Newton v. Bushong. ered to leave the sequestered property or effects in the possession of the debtor or other person, requiring security for its safe-keeping, and payment or delivery whenever required by the court. The amended act, however, makes a very material change in this respect. That act creates a distinction between persons in actual possession of, or having under their control, the effects of alien enemies, and persons owing debts to alien creditors. In the former case immediate payment or delivery was required to be made to the receiver without qualification or condition. In the latter case payment of interest was only exacted, and no execution could be issued during the war against the debtor who faithfully complied with the statute in giving information of his indebtedness. The reason of this distinction is apparent. A trustee, fiduciary or other person having property or money in his actual possession, or under his control, could not justly demand any delay or indulgence. There could be no valid reason why payment should not at once be made to the receiver. A mere debtor, on the other hand, might be subjected to considerable inconvenience in making such payment, and as by the laws of nearly all the States south, the collection of debts was stayed, the Confederate government extended the same indulgence to parties indebted to alien enemies. In the present case the fund was deposited in bank to the credit of the executor, and was there fore under his control. He was within the express terms of the law, and the question is, was he bound to obey it? It will be observed that these provisions were of a highly stringent character. That the Confederate government had the power to enforce them, no one familiar with the history of that period will question. It was a government of paramount force, to whose laws and mandates every citizen within its jurisdiction was constrained to yield implicit obedience. Indeed this was conceded in the argument. It was said, however, that this government was ar unlawful and treasonable organization, and no act done under its authority prejudicial to the rights of loyal citizens of the United States can be recognized as valid by the courts. In support of this view, an opinion of Chief Justice CHASE, delivered at Richmond, in Keppell's administrator v. Petersburg Railroad Company, is relied on. It seems that Mrs. Keppell was a stockholder in that company, and that a part of her stock was confiscated and sold during the war. In a suit against the company by Mrs. Keppell's administrator, the company claimed a credit for the Newton v. Bushong. dividends paid to the Confederate receiver and to the purchasers of the stock sold. The learned chief justice conceded that if the dividends belonging to Mrs. Keppell had been set apart to her specially, and the money thus set apart had been taken from the officers of the company without their consent, by the application of force, erther actual or menaced, under circumstances amounting to durese, the loss must have been borne by her. But nothing of the kind appeared. No dividends were set apart; there was no force, actual or threatened. On the contrary, the conduct of the company afforded a reasonable inference that they were not involuntary accessories to the whole action of the government. The facts of the case are not reported in the volume to which we have been referred. It is, therefore, somewhat difficult to understand what is meant by the expression "application of force actual or menaced, under circumstances amounting to duress." We are not told how far the person holding the effects of an alien enemy was required to go what amount of resistance he was expected to display in defense of property belonging to a loyal citizen of the United States. A government of supreme authority denouncing the penalties of fine, imprisonment and forfeiture upon acts of disobedience to its proclaimed will, affords as strong an illustration of "menaced force" as can well be imagined. What does it matter that such a government is unlawful? A citizen may be justified in resisting tyranny and oppression, but he is under no obligation, nor can he be required to engage in a hopeless and dangerous contest with the government under which he lives, however illegal it may be, in defense of property confided to his care either as bailee, agent or executor. In Thorington v. Smith, 8 Wall. (U. S.) 1, Chief Justice CHASE declared that obedience to the authority of the Confede rate government in civil or local matters was not only a necessity but a duty. Why should a different rule be established with respect to this executor. Had he refused to pay over the money, every one familiar with the history of that period, and the temper of the public mind, knows well the whole power of the courts and the laws would have been exerted against him to enforce obedience. What was he to do under such circumstances? How far was he to go in his resistance to the law? Was he to submit to fine and imprisonment, or would the threat of an attachment for contempt have excused him in surrendering the fund? I think the executor was well justified in refusing to incur these hazards. He wisely declined Newton v. Bushong. contest with a government which the whole naval and military power of the United States could not subdue under four years. We are not disposed, however, to rest the decision of this case upon this narrow and restricted view. It may be placed upon a higher ground. In Walker v. Christian, 21 Gratt. 291, 301, Judge MONCURE, speaking for the court, said: "It is immaterial to inquire whether the Confederate government was de jure or de facto only; and if de facto only, for what purpose and to what extent it was a de facto government. That it was such a government to a considerable extent and for many purposes, if not entirely and for all purposes, cannot be denied." It is said, however, by an eminent Federal judge that the Confederate government did not possess all the attributes of a government de facto in the highest degree. The reason he assigns, is it never expelled the regular authorities from their customary seats and functions. It never held the national capital. It never asserted any authority to represent the nation. The conclusion he deduces therefore is, it must be regarded as an unlawful organization, and all its acts and proceedings for the confiscation of the property of loyal citizens must be treated as absolutely null and void. The test here suggested may be a correct one, when applied to a people having but one central consolidated government. In such States or communities, as a general thing, the object of every revolutionary movement is to overthrow and expel the existing government, to occupy the capital and give laws to the nation. So long as the organization falls short of this result, it may be a question whether it possesses the attributes of a de facto government in the highest degree. However this may be, the test suggested cannot in justice be applied to the Confederate States. They did not attempt or desire to occupy the national capital as their seat of government, nor to give laws to the people of the United States. The whole scope and object of the movement was a separation from the northern States; the formation of an independent confederation; the establishment of a new government over their own people within their own territorial limits and jurisdiction. How eminently successful this struggle was for four years, at least, in the attainment of these objects, let the supreme court of the United States answer. In Mauran v. Insurance Company, 6 Wall. (U. S.) 1, the question was presented, whether a northern insurance company was liable for the value of a vessel captured by the naval forces of the Con Newton v. Bushong. federate government. Mr. Justice NELSON, in discussing the principles governing the rights and liabilities of underwriters in such cases, used the following language: "Still it cannot be denied but that by the use of these unlawful and unconstitutional means a government in fact was erected, greater in territory than many of the old governments of Europe, complete in the organization of all its parts containing within its limits more than eleven millions of people, and of sufficient resources in men and money to carry on a civil war of unexampled dimensions; and during all which time the exercise of many belligerent rights were either conceded to it, or were acquiesced in by the supreme government; such as the treatment of captives both on land and sea as prisoners of war, the exchange of prisoners; their vessels captured, recognized as prizes of war, and dealt with accordingly; their property seized on land referred to the judicial tribunals for adjudication; their ports blockaded, and the blockade maintained by a suitable force, and duly notified to neutral powers, the same as in open and public war." Again, elsewhere he declares: "We refer to the conduct of the war as a matter of fact for the purpose of showing that the so-called Confederate States were in the possession of many of the highest attributes of government, sufficiently so to be regarded as the ruling or supreme power of the country, and hence captures under its commission were among those excepted out of the policy by the warranty of the insured." All will acknowledge the force of this description, the accuracy and truth of the picture. If the laws and mandates of a government thus organized and powerful will not protect those who were subject to its jurisdiction and yielded it obedience, it is idle to say that the citizens or subjects of a mere de facto government in any case can claim exemption under its authority. In Thorington v. Smith, Chief Justice CHASE expresses the opinion, that the Confederate government may be classed among the governments of which those established at Castine and Tampico are examples. Let us see, then, what was decided with reference to Castine. It was an American fort captured by British forces in 1814, and held in possession of British authorities until the treaty of peace in 1815. During that period foreign goods were received into the port, under regulations established by the enemy. Some of these goods remained in Castine until after the close of the war. The United States gov. Newton v. Bushong. ernment then asserted a right to levy imports and duties upon them. The supreme court of the United States decided this claim could not be sustained; that by the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty. By the surrender the inhabitants passed under a temporary allegiance to the British government, and were bound by such laws, and such only, as it chose to recognize and enforce. Now, if the learned chief justice be correct in likening the Confederate government to the military occupation of Castine, it would seem that the same results must follow in both cases. The law of paramount force, which protected the citizen against the claim of the United States, would also protect the bailee or fiduciary, who had surrendered the fund in his hands to the supreme authority of the country. In such case it does not matter that such authority is denounced as unlawful and treasonable. The same thing may be said of every mere de facto government. It is unlawful, because it is simply de facto. The right to confiscate the property of enemies during war does not depend upon the lawfulness of the government which enforces it. It is derived from a state of war, and is called the right of war. Accordingly, when things in action are confiscated, peace being made those which are paid are deemed to have perished; but those not paid revive and are restored to their true creditors. Ware v. Hylton, 3 Dall. 227; Vattel, Book 3, chap. 8, § 138, and chap. 9, § 161. In The Prize Cases, 2 Black. (U. S.) 636, the doctrine that the parties to a civil war are in the same predicament as two nations who engage in a contest, and have recourse to arms, was fully recognized and sustained. It was also there held that the civil war between the United States and the Confederate States attained such character and magnitude as to give to the United States the same rights and powers which they might exercise in the case of a national or foreign war. Among these was the right to blockade southern ports against neutral nations, the right to treat as public enemies all persons residing within the territory controlled by Con federate authorities, and to seize and confiscate their property. These were declared to be belligerent rights resulting from a state of war, applicable alike to civil and to foreign wars. It was upon this principle the United States authorities seized and confiscated the cotton of Mrs. Alexander, a widow lady residing in the State of |