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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 treated as valid."

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

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PENNYWIT v. FOOTE.

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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 inhabitants 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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render judgment; that the court had no legal power to do so. We cite this case in support of the proposition before us, but without assenting to its application to the case before the court of an adhering state. See recent case in 66 Ill.

In Mosely v. Tuthill, 45 Ala. 646, the validity of an order of the probate court of that state, made in 1863, to sell lands, while the state was under the control of the insurrectionary government, was considered.

The court say: "Undoubtedly the court that made the order for this sale was not a court of a state of the Union."

The same view was distinctly announced by Justice Woodbury, in 1846, in the case of Scott v. Jones, 5 How. (S. C.) 378. Speaking of the unauthorized government which had been erected in the Territory of Michigan, before the admission of that state into the Union, he says: "Such conduct by bodies situate within our limits, unless by states duly admitted into the Union, would have to be reached either by the power of the Union to put down insurrection, or by the ordinary penal laws of the states or territories within which these bodies unlawfully organized are situated and acting; while in that condition their measures are not examinable at all by writ of error to this court, as not being statutes of a state or member of the Union."

In Illinois it has been held, that a citizen of that state might maintain an attachment against a resident of Alabama during the war, and, if no objection was interposed, proceed to judgment and sale of the property, notwithstanding the war, and that proceedings to condemn land might be had under the same circumstances. Mixer v. Sibley, 53 Ill. 61. While this proceeding would be regarded as binding in the state courts of Illinois, it would hardly be recognized in another state, if an action was brought on such a judgment.

Ludlow v. Ramsey, 11 How. (S. C.) 581, was an attachment against a defendant, who had voluntarily left his residence in Tennessee, where the action was, and for the purpose of engaging in hostilities against the United States, and for that reason he could not "be permitted to complain of legal proceedings regularly prosecuted against him as an absentee, on the ground of inability to return, or to hold communication with the place where the proceedings were conducted."

On the contrary, it was held in Dean v. Nelson, where the defendant was ordered out of the city of Memphis by Union officers, and while within the Confederate lines proceedings in attachment were had against him : —

"The defendants in the proceedings were within the Confederate lines. "Two of them had been expelled the Union lines, and not permitted to return; the other had never left the Confederate lines. A notice directed to them, and published in the newspapers, was an idle form. They could not lawfully see or obey it. As to them the proceedings were wholly void." Bradley, J., Dean v. Nelson, 10 Wall. (S. C.) 158. See, also, Don v. Lipman, 5 Clarke & Fin. 1.

So in R. R. Co. v. Trimble, 10 Wall. 367, a decree in equity in one of the loyal states against a party, who, having been engaged in the rebellion, was a prisoner of war of the United States outside of the state, and

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Vol. IV.]

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against whom there was no service, was held of no effect, and that a sale under it was void.

In Botts & Darnall v. Crenshaw, Chase, 224, one of the questions was as to the validity of an order of the court of hustings, of Virginia, a court of general equity jurisdiction, made on the application of plaintiffs' attorney, during the war, by which the attorney invested his client's money in Confederate bonds. The plaintiffs were resident citizens of Kentucky. Judge Chase says: "They being citizens of a state adhering to the United States, residing there, this order cannot be recognized by this court, because it is an act in derogation of the rights of persons beyond the jurisdiction of the de facto government of Virginia, of which the court was a constituent part, and because it is an act the tendency and effect of which was to sustain the course of the Confederate government, and aid in its struggle against the United States."

In the same case it was held that the ordinary relation of attorney and client was not dissolved by the war, and, therefore, that Crenshaw, who was employed before the war to collect a claim in Richmond, Virginia, continued to be plaintiff's attorney during the war for the purpose of making the collection and holding the money; but that his application as such attorney to the court, by which he obtained this order to invest the funds after collection, conferred on the court no power to bind the client, who resided in Kentucky. That is our view of this case, that while defendant's attorney would have continued such, notwithstanding the war, for the purpose of protecting and saving his property and rights, yet he had no power to waive any of his client's rights, as he did, by failing to plead a suspension of proceedings because of the war, much less could he consent that the ultimate rights of his client should be determined by a court which was a constituent part of a de facto government, that had no power over citizens of the United States beyond its military lines.

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The regular course of justice was interrupted by revolt; the United States courts, post-offices, and other agencies of the general government were closed; its laws were ignored and defied. This new régime had a boundary marked by a line of bayonets, which could be crossed only by force." By the public law of the civilized world, the judge, attorneys, officers of the court, and jury, were the enemies of defendants, acknowledging no allegiance to the Constitution and laws of the Union.

"The

All intercourse was forbidden; all remedies were suspended. suspension of the remedy during the war is so absolute that courts of justice will not even grant a commission to take testimony in an enemy's country." Hanger v. Abbott, 6 Wall. 532.

It was the duty of the attorney, either to have declined to appear as defendants' attorney, or, if he appeared, to have taken the proper steps to suspend the proceedings. His consent to a hearing at the time and under the circumstances was not in the interest of his clients, and clothed the court with no jurisdiction.

Again, by the state of civil war, these defendants became the public enemies of the State of Arkansas and its people, and they were our enemies.

The ordinary rules applicable to all public wars between independent nations would govern in determining the powers of the courts of that state

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Vol. IV.]

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over citizens of other states, conceding to that state authority to prosecute a war against the United States.

Vattel says: "A civil war breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge."

In the Prize Cases, 2 Black (S. C.), 1, the court says:

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"The people of the rebel states were then to be deemed enemies of the people of the loyal states.

Several of these states have combined to form a new confederacy, claiming to be acknowledged by the world as a sovereign state. Their right to do so is now being decided by a wager of battle. The posts and territory of each of these states are held in hostility to the general government. It is no loose, unorganized insurrection, having no defined boundary or possession. It has a boundary marked by lines of bayonets, and which can be crossed only by force. South of this line is enemy's territory, because it is claimed and held in possession by an organized, hostile, and belligerent power. All persons residing within this territory, whose property may be used to increase the revenues of the hostile power, are, in this contest, liable to be treated as enemies, though not foreigners. They have cast off their allegiance, and made war on their government, and are none the less enemies because they are traitors."

It must be borne in mind that we are not considering the validity of this judgment as if it were the act of a court of a state government of the Union, but as the act of a court of an insurrectionary government, that by force has supplanted the lawful government of a state in the Union. Neither are we seeking to determine the effect of a judgment of a state court against an alien enemy, rendered during hostilities, in the courts of the same state where rendered.

An alien enemy, residing in a state at war with his own state, may be proceeded against, if no objection is interposed, to final judgment, and the courts of such state would treat it as valid judgment. So perhaps it may, if, after service, he departs the realm before hostilities cease, and returns. to his own state; but when that judgment of the foreign state is sought to be enforced by action in his own state, its courts, whose duty it is to protect its own citizens, will treat it as a nullity, because, by the laws of war, the courts of one belligerent have no power over the subjects of the other.

All judicial proceedings as between such enemies are suspended. "Silent leges inter arma.'

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But it is said that by the Act of 1790 such judgments, when properly authenticated, are to have the same force and effect in the state where sued on as by law or usage they have in the state where rendered ; and Hawkins v. Filkins, 24 Ark. 286, and other cases cited in same volume, are cited as holding that the judgment of the circuit courts of that state during the war were valid.

Hawkins v. Filkins was between citizens resident there during the war. The defendant was served, and the parties, as we understand the case, were both present when judgment was rendered. This judgment might well stand on the principles we have laid down as the act of a de facto government over its own citizens within its jurisdiction.

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