Watson v. Stone

A. J. WALKER, C. J. The paper which was probably considered as a bill of exceptions, can not be regarded as such. That does not, however, affect the merits of the case; for the questions upon which the rights of the parties depend, are presented in a revisable form in the decree of the court. — Session Acts, 1857-8, p. 244. Making reasonable intendments in favor of the correctness of the decree, we find from it that the appellee, the guardian of Mrs. Watson (then a minor), on the 24th June, 1863, invested four thousand dollars of his ward’s funds in Confederate eight-per-cent, bonds; that he reported such investment to the court, within sixty days, and that he is credited with the amount- actually and bona fide paid for those bonds. We further find that the guardian had on hand, at the close of the war, eighteen hundred dollars in Confederate treasury-notes, received during the war, and after the 9th November, 1861, in payment of debts due him in his trust capacity; and that there does not appear to have been either bad faith in its receipt, or negligence in its retention. The question of this case is, whether the allowance of these two credits was proper; and the determination of this question depends upon the validity of acts done in pursuance of the third and fourth sections of the act of 9th November, 1861, entitled “An act to authorize executors, administrators, guardians, and trustees, to make loans to the Confederate States, and to purchase and receive in payment of debts due them bonds and treasury-notes of the Confederate States, or of the State of Alabama, and coupons which are due on bonds of the Confederate States and of said State.” Those sections are as follows “All guardians, executors, administrators, and trustees^ may purchase bonds of the Confederate States, or of the State of Alabama, for the estates they respectively represent, and may receive in payment of any debts due them as such, or due the estates they respectively represent, the treasury-notes of said Confederate States and of said State, the bonds of said Confederate States and of said State, and coupons which are due on bonds of said Confederate States and of said State.” “All bonds, purchased, or received as aforesaid, shall be credited to the guardian, ex — 463 — ecutor, administrator, or trustee, at the amount actually and bona fide paid for them, or at which they shall be bona fide received in payment; and all bonds so purchased or received shall be reported by the executor, administrator, guardian, or trustee, to the court having jurisprudence (jurisdiction) of the estate he represents, within sixty days after the purchase or receipt in payment of the same, unless good cause shall be shown to the court for not making the report within that time, or they shall not be so credited.” 2. We decide, that under principles of law which now prevail, and are cognizable by the present courts of this State, guardians are justified in having yielded obedience, before the restoration of the authority of the United States, to the laws above quoted, and that they are entitled to credits for investments made and money received before that time under such law. 3. One argument against our decision is, that in the eye of a tribunal acting, as this does, in subordination to the constitution of the United States, and in recognition of its authority, the existence of the State of Alabama, and, of consequence, its legislative authority, must be deemed to have ceased when the ordinance of secession was passed, and the relation of the State to the Federal government repudiated, and its officers sworn to support the constitution of another and hostile organization, and the State itself placed in warlike antagonism to the United States. We can not subscribe to the doctrine, that the existence of the State as a member of the Federal Union was destroyed. The acts of congress pending the late war, and the proclamations from the president, very clearly recognized the continuance of the State. The present president of the United States, in his proclamation of 21st June, 1865, in which he appointed a provisional governor of the State, and authorized the formation of a regular State government, very distinctly recognizes the existence of the State, but assumes that the people were deprived of a legitimate government. He therefore, by his proclamation, initiates the movement by which a legitimate government for a subsisting State could be established by the people thereof. The movement thus initiated was carried out by the pro — 464 — visional governor to its consummation, in the formation of a constitution and the election of a full corps of State officers, including the judges of this court. The orders and rules, in pursuance of which the people formed the present State government, can only be deduced from the authority of the president, as commander-in-chief of the army and navy, to secure a republican government to an existing State, whose people had overthrown legitimate government and were conquered by the United States. If the State had been reduced to the condition of a foreign country, conquered by the military power of the United States, it would scarcely be contended that the president’s authority was equal to the task which he undertook and executed. Therefore, the proposition that the existence of the State never ceased, is at the foundatien of the series of events which resulted in the bestowment of the judicial authority we exercise. An estoppel is upon the mouth of every officer of the State of Alabama, from denying the continued existence of the State as a member of the Federal Union. Whether the government of the State was a de jure government, whose acts, so far as they conflicted with the constitution, or were hostile to the United States, were void, it is unnecessary here to decide. It is sufficient for the purposes of this case, to ascertain that there was a de facto government ; and we proceed to submit the arguments in support of that position. The condition of the State during the war was this : it existed, but its government was not in harmony with the constitution of the United States, and was in actual hostility to it. There was an exercise of every function of government. There was an actual government for every purpose, in the complete exercise of all its powers. It is so plain, upon the authority of the writers on international law, that this government was a government de facto, that it seems unnecessary to cite authorities, or consume time in support of the proposition. A different conclusion would open a Pandora’s box of evils, to go forth and add to those already resting upon us. The State existed — there was a government of the State, which, though not acting — 465 — in subordination to the constitution of the United States, was a government in fact. 4. The legislative acts of a defacto government are not void, even though its wrongful existence be afterwards ascertained or decided, so far as they may have been executed, or had operation. All executed acts of a de facto government stand on as firm a basis, as if done by a de jure government. — 3 Phillimore on International Law, chapters 4, 5, 6, and 7, of part 12, m. pp. 741, 742, 743; Lawrence’s "Wheaton on International Law, note 171, p. 522; ib. 580, note 181; ib. p. 653. So far has this doctrine been carried, that upon the overthrow of the dynasty of Napoleon, and the restoration of the countries subdued by him to their legitimate sovereigns, proprietors of domains acquired under the authority of their defacto rulers were maintained in their titles to the same, with a few exceptions in some of the inferor states of Germany, whose conduct is condemned by an eminent publicist as “ discreditable.” — 3 Phillimore on International Law, m. pp. 718, 719. And in England it has been held, that treason against a de facto government could be punished after the restoration of the rightful sovereign. — Lawrence's Wheaton on International Law, 526, note. To this doctrine it seems that the courts of the United States are fully committed. During the last war with Great Britain, a port in Maine was occupied by the enemy, from the first of September, 1814, until February, 1815. During this occupation, goods were imported, and after its cessation duties were claimed by the United States upon them. The supreme court of the United States overruled the claim, holding that the sovereignty of the United States was suspended; that its laws could not be rightfully enforced there, or be obligatory upon the inhabitants, who remained and submitted to the conquerors; that by the surrender the inhabitants passed under a temporary allegiance to the British government ;■ that they were bound by such laws, and such only, as it chose to recognize and impose; and that from the nature of the case no other laws could be obligatory upon them, for where there is no protection, or allegiance, or sovereignty, there can be no — 466 — claim to obedience. — United States v. Rice, 4 Wheaton, 246. The same question was similarly ruled by Judge Story, on the circuit, in the case of United States v. Hayward, 2 Gal. 485. The proposition, that in a civil war there cannot be a de facto government, set up by the party hostile to the preexisting and established government, is not sustained, either by reason or the precedents. The validity of acts done in pursuance of the authority of a de facto government, is sustained, upon the ground that allegiance of the subject or citizen and protection of government are reciprocal, and that there is an overruling necessity that people should always have some government. It is, therefore, uniformly held, that when the authority of the rightful government is overthrown in any locality, and that of another established, for any considerable length of time, by the hands of either a foreign or domestic enemy, a de facto government exists, to the behests of which those within its jurisdiction may, and, indeed, must submit. Obviously, the reason of the rule applies with as much force, when the authority of the rightful government is overthrown by a domestic, as by a foreign enemy. We find no sanction for a distinction, referable to the source of the antagonism which results in a hostile government, in any of the books. Grotius, in his work on War and Peace, (book 1, chap. 4, sec. 15,) says: “It now remains that we may say something of him that usurps the government, not after he has, either by long possession, or agreement, obtained a right to it, but so long as the cause of his unjust possession continues. And certainly, whilst he possesses the empire, his acts may be obeyed; yet, not as they are his out of right, for he has none; but upon this account, that it is probable he who has the right to govern, whether king, people, or senate, had rather that 'his laws should, during that time, be obligatory, than that the people being without laws and judgments, there should follow the utmost confusion.” The author, after discussing the right of a private man to kill a usurper in certain cases, concludes, “in a controverted right, no private person ought to determine, but obey the present possessor and that “ thus, Christ commanded to — 467 — ‘pay tribute to Caesar ’, because the money had his image or superscription; that is, because he was then in possession of the empire.” Foster, in his Crown Cases, (p. 188,) states the law as follows: “Protection and allegiance are reciprocal obligations.; and, consequently, the allegiance due to the crown must be paid to him who is in' the full and actual exercise of the regal power, and to none other. I have no occasion to meddle with the distinction between kings da facto and kings de jure, because the warmest advocates for that distinction, and for the principles on which it hath been founded, admit that even a king defacto, in the full and sole possession of the crown, is a king within the statute of treason ; it is admitted, too, that the throne being full, any .other person out of possession, but claiming title, is no king, within the act, be his pretensions what they may. These principles, I think, no lawyer has ever yet denied. They are founded in reason, equity, and good policy.” A full discussion and historical review of the question will be found in the 4th Discourse of the same author, pages 396 to 412. The doctrine of a de facto government is fully sustained in the pages last above cited, in reference to the civil wars which convulsed England, and caused frequent alternations of government between the rival claimants to the throne. Lord Hale declares, that the right heir of the crown, during ■such time as the usurper is in'plenary possession of it, and no possession thereof in the heir, is not a king, within the act on the subject of treason ; and that such was the House of York during the plenary possession of the crown in the reign of Henry IV, Henry V, and Henry VI. — 1 Hale’s Pleas of the Crown, 104. Lawrence, an annotator on Wheaton’s International Law, supplies to us authority upon this subject, as follows: “No exception was ever taken by the most scrupulous loyalist to the acceptance by Sir Matthew Hale of a seat on Cromwell’s bench of judges; nor did it operate as a disqualification for his holding the same position on the return of Charles II. No change, it is belived, has taken place in the judicial hierarchy of France, since the tumultuous days — 468 — of the first revolution, in consequence of her dynastic and other constitutional revolutions. In reference to the implied obligation of the conquered party, it is said by the most recent American author on international law, * * * that although there is a broad and obvious distinction, between an insurrection of a conquered city, or province, against the conqueror, and a revolution, it will be found, on examination, that they both rest on the same general principle — the relation of protection and allegiance, or the reciprocity of right and obligation.” — Halleck on Int. Law, 792. The rulings in English jurisprudence generally excuse and justify obedience to de facto governments. A memorable exception is found in the execution of Sir Henry Yane, during the reign of Charles II, under the guise of a charge founded on acts done during the Cromwell government; and this is now condemned by publicists, as alike discreditable to the judges who ordered it, and to the monarch who permitted it. — 1 Lord Campbell’s Lives of the Chief-Justice, 49476. On the contrary, law-writers approve the conduct of Sir Matthew Hale, a distinguished lawyer, and a jurist of remarkable purity and ability, who, though a loyalist sincerely attached to the crown, yielded obedience to the government of Cromwell, and sat in his parliament, and in that of Richard his son, and was a judge under the usurping and under the rightful dynasty. — 1 Lord Campbell’s Lives of the Chief Justices, 530-5. The government of the United States, in all its departments, has contributed materials for argument that there was a de facto government in the seceded States. By law and proclamation, the people were declared enemies, and intercourse between them and the people of the loyal States was prohibited. The supreme court of the United States, in the Prize Cases, (2 Black, 673,) declared, that the rebellion was “ no loose, unorganized insurrection, having no defined boundary, or possession; but that it had a boundary marked by lines of bayonets, which could only be crossed by force, and that south of that line was enemy’s territory, because it was claimed and held in possession by an organized, hostile, and belligerent power.” And in the case entitled “Mrs. Alexander’s Ootton”, — 469 — (2 Wallace, 404,) it was held, without regard to the animus or conduct of a widow lady toward the United States, that because she resided in Louisiana, she was in law an enemy to the United States, and could have no standing in any of its courts. The United States exercised no actual authority of government within prescribed limits ; the people within those limits were enemies, entitled to no protection from it, could seek no redress for wrongs done them at the bar of its tribunals of justice, and could not hold intercourse with its people; and within the prescribed area, an organized, hostile and belligerent power existed. Was this power a defacto government ? If it was not, there was allegiance without protection, and a people unprotected by their rightful government, left without law, or the privilege of being governed by the power over them. Mrs. Alexander, if within the sovereignty of the United States — if at the time, for the purpose of the laws of war, a citizen of the United States — should have been permitted to prosecute her rights in its Federal tribunals. The denial of that right involves the assertion that she was, for the time being, without the sovereignty, as she was without the protection, of the United States. í Another argument advanced against our proposition is, that the Confederate treasury-notes were issued by a governmental organization in contravention of the authority of the United States, and for the purpose of making war upon it; and that, therefore, a law which gave them currency, and contributed to enhance their value, must be void. But this argument loses all force, when it is considered that the right of the State to legislate is attributed to the existence of a defacto government, which was not within or under the sovereignty of the United States, which was in actual derogation of it, and the executed acts of which are not to be tried by the constitution or policy of the United States. It cannot be argued, that the law in question was in conflict with the constitution of the de facto government, or of the political organization to which it had subordinated itself. It obviously did not impair the obligation of any contract. It gave no right ,to the debtor to tender anything but gold and silver in discharge of his debts, but — 470 — merely gave authority to receive the specified currency. It did not involve the exercise of judicial power. It is eminently legislative in its character. It is within the definition of law,' “ A prescribed rule of civil conduct.” The distinction between a judicial and legislative act has been said to be, that the former is a determination of what the existing law is in relation to some particular thing already done or happened, while the other is a predetermination of what the law shall be for the regulation and government of all future cases falling under its provisions. — Sedgwick on Stat. and Const. Law, 167. Under this discriminating definition, the act is clearly legislative in its character. If it be said that this law was unreasonable, and contrary to natural justice, we reply, in the language of this court, in Dorman v. The State, (34 Ala. 235,) “ that while it is the duty of the judiciary to confine the legislative department within the constitutionally declared limits of its power, it has no right to set aside op annul a law, upon the mere ground that it conflicts with natural right, sound morality, or abstract justice.” The decree is affirmed. Byrd, J., did not sit in this case.