7.1.6 Southwest (1820-1875): Texas in War and Reconstruction

Law and war, 1861-1865:  Confederate draft resistance

Ex parte Coupland – Texas, 1862 (26 Tex. 387)
  • In 1862, both the federal and Confederate congresses enacted draft laws but provided that draftees could buy their way out by hiring substitutes.  Both laws were unpopular and were challenged as an infringement of civil liberties.  Most Southern courts that heard challenges to the Confederate draft law upheld it and rejected arguments that the law embodied precisely the type of governmental tyranny that the Confederacy had been formed to resist.  In Coupland, Texas’s supreme court joined the majority over a vigorous dissent by Justice James Bell. 
“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)


  • Confederate currency depreciated rapidly throughout the Civil War and became worthless with Lee’s surrender in 1865.  After the war, many debtors attempted to pay off wartime obligations in Confederate currency, whereas creditors wanted to be paid in U.S. currency.  Other parties simply wanted to escape obligations incurred during the war and argued they should be allowed to do so because the Confederacy’s illegitimacy tainted all transactions that took place during its period of power. 
  • These cases occupied much time of Reconstruction-era courts, because the consequences of their decisions would shape the balance of economic power between creditors and debtors in the postwar South. Southern Reconstruction-era courts were deeply divided over these issues, but courts in the Old South soon forged a middle path that was ultimately adopted by the U.S. Supreme Court in Thorington v. Smith (1869).  Transactions that did not directly aid the war effort, such as business transactions in Confederate currency, would be recognized and enforced but acts in aid of the war would not be.
  • Texas’s Reconstruction judges were hostile to this compromise.  The state’s supreme court was reorganized no less than three times during Reconstruction, and each set of justice had its own view of how Confederate-era transactions should be handled.  In the Emancipation Proclamation Cases, the court held by a 3-2 vote that persons owed money for the sale of slaves during the war had a right to be paid.  Justice Andrew Jackson (“Colossal Jack”) Hamilton, who dissented, viewed this as a belated condonation of slavery and unsuccessfully urged the court to take a harder line.The following year, in Donley, Hamilton persuaded his colleagues to reject the compromise rule and hold that all contracts payable in Confederate money were illegal: whether or not the new rule led to economic ruin, Confederate-era contracts were part of the effort to destroy the Union and therefore should not be recognized as valid. 
  • In Grant, a successor court confirmed Hamilton’s position and refused to follow Thorington, but a year later, as it became clear that Reconstruction would soon end in Texas, the court changed its mind and followed the Old South rule.     

“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










 File:Confederate 50 dollars (1861).jpg

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