Vol. IV.] PENNYWIT v. FOOTE. [No. 3. was and is the same court in which said suit by the plaintiffs against the defendants, in the petition mentioned, was instituted on the 26th day of October, 1857, and in which the said defendants appeared and pleaded their pretended defence, mentioned in their said amended answer, and was not another or different court, as pretended in said answer, and was, at the commencement of said suit, and thence continually until and at the time of rendering said judgment, a court of general jurisdiction in law and equity, lawfully established and proceeding under and by virtue of the Constitution and laws of the said State of Arkansas, and that the judge of said court, who rendered said judgment, was, at the time when he rendered the same, duly appointed, qualified, and acting as such, under and by virtue of the Constitution and laws of the said State of Arkansas. And plaintiffs aver that, by the law and usage of the said State of Arkansas, the said judgment of said court now is and ever since the rendering thereof has been of full force and effect, and that the same, at and ever since the commencement of this action, had and now has absolute verity, faith, and credit in all the courts of said state, and remains wholly unreversed; and they deny each and all averments in said answer to the contrary." The case was again reserved to general term, and then submitted to court on the pleadings and the following agreed statement of facts: "This action coming on to be heard, the parties waived the intervention of a jury, and submitted the same for trial by the court, upon the pleadings and the following agreed statement of testimony: "The plaintiffs offered and read in evidence the transcript of the record of proceedings and judgment in their action against said defendants in the circuit court of Crawford County, in the State of Arkansas, November term, in the year 1861, and the authentication thereof, which is hereto annexed, and marked Exhibit 1; also the transcript of section 4, article 6, of the Constitution of said State of Arkansas, and the authentication thereof, which is hereto annexed and marked Exhibit 2; also the decision of the supreme court of said State of Arkansas, being the highest court of judicature in and of said state, rendered at the December term, in the year 1866, in three causes, reported in volume 24 of a book styled Arkansas Reports, being the official and authorized report of the cases. adjudged in said court, viz., the decision in Hawkins v. Filkins, reported at page 286, and in Beller v. Page, reported at page 363, and in Belding V. Goodwin, reported at page 486, which reports and decisions so referred to are made part hereof as though herein fully set forth, and were offered and read by plaintiffs as evidence tending to show the credit and effect due by the law of said State of Arkansas to the said judgment and proceedings in said circuit court of Crawford County. "And the plaintiffs thereupon rested their case. "Said defendants then offered testimony that on the 16th day of January, 1861, the legislature of said State of Arkansas passed what was styled a convention bill. That on February 18th delegates to such convention were elected, and that on March 4th the convention met, and on the 6th of May it again met and adopted an ordinance, whereby Arkansas was declared to be a separate and sovereign state; and the ordinance or compact, by which she became one of the United States, thereby repealed, abrogated, and set aside, and the union subsisting between said state and Vol. IV.] PENNYWIT V. FOOTE. [No. 3. the United States forever dissolved, and her people and citizens absolved from all allegiance to the United States, or the government thereof, and also authorized the transfer to the so-called Confederate States of America (through its delegates to the Provisional Congress of said Confederate government, which Congress first met and organized February 18th, A. D. 1861), of the arsenal at Little Rock and the hospital at Napoleon, the same belonging to the said United States of America; and that in the month of May, 1861, said Arkansas was formally admitted into the Confederate States of America, and through its delegates gave its adhesion to the Provisional Constitution of said confederation. "That on the said 4th day of March, 1861, a convention in Arkansas assembled, ordained and established what purported to be a state Constitution, a transcript of which was introduced by defendant, and is hereto attached and marked Exhibit 3; that the same was adopted June 1, 1861, by a convention of delegates assembled, claiming to represent the State of Arkansas, as a member of the so-called Confederate States of America, and that said judgment was rendered by a court whose judges and officers were acting under the authority of the Constitution adopted as afore said. "That the defendant, John T. Foote, on the 26th day of October (1857), eighteen hundred and fifty-seven, was a citizen and resident of the State of Ohio, and continued to be up to the month of June (1863), eighteen hundred and sixty-three, and that from said date last named till June, 1866, he was a resident of the State of New York, and that from June, 1866, till the present time, he was and has been a resident of the State of New Jersey. That afterward, and prior to the 16th day of November, 1861, the said State of Arkansas, combining and confederating with the States of South Carolina, Georgia, Florida, Alabama, Louisiana, Texas, North Carolina, Tennessee, and Virginia, under the pretended authority of the so-called Confederate States of America, levied and waged war against the United States of America, and so continued to do before and after the said 16th day of November, 1861, and that the residents of the said State of Arkansas were engaged in open rebellion and war against the said United States of America. "And that on and before the said 16th day of November, 1861, and for a long time thereafter, the armies of the United States of America and of said Confederate government were arrayed against each other, and lines were established and continued between the State of Arkansas and the States of Ohio and New Jersey, and all intercourse was prohibited and rendered impracticable between said states. "And, thereupon, it is certified that the foregoing being all the testimony offered on either part, each of said parties excepted to the competency of the testimony offered by the other to maintain the issue. And it was ordered that the action be reserved for the decision of the court in the general term, upon the pleadings and the testimony aforesaid. "In witness whereof the judge at special term has hereunto set his hand and seal. M. B. Hagans. [Seal.]" Exhibit No. 1, referred to, is a copy of the record of the Arkansas judgment authenticated in due form. It shows that proceedings by attachment were begun in 1856, and at Vol. IV.] PENNYWIT v. FOOTE. [No. 3. the February term, A. D. 1858, "the said defendants, by their attorney, Jesse Turner, entered their appearance," and gave their consent to the filing of an amended declaration. Afterward, in August, 1858, defendants, by their attorney, appeared, and, on his motion, leave was granted them to take testimony by depositions, which appears to have been done by defendants as well as plaintiffs. At July term, 1859, the defendants, by said attorney, filed their plea in the nature of a general denial. Finally, at the November term, 1861, "the said parties, by their respective attorneys, appear, and neither party requiring a jury, this cause is submitted to the court, sitting as a jury, by consent of parties;" and, after hearing the evidence, judgment was rendered against the defendants, whose attorney filed a motion for a new trial, which being overruled, he took a bill of exceptions, which is also made part of the record. Exhibit No. 2 is composed of extracts from the Constitution of Arkansas, adopted March 4, 1861, by a convention called in due form by act of the legislature, passed January 16, 1861. This convention, on the 6th of May, 1861, adopted an ordinance of secession in the usual form, and also this Constitution, and united with other states in forming the new government called the Confederate States of America, and as such state engaged in the war of the rebellion. Under this new Constitution, it was declared that all writs, actions, prosecutions, judgments, claims, and contracts of individuals and bodies corporate should continue as if no change had taken place in the Constitution or government of the state, and all process previously issued should be as valid as if issued after its adoption. It was further declared that all officers under the authority of the state shall continue to hold office until their terms expire under the provisions of this new Constitution, and all were required to take an oath to support the Constitution of the Confederate States of America, as well as of the state, and to abide by and observe all the ordinances passed by the convention aforesaid. Upon this foundation, a state government was set up; the state, from its stand-point, was an independent state, united by compact with the confederacy. As such, she resorted to arms. King, Thompson & Avery, for the plaintiffs in error. I. The record of the judgment in the Arkansas court was entitled to the same faith and credit which it had by law and usage in that state. Constitution of United States, art. 4, sec. 1; Act of Congress, May 26, 1790, 1 Stat. at Large, 122. As to its validity by the law of Arkansas, see Hawkins v. Filkins, 24 Ark. 286, 295, 296, 316, 326; Beller v. Page, Ib. 363; Belding v. Godwin, Ib. 486; Art. 4, sec. 1, Constitution of United States; White v. Cannon, 6 Wal. 443; Hughes v. Stinson, 21 La. Ann. 540; Hill v. Boyland, 40 Miss. 618; Harlan v. The State, 41 Miss. 566; Brown v. Wright, 39 Ga. 96; Bennett v. Morley, 10 Ohio, 100; Mills v. Duryee, 7 Cranch, 481; Mayhew v. Thatcher, 6 Wheat. 129; Caldwell v. Carrington, 9 Pet. 86; McElmoyle v. Cohen, 13 Pet. 312; Spencer v. Brockway, 1 Ohio, 260; Silver Lake Bank v. Harding, 5 Ohio, 545; Goodrich v. Jenkins, 6 Ohio, 44; Anderson v. Anderson, 8 Ohio, 108: Arndt v. Arndt, 15 Ohio, 33; Scott v. Pilkington, 2 Best & Smith (110 Eng. Com. Law), 10; Jones v. Walker, 2 Penn. 689; Lessee of Le Grange v. Ward, 11 Ohio, Vol. IV.] PENNYWIT v. FOOTE. [No. 3. 557; Daniels v. Stevens, 19 Ohio, 222; Peck v. Jenners, 7 How. (S. C.) II. The states which seceded in rebellion did not thereby lose their existence or "independent autonomy." Arkansas continued to be a state, and a state of the Union, and the functions of all departments of the state legislative, executive, or judicial-were unimpaired. Their acts and proceedings were valid, except such as were in aid or furtherance of the rebellion. The confederacy and its measures are held void because it was organized by and for treason only. But the states stood upon a different footing. Texas v. White, 7 Wal. 700; Sprott v. United States, 20 Wal. 459, 464; United States v. Insurance Companies, 22 Wal. 99; Horn v. Lockhart, 17 Wal. 580; Taylor v. Thomas, 22 Wal. 479, 489. III. The court erred in applying to a defendant the doctrine of persona standi in judicio, which in war suspends contracts by reason of the plaintiff's disability to sue in the enemy's country. 1 Kent Com. 68; Griswold v. Waddington, 16 Johns. 438. The plea of alien enemy is available only against the plaintiff, and even then is most strictly construed. 1 Chitty Pl. 479; Clark v. Morey, 10 Johns. 69; 3 Camp. 150, 153; 13 Ves. 71, 72, and note. Alien enemy may be sued, though he cannot bring suit. Miller, J. 18 Wal. 106, 111. And as to this see White v. Cannon, 6 Wal. 406; McVeigh v. United States, 111 Wal. 259; University v. Finck, 18 Wal. 106; Van Brymen v. Wilson, 9 East, 321; Buckly v. Lyttle, 10 Johns. 117. The suit in Arkansas was begun, and the defendants, by their attorney, had appeared and pleaded prior to the war. The jurisdiction of the court continued unbroken. The war would have been ground for a continuance, if applied for, but did not abate the suit. IV. Giving the record due faith and credit, it disclosed the fact that the defendants, by their attorney, submitted the cause and went to trial without objection. The attorney was appointed before the war. Νο revocation of his authority was shown. The war did not work a revocation. Buchanan v. Curry, 19 Johns. 137; Ward v. Smith, 7 Wall. 447; Botts v. Crenshaw, Chase's Dec. 224; Anderson v. Bank of Cape Fear, Ib. 535; Manhattan Ins. Co. v Warwick, 20 Grattan, 614; Monsseaux v. Urquhart, 19 La. Ann. 482. V. The authority of an attorney at law is presumed, and the submission of the case by the defendants' attorney to the Arkansas court was conclusive upon them, unless relieved against, in the manner pointed out in Abernathy v. Latimore, 19 Ohio, 286; Treasurer of Champaign County v. Norton, 1 Ib. 270; Porter v. Critchfield, 3 Ib. 518; Pillsbury v. Dugan, 9 Ib. 117. The rights of defendants as citizens were not impaired. They had their day in court. 1 Ohio, 270. McGuffey, Morrill & Strunk, and Geo. Hoadly, for defendants in error. I. As to the record of a judgment of one state called in question in another, U. S. Constitution, art. 1, sec. 1; U. S. Stat. at Large, 122; Bartlett v. Knight, 1 Mass. 401; 2 Parsons on Contracts, 607; Hitchcock v. Aicken, 1 Caines, 460; Thomison v. Whitman, 18 Wall. 457; Maxwell V. Stewart, 22 Ib. 77. II. As to the validity of a judgment rendered against a resident of a Vol. IV.] PENNYWIT v. FOOTE. [No. 3. state adhering to the Union during the late war, by a court of a seceding state, &c.; and as to whether jurisdiction that had once attached was suspended by the war, Bissell v. Briggs, 9 Mass. 462; Hall v. Williams, 6 Pick. 232; The Prize Cases, 2 Black, 635; Livingston v. Jordan, vol. 10, No. 1, Am. Law Reg. 55; Hanger v. Abbott, 6 Wall. 632; The Protector, 9 Ib. 687; Dean v. Nelson, 10 Ib. 158; Railroad Co. v. Trimble, Ib. 367; Ludlow v. Ramsey, 11 Ib. 581; Levy v. Stewart, Ib. 244; Conley v. Bueson, 1 Heiskell (Tenn.), 145; Texas v. White, 7 Wall. 100; University v. Finch, 18 Ib. 106; Galpin v. Page, Ib. 350; Mitchell v. U. S. 21 Ib. 350, 368; Fretz v. Stover, 22 Wall. 198, 206; Taylor v. Thomas, Ib. 479, 489; Ross v. Jones, Ib. 579, 586; Perkins v. Rogers, 35 Ind. 124; Lasese v. Rochereau, 17 Wall. 437; Cappell v. Hall, 7 Ib. 542; McVeigh v. U. S. 11 Ib. 259. III. Whether the government of Arkansas had a de facto or a de jure existence, or was merely a usurpation, the court is referred to 7 Eng. Stat. at Large, 436; Bolton v. Arme, Cases in Chancery, 55; Harrison v. North, Ib. 83; Latham v. Clark, 25 Ark. 574; Robertson v. Sloss, 7 Coldw. 144; Harrison v. Gilmer, 20 La. Ann. 242; Twiss's Law of Nations, 297; Griswold v. Waddington, 15 Johns. 438; The Prize Cases, 2 Black, 635; Martin v. Hewitt, 44 Ala. 418; Noble & Co. v. Collins & Co. Ib. 554; White v. Texas, 7 Wall. 701; Bank of Tenn. v. Woodson, 5 Coldw. 176; Conley v. Bueson, 1 Heiskell, 145; Cassell v. Backreck, 42 Miss. 56; Thomas v. Tyler, 42 Ib. 651. JOHNSON, J. The facts disclosed present for our consideration important and novel questions growing out of the late civil war. They involve a determination of the legal effect of the secession of the State of Arkansas, and the war that ensued, upon the power of the courts of that state, during the war, to render judgment against a citizen of Ohio, and also the extent to which faith and credit should be given to a judgment thus rendered, under the Constitution and laws of the United States. On behalf of the plantiff, it is claimed that full faith and credit should be given to this judgment, under article 4, section 1 of the Constitution of the United States, as a judicial proceeding of a state; but if it is not such, then at least it is entitled to all the verity of a foreign judgment, as the proceeding of a de facto court, having jurisdiction of the case and the parties. The defendants insist that this is not the record of a court of a state of the Union; that while the act of secession was void, and the state was never legally out of the Union, yet the government that was set up by the people of the state was a revolutionary usurpation in violation of the Constitution; that this government was a government of force, maintained by arms; that all acts, legislative, executive, and judicial, were, as to the United States and its citizens, null and void. It is further insisted that this was a war, in the sense of public law, and that the courts of Arkansas had no power to proceed to judgment against defendants; that they were by the war, and the duty which was imposed, as well as by the danger attending it, forbidden to appear and defend. It appears that this action was begun by the plaintiffs in the circuit court of Crawford County in 1857. Personal appearance was entered and issue joined prior to the war. |