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Vol. IV.)

PENNYWIT v. FOOTE.

[No. 3.

“ It is only when the jurisdiction of the court in another state is not impeached, either as to the subject matter or the person, that the record of the judgment is entitled to full faith and credit."

This distinction is strongly supported by D'Arcy V. Ketchum, 11 Howard S. C. 165, where the case of Mills v. Duryee was limited and explained.

It was there held that the constitutional provision and act of Congress giving full faith and credit to the judgments of each state, in every other state, do not refer to judgments rendered by a court having no jurisdiction of the parties -- that it only referred to valid judgments.

It is an important feature of that case, that by the law of the State of New York, where the judgment was rendered, it was valid. It was a judgment against two joint debtors, only one of whom was served. Under the state law, this was a valid judgment against both, and if the language of the Act of 1790 had full force, this judgment, when properly authenticated, “shall have such faith and credit given it in every court within the United States as it had by law or usage in the courts of the state from whence it was taken ;” and yet when sued on in Louisiana, it was held void as to the party not served, though valid by New York law. It was said : “ The international law as it existed among the states in 1790, that a judgment rendered in one state, assuming to bind the person of a citizen of another, was void within the foreign state, when the defendant had not been served with process or voluntarily made defence, because neither the legislative jurisdiction nor that of the courts of justice had binding force. . . . In our opinion, Congress did not intend to overthrow the old rule.”

In Webster v. Reed, 11 Howard, 437, the defendant offered to defeat the force of a judgment by showing want of service, and it was held it could be done.

In Starbuck v. Murray, 5 Wend. 148, it is said : “Unless a court has jurisdiction, it can never make a record which imports uncontrollable verity to the party over whom it has usurped jurisdiction, and he ought not therefore to be estopped by any allegation in the record from proving any fact that goes to establish the truth of the plea alleging want of jurisdiction. So long as the question is in issue, the judgment of a court of another state is, in effect, like a foreign judgment - it is prima facie evidence.”

From a careful review of numerous cases, we find the rule now well settled that neither the constitutional provision, that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, nor the act of Congress passed in pursuance thereof, prevents an inquiry into the jurisdiction of the court in which a judgment offered in evidence was rendered, and such a judgment may be contradicted as to the facts necessary to give the court jurisdiction, and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist, and this is true either as to the subject matter or the person, or in proceedings in rem as to the thing. Harris v. Hardiman et al. 14 Howard S. C. 334 ; Borden v. Filch, 15 Johns. 141; Christmas v. Russell, 5 Wallace, 290; Elliot v. Piersol et al. 1 Pet. 328; United States v. Arredondo, 6 Pet. 691 ; Vorhees v. Bank Vol. IV.)

PENNywit v. FOOTE.

[No. 3.

of U. S. 10 Pet. 475; Moulin v. Insurance Co. 4 Zab. 222; Mackay v. Gordon, 34 New Jersey, 286; Wilson v. Bank of Mt. Pleasant, 6 Leigh, 570; Story on Const. sec. 1307 ; Story on Confl. of Laws, sec. 609; Thompson v. Whitman, 18 Wallace, 457 ; Špencer v. Brockway, 1 Qhio, 261; Goodrich v. Jenkins, 6 Ohio, 44; Anderson v. Anderson, 8 Ohio, 108; Paine's Lessees v. Mooreland, 15 Ohio, 445.

It follows that while a judgment of a competent court of any state of the Union, that has jurisdiction or authority over the person and subject matter, is conclusive upon the merits of the controversy in every state, yet the power of the court to render it is an open question in an action like the present.

It is competent, therefore, in such action, to inquire into the authority of the pretended court to exercise judicial functions, whether this record comes from a lawful tribunal, within a state of the Union, whether that tribunal had jurisdiction of the subject matter, and whether it had by any legal method obtained jurisdiction over the person, in order to determine whether it was a valid judgment under the Constitution. Either of these inquiries does not affect the merits of the controversy in the orig. inal action.

II. Was this record a judical proceeding of a court of one of the states of the United States ?

The state had seceded and dissolved its connection with the United States. It declared independence, and joined the Confederacy. These acts were null and void, but on this foundation a new Constitution with allegiance to the Confederate States was adopted, and for the time was maintained by armed rebellion. Civil war ensued. The existence of this new authority was being determined by wager of battle.

This usurping government was one unknown to the Constitution, and in direct antagonism to it and the authority of the federal laws and authority. It could acquire no legal authority over the people of the United States, and no actual power beyond the range of its guns. When the armed forces, raised to establish this new government and make good their declaration of secession and independence, surrendered, this unlawful state government fell. The present Constitution and state government of Arkansas is not the successor of that, and derives none of its power from its prior existence. The Congress refused to recognize it, or the validity of its acts. By the reconstruction acts, it was declared there was no legal state government to represent the state in the Union, and Congress took steps to organize a government in conformity to the paramount laws of the Union.

The courts of this usurped state government, set up on the ruins of the old, and dependent for its existence on organized treason, had no power over citizens of other states not domiciled there. It could acquire none by the steps taken. The defendants might cheerfully enter their appearance, and consent to have their case tried by a court of a state government in harmony with the Union, that recognized the binding force of the Constitution and laws of the United States, and where he was entitled to all the rights and immunities of a citizen of the United States, while he would be utterly unwilling to consent to be tried by a foreign court of a nation at war with his government, and where his rights as an American citizen are ignored.

Vol. IV.)

PennywIT v. FOOTE.

[No. 3.

These defendants never consented to surrender their rights as citizens of the United States, guaranteed by its laws, and commit the issue to a court of new organization. The convention had no power to transfer this case from out the protection of federal laws, and make it amenable to the decision of a court unknown to them. What, then, was the status of the State of Arkansas, and the circuit court of Crawford County, under the new state organization, as a state of the Confederacy?

In Texas v. White, 7 Wall. 700, Chief Justice Chase says :

“ Not only, therefore, can there be no loss of the separate and independent autonomy of the states, through their union under the Constitution, but it may be not unreasonably said that the preservation of the states, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and maintenance of the national government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible states. .... Our conclusion, therefore, is that Texas continued to be a state, and a state of the Union, notwithstanding the transactions to which we have referred.”

In these remarks, the word state is used, not to mean the political organization or government. The chief justice says : “ The people, in whatever territory dwelling, either temporarily or permanently, and whether organized under a regular government, or united by looser and less definite relations, constitute the state. A state, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such states, under a common constitution, which forms the distinct and greater political unit, which that Constitution designates as the United States, and makes of the people and states which compose it one people and one country.” Using the term "state" in this sense, it was said by the court “ that Texas continued to be a state, and a state of the Union.” After reciting the steps taken by the state to go out of the Union and join the Confederacy, much the same as in the case of Arkansas, it is added : “When the war closed there was no government in the state, except that which had organized for the purpose of waging war on the United States. .... That government immediately disappeared. .... There being no government in constitutional relations with the Union, it became the duty of the United States to provide for the restoration of such a government.” Speaking of the acts of the rebel legislature of Texas, the court say: “It cannot be regarded in the courts of the United States as a lawful legislature, or its acts lawful.

It is added, however, that it was for some purposes a government de facto, an actual government, which, though unlawful and revolutionary, possessed power over its own people in such matters as did not affect the duty of the state, or the people of the state, to the Union. The Chief Justice says:

“ It is not necessary to attempt an exact definition within which the acts of such a state government must be treated as valid or invalid. It may be said, perhaps with sufficient accuracy, that acts necessary to peace and good order among citizens -- such, for example, as acts sanctioning

Vol. IV.]

Pennywit v. Foote.

[No. 3.

and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries of person and estate, and other similar acts, which would be valid if emanating from a lawful government — must be regarded as valid when proceeding from an actual, though unlawful, government; and that acts in furtherance and support of the rebellion against the United States, and intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void.”

Horn v. Lockhart, 17 How. 571, involved the power of a probate court of Alabama to make an order, during the war, based on an act of the legislature authorizing an executor to invest trust funds in Confederate bonds. It is said, “No legislation of Alabama, no acts of its convention, no judgment of its tribunals, and no decree of the Confederate government can make such a transaction lawful.”

It is further said, “ That the acts of the several states, in their individual capacities, and of their different departments of the government, executive, judicial, and legislative, during the war, so far as they do not impair or tend to impair the supremacy of the national authority, or the just rights of citizens under the Constitution, are, in general, to be

the just as valid."Texas, 13 WBellion, to pasaid, " W the title ne quality of

Huntington v. Texas, 13 Wall. 650, turned on the power of the government of Texas, during the rebellion, to pass title to certain bonds of the United States, owned by the state. It is said, “Whether the alienation of the bonds by the usurped government divests the title of the state depends, as we have said, upon other circumstances than the quality of the government. If the government was in the actual control of the state, the validity of its alienation must depend on the purposes and object of it.

The same point was before the supreme court in Taylor v. Thomas, 22 How. 479.

The rebel legislature of Mississippi passed an act authorizing the issue of $5,000,000, in what was called “cotton notes," issued in form of currency, with which the state purchased cotton during the blockade. It is said, “ That the legislature in question, subsequent to the adoption of the secession ordinance, and of the ordinance by which the state acceded to and became a member of the insurrectionary Confederacy, ceased to represent the state as a constitutional member of the federal Union."

These usurped state governments were not the states, and while the states, in the legal and constitutional meaning of the term, were still in the Union, the political organization, the governments in armed rebellion, were insurrectionary and unlawful. It did not represent the states as members of the federal Union.

In Thorington v. Smith, 8 Wall. 1, the character of the Confederate government, formed by the seceding states, is considered, as it affected contracts of citizens, within its military lines. It is styled a government of “paramount force,” whose existence is maintained against lawful authority by active military power. It is said, its existence was never acknowledged by the United States, even as a de facto civil government; but, while it existed, it was necessarily the duty of private citizens

meme insurrecte political constitutions were

Vol. IV.]

PennywiT v. Foote.

[No. 3.

to acquiesce in its authority, and for such obedience the private citizen was not liable to his lawful government. On this ground, between citizens resident within its jurisdiction, a contract to pay in Confederate notes was valid.

In support of this view is the case of United States v. Rice, 4 Wheat. 203, where it was held that the inbabitants of the village of Castine, in Maine, which was captured by the British in the War of 1812, and held until the treaty of peace, in 1815, passed under a temporary allegiance to the British government, which, as to them, suspended the operation of the laws of the United States.

So the military conquest and occupancy of Tampico and the State of Tamaulipas, during the Mexican War, by the army of the United States, did not make that territory a part of the United States; but as to other nations, while it was so occupied, it was deemed a part of the United States. Fleming v. Page, 9 How. 66.

In Livingston v. Jordan, Chase's Decisions, 454, the Chief Justice says: • The courts of a state forming part of the Confederate States had no jurisdiction, during the civil war, over parties residing in states which adhered to the national government.”

This case is important because of its similarity to the present.

A party acting as prochein ami for infants, owners of a plantation situate in that state, but who resided in Maryland, filed a petition, in 1861, in the court of equity of Sumter County, South Carolina, where the land was situate, on a contract for the sale of the property by such party, and asking for confirmation. The sale was confirmed in March, 1861, and a deed was made for the property to the purchaser.

Upon coming of age, and after the war, the infants repudiated the sale, and brought ejectment, and their right to recover turned on the validity of this decree, made on the application of their next friend. This was impeached on two grounds : 1st. That the contract of sale was made without authority to bind them, 2d. That the war suspended the power of the court to bind residents of Maryland.

Upon this last point, it is said : “ The jurisdiction of the state court over the plaintiff, whatever it was, terminated when the civil war broke out. Upon that point we entertain no doubt. As between parties residing in the State of South Carolina, and parties residing in the states which adhered to the national government, between whom war made intercourse impossible, there could be no jurisdiction in the courts of South Carolina, while the war continued, by which the rights of non-residents could be injuriously affected.” While these remarks were not necessary to the decision of that case, they are nevertheless in point as the opinion of an eminent jurist.

Brooks et al. v. Feler et al. 35 Ind. 402, was a bill of review filed in Indiana after the war was over to review a decree made on an original suit commenced in 1861 by the plaintiffs' attorney, in which a decree was rendered during the war. The attorney had been employed just before the war by the plaintiff, who resided in Virginia, but who had no knowledge that the suit had been commenced or prosecuted to unsuccessful judgment until after peace was restored. The court say a state of war existed between Virginia and Indiana, and that it was error of law to

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