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wards modified by the same, or some of the same judges who made or concurred in them.

The times, indeed, were not then favorable to the formation of correct opinions. Everything was disestablished. The Confederate government with all its departments, offices, and great powers, had gone down before men's eyes, and was seen no more. The state governments were prostrated, and military administrations were set up in their stead. To these succeeded civil governments that had been solemnly instituted by delegates from the people assembled in conventions. These, also, were overturned and denounced as illegal, by the acts of Congress known as "the reconstruction laws,” and others were constituted to take their places.

We are referring to events, not criticising them. It does not come within the scope of our duties on this bench to pass judgment on the conduct or policy of any of the actors in those tragic scenes. But there was a general instability of the most inviolable institutions of society. And in the conflict of passions and interests producing it, principles became indistinct, and the minds of men possessed by lawless and revolutionary ideas.

That a much greater amount of evil than that which we have hitherto suffered did not result from this condition of things, is largely due to the moderation, wisdom, and learning of the supreme court of the United States. The influence of its action has been felt in all the courts of the land. And it is by the light which that tribunal has shed upon the subject, that we propose to proceed in our investigations of the questions : What authority is due to the judgments and decrees of the courts of Alabama rendered during the war? and What was the status of those courts?

In 1867, the case of Walker v. Villavaso, 6 Wall. 124, came before that court. The facts concerning it were these : In 1861, Louisiana had (according to the report of the case) “passed an ordinance of secession from the Union, adopted the Constitution of the rebel states, required all office holders to swear allegiance to it, and had been proclaimed in a state of insurrection by the President of the United States.” After this, in October, 1861, a decree for the foreclosure of a mortgage, and sale of the mortgaged property, was made by a district court of that state. In 1867, after the war was over, this decree was affirmed by the supreme court of Louisiana, then reconstituted and a loyal court. In the supreme court at Washington it was insisted that it must take judicial cognizance of the facts mentioned, which (as it was urged) made the decree of the district court void, as that of an insurrectionary court under a political organization hostile to the United States, and so must judicially know that the appellate court of Louisiana, in affirming that decree, decided adversely to the proposition, that it was void for that reason; wherefore the supreme court of the United States should take jurisdiction of the cause. But it held in a brief opinion, that this matter not appearing by the record to have been in controversy below, the cause could not be brought before it under the Judiciary Act of 1789, and it was, therefore, dismissed. This left the original decree below (rendered when Louisiana, as one of the Confederate States, was waging war against the federal government) to be carried into effect, upon the recognition and affirmance of it as valid, after the war, by the supreme court of Louisiana.

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At the same term (December, 1867) of the supreme court, at Washington, the question came up in a different form, in White v. Cannon, 5 Wall. 443. This also was from the supreme court of Louisiana. But this time it was that court, and not the inferior one, that was the “rebel court.” And it had, after the ordinance of secession of Louisiana had been passed, reversed the judgment of an inferior loyal court, and rendered a different one in its stead. Upon the argument of it at Washington, it was suggested to the court that the decree of the appellate court below was void, because rendered after the secession of Louisiana from the Union. But the supreme court of the United States, after reviewing the case, affirmed the decree, and briefly said in conclusion: “ The objection that the decree of the supreme court of Louisiana is to be treated as void, because rendered some days after the passage of the ordinance of secession of that state, is not tenable. That ordinance was an absolute nullity, and of itself alone, neither affected the jurisdiction of that court, or its relation to the appellate power of this court."

At the next term came up the great case of Texas v. White, to which we shall recur hereafter.

In June, 1871, in the circuit court of the United States, at Mobile, Mr. Justice Bradley of the supreme court presiding, the case of Lockhart et al. v. Horn, Ex'r, et al., came up for consideration. This was a suit on the equity side of the court, to set aside a will which had been established in a probate court of Alabama, and for the settlement of an administration.

In his opinion in the cause, Justice Bradley said: “The complainant relies on several grounds for the suspension of the limitation: first, the fact that civil war was raging in Alabama and other states, from January 11, 1861, when the act of secession was adopted, to the close of hostilities and restoration of order, in the summer or fall of 1865. I do not agree that this was a sufficient ground for the suspension of legal remedies and acts of limitation, as between the citizens of Confederate States, any more than it would be as between citizens of states which adhered to the general government. It is a fact, that the courts of Alabama were open to all the citizens of the Confederate States, and there was no law to prohibit them from resorting thereto. ... . Unless a country is actually occupied by hostile forces, and its laws and courts are suppressed, it would be giving to the courts too large a discretion, to allow them to decide when and when not the statutes of limitation are in operation, as between their own citizens."

Having, after reviewing all the grounds, decided that complainants were not excusable for not having brought suit during the war in the courts of Alabama, and were therefore barred of a part of the relief they claimed, the learned justice had next to meet the question of the liability of the executor for funds of the estate which, in 1864, he had invested in bonds of the Confederate States. In reference to this, he says: “As a general rule, in my judgment, all transactions, judgments, and decrees which took place in conformity with existing laws, in the Confederate States, between the citizens thereof, during the late war, except such as were directly in aid of the rebellion, ought to stand good. The exception of such transactions as were directly in aid of the rebellion is a political necessity, required

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by the dignity of the United States government, and by every principle of fidelity to the Constitution and laws of our common country.”

Having decided that the investment in Confederate bonds was directly in aid of the rebellion, and that therefore the executor could have no benefit from that act, the final question was, whether the executor should be liable for the funds he had so invested as good money, or for their value at the time, as Confederate treasury notes, he having received them in payment as the currency then in use. It appeared that the executor took office in March, 1858; that the debts from which those funds arose were due before the war began; and that he was urged and cited to settle the estate in August, 1860, and again in January, 1861; and “he has not shown” (says Justice Bradley) “sufficient excuse for not collecting the funds of the estate before the war commenced. Had he shown such excuse, I should have felt bound to charge him only with the value of the funds at the time when he received them, with a reasonable allowance of time for making a settlement.”

“ It may be urged” (continued the learned justice) “ that the decree of the probate court, made in May, 1864, is conclusive on the question of the executor's diligence. . . . . But a careful examination of that decree shows that this question was not passed upon by the court. .... Had the court decided the question of diligence, I should have deemed its decision on that point conclusive."

These large extracts are made, because this opinion of Judge Bradley is believed to be not yet published in any book of reports, and because of its great value in showing how fully and emphatically the eminent judges of the highest court in the land acknowledge the validity and authority (when not in conflict with the federal Constitution) of the laws, judicial proceedings, and governmental institutions of the states of the late Southern Confederacy.

In affirming the decree of Justice Bradley, in this case, the supreme court of the United States said : “ We admit that the acts of the several states, in their individual capacities, and of their departments of government, executive, judicial, and legislative, during the war, so far as they did 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 and binding. The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government, or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated, precisely as in time of peace. No one, that we are aware of, seriously questions the validity of judicial or legislative acts in the insurrectionary states, touching these and kindred subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the national government, and did not impair the rights of citizens under the Constitution." Horn v. Lockhart et al. 17 Wall. 580. In harmony with these declarations of the law is the opinion in Texas v. White, 7 Wall. 700, as explained in Huntington v. Texas, 16 Wall. 402. Quotations to this point, from these cases, are needless, and would too much extend this opinion.

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But while the validity and authority of the acts, judgments, and decrees of the several departments of the state governments, during the war, are so fully and emphatically affirmed, it is nowhere expressly held that those governments were, during that period, the rightful, legitimate governments of these states. On the contrary, in Texas v. White, supra, the chief justice, arguendo, says: “ The Legislature of Texas, at the time of the repeal, constituted one of the departments of a government established in hostility to the Constitution of the United States. It cannot be regarded, therefore, in the courts of the United States, as a lawful legislature, or its acts as lawful acts. And yet it is an historical fact that the government of Texas, then in full control of the state, was its only actual government; and certainly if Texas had been a separate state, and not one of the United States, the new government having displayed the regular authority, and established itself in the customary seats of power, and in the exercise of the ordinary functions of administration, would have constituted, in the strictest sense of the words, a de facto government, and its acts, during its existence as such, would be effectual, and, in almost all respects, valid. And to some extent, this is true of the actual government of Texas, though unlawful and revolutionary as to the United States."

The chief justice then goes on, without intending (as he says) to be full and exact, to speak of the acts of such a government which must be treated as valid, and concludes by saying: “ That acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void : " which, accompanied by the explanations made in Huntington v. Texas, supra, corresponds with what we have before quoted from Horn v. Lockhart, 17 Wall. 580.

Of the paragraph above, from the opinion in Texas v. White, without adverting particularly to its defective logic, two things are to be noted: First, the learned chief justice had previously mentioned that the governor and secretary of state of Texas, having refused to take an oath of allegiance to the Confederate States, “were summarily ejected from office :" and since he speaks in the passage of “the new government having displaced the regular authority," &c., we must infer that he had in mind this government, referred to as established by actual usurpation, when he was speaking of its status and authority; and secondly, all those acts which he says “must be regarded as invalid and void," if done by the “ actual government of Texas, though unlawful and revolutionary as to the United States," would have been equally “invalid and void," if done by the lawful and regular government, before secession from the United States.

Hence, no support is afforded by that opinion to the proposition, that the government of Alabama (which was not established by the expulsion of any person from office, and the introduction of a usurper in his place) was not the government de jure of this state during the war. tions of that opinion enable us to demonstrate that it was.

“We have already" (says the chief justice) “had occasion to remark, at this term, that the people of each state compose a state, having its own government and endowed with all the functions essential to separato and independent existence,' and that without the states in union, there VOL. IV.


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could be no such political body as the United States.” County of Lane v. The State of Oregon, 7 Wall. 76. Not only, therefore, can there be no loss of separate and independent autonomy to 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 the maintenance of the national government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible states.”

Uttered at a time of stormy excitement, when the obligations and restraints of the Constitution were little heeded, these are noble sentences. Before the war, then, and while in the Union, Alabama was endowed with autonomy. Her people composed “a state having its own government, and endowed with all the functions essential to a separate and independent existence.” The persons who exercised this government were elected into it by this people. They were not appointees of any officials of the United States. Their tenure of office did not depend upon any federal functionary. They could not be deposed, or their places supplied, by the action of any one from without the state. In fine, they composed a government, created by the people of Alabama, for the enactment and enforcement of the laws of this people, were responsible for their official acts only to this people, could be succeeded in office only by those whom this people should elect, and possessed, rightfully, de jure, all the powers of government, except those which were denied to them by the Constitution of Alabama and the Constitution of the United States.

The rightful government, thus constituted and thus endowed with the powers and faculties of administration, which Alabama had before and when the act of secession was passed, continued without change, except by the regular election or appointment of successors to the persons whose terms of office expired, down to the close of the war. If


of its members ceased to be lawful members of the government, while they acted as such, and became merely de facto members of it, or only actual members, they were then usurpers of seats of authority which belonged to others. Who were those others that were thus expelled, or kept out? Who claimed to be so? Who, if the incumbents had vacated their offices, would have had the right, or claimed that they had the right, to take and occupy them?

These are questions that cannot be answered ; and why not? Because the incumbents of those offices were not usurpers of them, but rightfully in possession.

there some dim idea, however, existing, that although this be true of the persons exercising authority, yet the state government itself, with its departments and offices, had become defunct? How could this happen?

Whether in the Union or out of it, Alabama did not cease to be a state. Some of her elder sisters were states with their separate and independent governments, before the Union under the Constitution was formed; and any or all of them might continue to be so, if the Union were utterly dissolved. To the political community denominated a state, the organization which we call government is essential; it is of the substance of it, and a part of the idea which the word expresses. And such an organization

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