
    No. 29.
    W. B. Stewart v. J. R Bosley et al.
    A written obligation for tlie payment of money for services rendered or to be rendered in the so-called Confederate army as a substitute, is illegal on its face, absolutely null and void, and cannot bo judicially enforced.
    A PPEAL^from the District Court, Parish of Natchitoches, Lewis, J.
    
      J. M. B. Tucker, for plaintiff and appellee.
    
      J. M Thomason, and J. H. Cunningham, for defendant and appellant.
    
      Brief of J.M. ThomasonandJ.H. Cunningham, for defendant and appellant.
    
    This action is founded on two written instruments made by defendants, payable to H. J. Patterson or bearer, dated February 21st, 1863, and one payable 23d February, 1864, the other, 23d February, 1865, for $1,750 each.
    The case was tried as to Bosley only. The instrument purports to have been given in consideration of services to be rendered by the payee, as a substitute for Bosley in the Confederate army, in the war then existing between the Confederate States and the United States.
    The answer of Bosley sets up the illegality of the consideration; alleges that the pretended contract was made in violation of the Constitution and laws of the United States, and against the public policy of the General Government, and avers that it was immoral, contra bonos mores, null and void.
    The judgment of the Court beiow was in favor of plaintiff. And after ineffectual efforts to obtain a new trial, defendant has appealed.
    We think the Judge a quo erred; and, as he has favored us with a written opinion in the case, we are enabled to examine the peculiar process of reasoning' leading to the conclusions enunciated therein.
    At the very threshold of the argument the Court below became involved in the complicated questions as to the rights and powers of the States, as contradistinguished from those of the General'Government, and as to the vexed issues as between State and National Sovereignty. We think his premises were bad, his reasoning unsound, and his conclusions erroneous. Tears ago, when these issues had powerful advocates on either side, we would not have been so much astonished by such conclusions. But now, at this late and sad period of our history, after the arguments have all been exhausted without effect, and the issue transferred from the forum to the field, for trial under the fearful arbitrament of the sword, such views may be said to be, at least, unfortunate. They are not supported in principle by any writer on constitutional law. They are in direct opposition to the high authority of Story, Kent, Greenleaf, Wharton, and all American law writers. All our Courts have always held directly the opposite doctrine.
    If the reasoning of the Judge below be sound, and his conclusions correct, then is the whole system of our former jurisprudence reversed; and the immense revolution through which we have just passed, while it has ostensibly failed, has been eminently successful in law. And while the Government is reestablished, and the States reunited in name, there is a most fearfully fatal antagonism still existing between the laws and policy of the States and those of the United States. Eor, if it be now held that the States are sovereign, and may disregard, violate and annul the Constitution and laws of the United States, the war has been fought in vain, the revolution has ceased, but is not ended. This was the sole issue of the late fearful struggle. The tribunal was one of dernier resort. There is no appeal.
    The Gulf States, under the leadership of men holding the same views with the Judge a quo, and asserting the same doctrines enunciated in the judgment below, boldly made the issue, and by all the energies of the most devoted partizanship endeavored to enforce their views. They failed; they abandoned the contest, and gave up the issue. They and we, all have acknowledged that the Constitution, laws and treaties of the United States are the paramount and supreme laws of the land, binding alike on the States and the people.
    The error of the Judge a quo seems to exist in misconceived ideas of the nature of our Federal Government. Ancient and modern history are both replete, with instruction on such issues. Numberless attempts at entering into solemn compacts and permanent conventions without surrendering the individual sovereignty of the States had been made, and they had all failed. The American colonies were not without large experience on such questions. Such efforts on their part also proved abortive. The union for revolutionary purposes, with the articles of confederation for a closer union, likewise failed. They were too weak to support confederation. Bound in foro conscientes only, the States often withheld their sanction to measures of the most vital importance. The General Government had no power to coerce. The neglected and powerless Union was fast dying of its own inherent defects and weakness.
    Warned by past experience, and dreading the prospects of the future, the great patriots and statesmen of that age pressed on the public mind the necessity of a convention for forming a stronger government. Their appeals were effective. The convention met. The Constitution of the United States is the result of their wise deliberations.
    The sovereignty of the States was the vexed question before that convention. The delegates were generally extremely jealous of State rights. They yielded nothing but was shown conclusively to be absolutely essential to the national existence. Two sovereigns could not exist together ; nor could the lesser rule the greater. The States had to surrender a portion of their sovereignty, or let the General Government fail. They chose the former. After years of the most learned and critical discussion, the Constitution was adopted by all the States, and its superior wisdom has been the eloquent theme of every orator. It was declared to be the supreme law of the land.
    
    The object of that convention was to settle in the most solemn and authentic manner, then and for all time to come, the fearful questions now again reopened in the opinion of the Court below in this case. They had been as canker worms preying upon and consuming the vitals of all former confederations. It had been fully u demonstrated in reason, experience and practice that no effective and permanent combinations could be entered into between States where each retained to itself the exercise of sovereign powers. The assertion of such powers, by the indivicluals, necessarily, in the very nature of things, ends the union, or leads to war for its maintenance. Such was the case in our late terrible struggle. Such must ever be the ease under like circumstances.
    A State or nation is a body politic, or society of men united to promote their mutual interests by their joint means. From the nature of the design there must be some one to determine, direct and command what is to be done by each in furtherance of, the common object. This public authority is the sovereign power. Vat., 1, 8. II., 201, 220.
    The Constitution of a State or nation is the paramount law of the land; the basis of public liberty and tranquility and of individual rights. Vat. 9 and 10.
    All disputes arising respecting the Constitution, the public administration, or the rights of the members composing it, must be referred to the national authority. Vat., 12. Story on Const., 128, 166. Const., art. 3.
    The Government of the United States is partly national, partly federal; national, just in so far as it operates on individuals, federal in its relations to, and modes of operation on, the States. But whether national or federal, it is supreme to the full extent of all the powers expressly granted in the Constitution, and as to those necessarily implied in a grant.
    The Constitution gives to the General Government, sole power to declare war and make peace, to enter into alliances and form treaties, to regulate commerce and coin money, and to manage all the external affairs of the country. These are the highest and most important attributes of sovereignty, and the party possessing them is essentially sovereign. And, as was necessarily intended, once granted by the States, they became irrevocable, permanent and binding to their full extent, scope and meaning.
    The States and the people thereof retained all such powers only as were not expressly granted to the General Government, or necessarily implied in a grant, or prohibited to the States. As to these powers, the States are wholly without authority. Beyond these, and as to everything else, they are unlimited in their functions and responsible only to themselves and the public opinion of the world.
    Hence, it follows that secession was not a right reserved by the States, or by the people thereof. Had it been retained, the labors of that august convention that formed the Constitution would have been in vain, and the delegates would have stultified themselves. For, as we have before shown, the objeots of that convention ■ were to take these sovereign powers or rights from the States and lodge them in the General Government; they having been found to be essential to its existence.
    Yet, in the very face of these plain and unmistakable grants, by the States to the Federal Government, the Judge below argues that the States are still essentially sovereign, and have absolute control of their own citizens. If so,,may they not grant them immunity against penalties for the violation of Federal law V Authorize them to refuse to pay Federal taxes, or serve on Federal juries, or bear Federal arms ?
    If, as argued by the Court below, the first and highest allegiance of the citizen is duo to his State, then he must obey State laws, though they conflict with the higher, the paramount and supreme laws of the land. Thus would a law of a State Legislature, or an ordinance of a State Convention, annul and set at defiance the Constitution of the United States. But such is not the case. The premises are wrong, the reasoning unsound, and the conclusion preposterous in the extreme. The Federal laws are supreme and must be observed by all, however much they may conflict with State legislation.
    It follows, then, that any act done, or contract made, in violation of the higher laws of the country, must be held and declared to be without effect when made the basis of a civil claim or suit. The Court below accords to a party violating the Federal Constitution and laws civil rights founded on and growing out of the very act of violation. He argues, in effect, that since a State is an incorporeal existence, having no one to sit in judgment, or execute sentence, upon her, therefore, she may lawfully do whatever factious majorities, influenced by prejudice or passion, may think proper, without regard to the Constitution and laws of the United States; and that such State action is full protection to all her citizens against the demand, civil and criminal, of that Government.
    It will be well for us all to remember that the General Government is not exclusively Federal. It is not to be confined in its operations only to the States. It may pass by these incorporeal existences and reach the corporeal individuals composing them. Upon these it may pass judgment and execute sentence. And when thus arrested for violations of Federal laws the State rights lawyer would plead, but in vain, State laws and ordinances in justification of such offences.
    Nor can a state of war, be it insurrection, rebellion, revolution or civil war, alter the case. Attempted revolutions, engaged in by large bodies of people, may entitle them to certain purely belligerent rights. And this arises solely from humane considerations. If the attempt fail in its purposes, the participators are not even exempt from punishment, much less entitled to civil rights growing out of acts of war. Revolutions are always highly criminal, unless undertaken for the highest and most sufficient causes. They are too often the result of prejudice and passion excited to serve the ambitious designs of unprincipled demagogues and ambitious aspirants.
    But plaintiff endeavors to justify and legalize the transaction out of which his claim grew, on the ground that a great civil war was pending, which annulled all preexisting laws and constitutions, and to have his claim enforced by virtue of the belligerent enactments under which it was made. It would be unsafe to admit that a minority of the States and people in interest could inaugurate civil war. Our Republican ideas revolt at seeing minorities shaping the destinies of and ruling the majorities. Minorities of those in interest have no right to inaugurate revolution. The precedent is dangerous in principle and ruinous in practice. Not one in a thousand of them would take place, if factious minorities were not allowed to rule. Before the late fearful struggle the united voice of the South would have been heard; her united action would have been respected. And had she been forced to go to war, her united arms would have been successful, because of the majesty of right and truth. Then we would have had an example of civil war. But against the known tvisbes of the majority, gouth (Jefi’dlwa bjindly led off, and others reck* lessly followed. The majority became involved against their consent and remonstrances.
    Bat, if it had been a civil war, it would not alter the case. The same Constitution and laws are still supreme. They have not been overthrown.
    That Constitution, Article 3, section 3, says: “ Treason against the United States shall consist in levying war against them, adhering to their enemies, giving them aid and comfort.”
    The Confederate forces were the enemies of the United States; they were engaged in active, persistent, fearful war with them. The payee of the instrument sued on joined the enemies of the United States to fight their battles, to give them aid, and now plaintiff, who represents him, wants pay for the chivalrous act of undertaking to aid in the overthrow of the Government of the country in which he lives, from whose laws he receives protection, and to whose Courts he appeals for relief. Such a contract is reprobated by law, and cannot be enforced.
    Chief Justice Marshall said: “It is perfectly well settled that no action can be maintained on a contract wicked in itself or prohibitad by law.” 11 War. 258.
    The contract sued on is not only in contravention of law, but the acts forming the consideration of it, are forbidden and denounced as the highest crime known to the law. It is reprobated by law, because it is against the public policy of the Government. Neither is it considered in any more favorable light by the laws of our own State. Article 19, C. P. says: “ Obligations contrary to justice, good faith, or good morals, such as those by which a reward is promised to commit a crime, give no right of action to either party.” The example of the rule given is precisely in point. For plaintiff seeks a reward for the commission of the highest crime known to our laws.
    Article 1772, O. 0., says: “Every contract must have a lawful purpose.” See also Schmidt v. Baker.
    
    Article 12, O. 0., says: “Whatever is done in violation of a prohibitory law is void.”
    Article 1886: “That is considered morally impossible, which is forbidden by law. All contracts having such objects are void.” See also 1887, 1889, 2026.
    The laws mentioned and referred to in these articles are: first, the Constitution, laws and treaties of the United States; secondly, the Constitution and laws of this State. The acts which formed the cause of the contract sued on are in palpable violation of the Constitution and laws of the General Government and of the State, and all those laws are now in full force.
    We think the judgment is erroneous, and should be sot aside and reversed, and judgment be rendered in favor of defendant, with costs in both courts, and we ask that it may be so ordered.
   TAniAEEBKO, J.

During the late rebellion, one Patterson hired himself to the defendant, Bosley, to take his place as a soldier in the army of the so-called Confederate Government. The price stipulated was thirty-five hundred dollars, to be paid in two annual installments of half that sum each, for which two several promissory notes were given, with a surety on each.- The notes were drawn payable to H. J. Patterson or bearer. The plaintiff-became the holder, and brought this suit against the makers. The-defence is, illegality .of consideration, having been given in aid of the rebellion against the Government of the United States.

-- . The .plaintiff obtained judgment in his favor against Bosley, and the latter has appealed.

. - -The notes express upon their face the purpose for which they were executed, and their illegality is patent. - The obligation sought to be enforced is utterly null and void.

. Tt is therefore ordered, adjudged and decreed, that the judgment of the District, Court be annulled, avoided and reversed; it is further ordered that judgment be rendered in favor of the defendant, releasing him from the illegal contract entered into, the. plaintiff and appellee paying costs in both courts.  