Paul ex rel. Boyle v. Carpenter

RodMAN, J. Happily for us, the questions to be dealt with in this case, are not of “familiar learning” in our Courts. [507] Probably, the industry of the learned counsel for the plaintiff, has referred us to all the authorities which are accessible. But they bear only remotely on the special question in controversy here, and we must decide the case by the aid of a few generally admitted principles, and what seems to be fair and legitimate conclusion from them. The following doctrines are taken to be generally admitted. When the armies of the United States during the late war, took hostile possession of part of the territory of one of the seceding States, it ceased, in legal contemplation, to be a part of the State, during the continuance of the occupation. Nevertheless, the municipal laws for the regulation of the personal relations of the inhabitants, and of their contracts and dealings with each other, continued in force, except when they were expressly suspended by the military authority, or were opposed to the military or political policy of the United States. Dana’s note to sec. 346 of Wheaton’s International Law, (4); Cooke v. Cooke, Phill. 383; Boyle v. City of Newbern, 64 N. C. Pep. 664. The conquering power might however make any new laws that it pleased. The officers of the State were suspended from their functions, and the military authority might appoint others, and prescribe their powers and duties. It might establish Courts with such jurisdiction, civil and criminal, as it thought proper to confer. The Grape Shot, 9 Wall, 129. In short, during the continuance of the occupation, the military power was supreme, not only in fact, but lawfully under the law of nations, subject only to the law? of its own government, the rules, of natural justice and equity and the law of nations. v The question then occurs: peace being restored, and the State remitted to her former sovereign rights over the territory, what effect will be allowed to the judgments of such Courts, as between the inhabitants? .(The ordinance of October, 1865, and the act of 1866, chap, 36, are in their terms confined to the acts of officers under the Provisional Govern [508] ment, and do not seem to reach this case.) While the territory thus held ceased temporarily to be a part of the State, it did not become by the mere fact of the beligerent occupation, a territory, or part, of the United States. The laws of the United States did not act there proprio vigore ; those applicable to internal commerce did not apply ; and the inhabitants were not entitled to the rights and franchises of citizens of the United States. Dana’s note to Wheaton, ante. The territory was legally, foreign territory held by the United States, as much so, as if it had been a part of England or of Mexico, and the Courts established were foreign Courts. It follows that the effect of their judgments is that which is allowed to foreign judgments ; that is, prima facie, if not, in the absence of fraud and the like, conclusive evidence of the matters adjudicated. Bigelow on Estoppel, 185 et seg.; Duchess of Kingston)s case, Smith L. Oases, notes. To take the acknowledgment and privy examination of a feme covei't to a deed conveying her land, is a judicial act, and when duly taken, the deed is an assurance of record, like like a fine in England. Woodbourne v. Gorrell, 66 N. C. Rep. 82. The record of acknowledgment, &c., does not, of itself, pass the title to the land, or profess to do so; but it-adj udi-cates and records the fact of the wife’s free consent to the deed, which thereby becomes complete and passes the title. Hence the law of North Carolina authorizes foreign courts to take such acknowledgment. Rev. Code, chap. 37, secs. 7 and 12, provides, that when the husband and wife reside in a foreign country, her acknowledgment, &c , may be taken by an ambassador, <fec., of the United States, or by the mayor or other chief officer of any city or town. In this case it is agreed by the parties, that the Provost. Marshal had all the power in tiie premises which the military authority eould confer. Pro hac vice, he was the chief officer of the town of Newbern. Yery probably an application of the aet cited, to a case like this, was never anticipated by its authors, but we think it i; [509] is within the scope and legal intent. No question arises as to the record being only prima faoie evidence, for the ease states that in fact the feme did freely consent. Pee Curiam. Judgment affirmed.