Law and war, 1861-1865: Confederate draft resistance Ex parte Coupland – Texas, 1862 (26 Tex. 387)
“If the practice of conscription is novel with us, so are the circumstances which now surround the country. Engaged in a contest that involves our existence as a nation, our liberties as a people …; with enemies who, … baffled in an unholy lust of gain and maddened by revenge, have buried at home the once cherished principles of republican liberty in a concentrated military despotism, …; who, though accustomed to boast of their morality and virtue, with the self-righteousness of the Pharisee, have shown themselves as devoid of either as they have been wanting in every ennobling principle of chivalrous and civilized warfare; … Engaged in such a war, if our government had failed to avail itself of every resource at its command for its most efficient prosecution, it would have shown itself derelict in duty and unworthy of the high confidence with which the country has so generously trusted it.” – Justice George Moore, in Coupland
“The government of the Confederate States possesses no power to compel citizens to enter into [military] service; and for the simple reason that the government is one of limited powers, that the people who instituted it were a free people, and had the right to make such a government as they pleased to make, and that they never intended to invest the government with an unlimited control over their persons for the purposes of war.” – Justice James Bell (dissenting), in Coupland Cleaning up after the Confederacy: “Confederate contract” and “Confederate money” cases Emancipation Proclamation Cases – Texas, 1868 (31 Tex. 504); Donley v. Tindall – Texas, 1869 (32 Tex. 43); Grant v. Ryan – Texas, 1872 (37 Tex. 37); Thompson v. Bohannon – Texas, 1873 (38 Tex. 241)
“The frequent occurrence of suits of this kind … has led us, after much deliberation, to reconsider our former rulings. It has not infrequently occurred that sales of property … during the war, for Confederate money, would … if the purchasers … should be compelled to pay their purchases in current funds, work gross injustice … We therefore … rule that .. .the plaintiff shall not be allowed to recover moer than affair consideration for the contract, in current funds.” - Justice Walker, in Thompson | ![]() Battle flag, 1st Texas Regiment - courtesy Texas State Library and Archives and Wikimedia Commons
Courtesy Wikimedia Commons “[The plaintiff] seeks to give value to the promises of a confederation of states entered into in hostility to the national authority and for its final overthrow, which promises were illegal and treasonable in their character, and are not susceptible of being validated by any power in the government.” – Justice A.J. Hamilton, in Donley
“[Under Thorington], ‘no contract made in aid of such an attempt [to overthrown the U.S. government] can be enforced through the courts of the country whose government is thus assailed.’ Now, we believe that no contract was ever made to be executed in Confederate money that does not come within the rule thus laid down, and that no plea of force or necessity can be urged to justify the utterance of these Confederate notes, or contracts made to be executed in them.” – Justice Moses Walker, in Grant
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EMPIRE OF LAWS - The Legal History of the 50 American States > 7. SOUTHWEST LEGAL HISTORY > 7.1 Southwest Legal History: The Frontier Era (1820-1875) > 7.1.1. Southwest Legal History (1820-1875): The Civil Law Tradition > 7.1.2 Southwest Legal History (1820-1875): The Clash Between Common Law and Civil Law > 7.1.3 Southwest (1820-1875): New Resource Use Rules for a New Region > 7.1.4 Southwest (1820-1875): Race Relations in the Free Southwest > 7.1.5 Southwest (1820-1875): Texas - Southwestern Oupost of Slavery >