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Freese Jacob R.
Secrets of the Late Rebellion

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."