamble to the Constitution, that " We the people of the United States, in order to form a more perfect Union, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution, for the United States of America." The evidence would seem to be incontrovertible that the Union of the States, under the Constitution, was intended by the framers thereof, and the several States ratifying it, to be perpetual. The object is expressly declared to be, on the face of the instrument, to form a more perfect Union than that which already existed, and that Union, as we have seen, was declared to be perpetual. The object and intention of the framers of the Constitution was to revise the articles of confederation, by which the first Union was formed, that it might remain indissoluble forever, for the benefit of themselves and their posterity. The Constitution itself, as well as the declared object of its adop-tion, expressly negatives the legal right of separate State sesession.

But it is said some of the States, before, and at the time of ratifying the Constitution, declared that the right of secession was reserved to the State. Be that as it may, the reply to that argument is, that no such reservation was incorporated into the Constitution, no terms of that or like character, are to be found in the instrument which they solemnly signed and ratified. All that may have been said, declared or resolved by the States as to the extent to which they intended to be bound, or as to the rights reserved, unless incorporated into the instrument which they signed and ratified, cannot now be considered in the legal construction of the Constitution. That instrument must be interpreted in accordance with the terms and stipulations contained therein. If the States did not intend to be bound by the Constitution as it is, then they ought not to have signed and ratified it; but having done so, they are legally bound by its terms and stipulations.

Another argument advanced in favor of separate State secession is, that the Constitution was formed and ratified by sovereign, independent States; that that being so, each State has the legal right to judge for herself when the compact has been broken, and to resume the exercise of her inherent sovereignty when, in her judgment, she thinks proper to do so; that between sovereign, independent States there is no common arbiter to judge. To the common understanding of mankind, it is extremely difficult to perceive why a sovereign, independent State should not be bound by her voluntary engagements in the same manner as individuals, and be required to perform them. Vattel, in speaking of the sovereignty of States, (an authority with which the framers of the Constitution were obviously familiar,) declares that "several sovereign and independent States may unite themselves together by a perpetual confederacy, without ceasing to be each indvidually a perfect State. They will, together, constitute a Federal Republic; their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent when he is obliged to fulfill engagements which he has voluntarily contracted." Vattel, page 3, chapter 1st, section 9. Concluding, then, that the several States were sovereign and independent at the time of the adoption of the Federal Constitution, they were able and willing to bind themselves together in a perpetual Union, for the purpose of establishing a government, and voluntarily entered into a solemnly executed compact for that purpose, and the Constitution is the legal evidence of that executed compact. Whatever powers, therefore, these sovereign, independent States voluntarily granted to the Federal government which they organized and created—whatever restraints they voluntarily imposed upon themselves as to the exercise of their respective attributes of sovereignty, as manifested by the Constitution— they are irrevocably bound thereby; for, in the language of Mr. Justice Story, in Martin vs. Hunter\'s lessee, (1 Wheaton\'s R., 304,) " the Constitution was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence." An executed compact differs in nothing from a grant. 2 Bl. Com., 443. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right; a party is, therefore, always estopped by his own grant, although that party be a sovereign State. Fletcher vs. Peck, 6 Cranch\'s R., 308.

But if we concede, ex gratia, that one State has the legal right, by virtue of her inherent sovereignty, to judge for herself that the executed compact into which she voluntarily entered, has been broken, and adopts her own mode and means of redress, still, it must also be conceded that every other State in the Union has precisely the same right, by virtue of her inherent sovereignty, to judge for herself, that the ...