Bishop v. Jones & Petty

28 Tex. 294

• Court: Texas Supreme Court
• Decided: December 15, 1866
• Status: Published

Opinion

Moore, C. J.

—On the 8th clay of March, 1861, the appellees, who were citizens of Bastrop county, brought suit in the District Court of said county against the appellants, on a note payable to Cunningham & Crocheron or bearer, and to enforce a mortgage and vendor’s lien, which they claimed to hold for the security of the amount due on said note. On the 16th day of April, 1861, the appellants filed an amended answer, in which they alleged that the appellees have no right, title, or interest in said note; that they hold the mere possession of the same, and have the naked legal title to it for the use and benefit of alien enemies; that said usees and beneficiaries of said note reside in and are citizens of the United States of North America; that said United States is, and at all times since the institution of the suit against them had been, in a state of war against the Confederate States of North America, &c.

On the trial of the cause, appellants proposed to prove by one of the appellees that they were not the real owners of the note, but held merely the naked possession thereof for the use and benefit of parties who were, and had been since the institution of the suit, resident citizens of the United States of America. The evidence was excluded by the court, because the appellants had not proved the existence of war between the United States and the Confederate States, notwithstanding it was insisted by the appellants that the court should take judicial notice of the existence of such war; and for the purpose of showing it to be a matter within the judicial knowledge of the court, they referred to, and proposed to read as evidence to the court, the current newspapers of the day. Appellants, on the 17th day of April, the day after judgment was rendered against them, asked for a new trial on the ground of newly-discovered evidence. This newly-discovered evidence consisted solely of New Orleans and Galveston newspapers, which reached the town of Bastrop (where the trial of the cause was had) after its conclusion, in which was contained an announcement of the demand by General Beauregard for the evaeution of Port Sumter, and its 'subsequent bombardment by the order of the secretary of war of the Confederate States, together with the other transpiring events of that period. The motion for a new trial was refused. This ruling of the court, and its exclusion of the testimony offered on the trial to which we have adverted, are relied upon as the leading grounds for a reversal of the judgment.

The right of prosecuting suits by citizens of one friendly Power in the courts of another is a well-established rule of international comity. This, however, is, and in the very nature of things can only be, a rule for peace. War terminates all friendly intercourse between the citizen of hostile States. There cannot be, as has been frequently said, “a war for arms and a peace for commerce.” To suffer individuals to carry on commercial or friendly intercourse while the two governments are at war, would be placing the act of the government and the acts of individuals in contradiction with each other. Certainly such antagonism by the citizen to his government cannot receive the sanction or encouragement of its courts, much less will they become instrumental in giving aid and proteetion to its enemies. It is therefore not to he disputed, as a general rule, that the resident citizens of one belligerent cannot bring or prosecute a suit in the courts of the other. There are, however, certain exceptions to this general rule, as well established as the rule itself. Although the ruling of the District Court was not based upon this ground, it may not be amiss for us to inquire if the present suit did not come within the exceptions to the general rule, if indeed the court 'should have taken judicial notice that war existed between the United States and the Confederate States when the question was presented for decision in the District Court.

As we have seen, the general rule depends upon and grows out of the fundamental principle, that when the sovereign power of a State declares war against another State, it implies that the whole nation declares war, and that all the subjects or citizens of the one are enemies to those of the other; and all intercourse and transactions with those who are enemies of the State is illegal, and should be condemned, because it contravenes the object and policy of the government, embarrassing the operation of war, and lessening the ability and efficiency of the government in its prosecution. But when the sovereign sanctions the act, or such sanction must necessarily be inferred from his act, this principle is not applicable, and the rule is not enforced. Thus, ransom bills and bills of exchange drawn by a prisoner of war in favor of an enemy for his necessary support while detained as a prisoner are held to be valid contracts. (Antoin v. Morehead, 6 Taunt., 237.) So, also, when a particular trade or intercourse is carried on under a special permit from the sovereign; and likewise when an enemy remains in the country, or comes to reside therein by special permission of the government after the breaking out of hostilities. In such cases he is unquestionably entitled to protection in his person and property, and may seek redress for an injury to either in the courts of the country wherein he is thus residing pending the war. (Sparenburgh v. Bannatyne, 1 Bos. & Pull., 163; Wills v. Williams, 1 Lord Raym., 282; 1 Lutw., 34; 1 Salk., 46.) And it has even been held, when an alien continued to reside in the country after the commencement of hostilities, that the courts will presume he does so by permission of the government. It is also said that it may now be regarded in accordance with universal public law, that aliens who have come to reside in the country during peace shall be allowed a reasonable time after the inception of war to wind up their business and remove from the country with their property and effects, and during the time they thus remain they are entitled to protection in their persons and property, and may either sue or be sued. (Clark v. Morey, 10 John., 72.) It is also to be observed, that the act of Congress of the 6th of July, 1798, authorized the President of the United States, in case of war, to direct the conduct to be observed towards the subjects of the hostile nation, being aliens, and within the United States, and in what cases and upon what security their residence may be permitted; and in reference to those who are to depart, it declares that they shall be allowed such reasonable time as may be consistent with public safety and according to the dictates of humanity and national hospitality, “ for the recovery, disposal, and removal of their goods and effects, and for their departure.” The statutes of the United States, passed before the secession of the States forming the confederacy, were as obligatory on these States subsequently to that time as they had been prior thereto, if not inapplicable on account of their changed political condition. It might, no doubt, have been justly urged, in view of the attitude of the Government of the United States towards the Confederate States, that there would have been no just ground of censure against the confederacy if the immunities of this statute had not been extended to citizens of the United States residing in the confederacy. But this in no way militated against the power of the President of the Confederate States to exercise the functions conferred by this law, if, indeed, he was not authorized to do so by an act of the provisional congress of the Confederate States; especially as it is, as we have seen, nothing more than the generally recognized public law upon the subject. PTor should the court have presumed, in advance of the action of the Government, that this general usage of civilized nations would be violated by the Confederate States. To have done so would have been very wrong in theory and false in fact. The action of the confederate authorities went to the full extent of the rule by which the most enlightened and liberal nations are guided. The President of the Confederate States, by a proclamation issued shortly after the commencement of the war, fixed the time within which alien enemies should leave the country. Until the expiration of that time, they remained with the consent and under the protection of the government, and could therefore sue and be sued.

It may be insisted that, as the beneficiaries in this suit are alleged to have been resident citizens of the United States, it is to be presumed they were not at that time in the confederacy, and therefore they are not protected by the proclamation, which applied only to such persons as were within its jurisdiction. To this it is sufficient to say, that the parties by whom the suit is brought were here. They did not come in violation of belligerent obligations into the country after the commencement of the war. The reason why a suit cannot be. sustained by a citizen for the benefit of .an alien enemy is, to prevent fraud upon the court, because what cannot be done directly should not be permitted indirectly. If, then, the jnincipal might have recovered the property to which he was entitled by suit in his own name, for the purpose of removing it from the country, we see no reason why this.could not be done by his agent.

The question upon which the case was decided in the court below seems to be equally well settled against the appellants. Could the court say, as a matter of judicial knowledge, on the day the motion for a new trial was overruled, that war existed between the Confederate States and the United States? We answer this question emphatically in the negative. Viewed in the light of subsequent events, we may and do in the popular sense speak of the war as having commenced at a period anterior to that on which this case was acted upon in the court below. But when we thus speak, we may and generally do attach a very different signification to the word from that which must be given it by law. War does not exist merely on the suspension of the usual relations of peace. Commerce may be interdicted without producing it. Reprisals and embargoes are forcible measures of redress, but do not, per se, constitute war. Hostile attacks and armed invasions of the territory or jurisdiction of a nation, accompanied by the destruction of life and property by officers acting under the sanction and authority of their governments, however great and flagrant provocations to war, are often atoned for and adjusted without its ensuing. War in its legal sense has been aptly defined to be “the state of nations among whom there is an interruption of all pacific relations, and a general contestation of arms authorized by the sovereign.” It is true, it may and has frequently in latter times been commenced and carried on without either a notice or declaration. But still, there can be no war by its government, of which the court can take judicial knowledge, until there has been some act or declaration creating or recognizing its existence by that department of the government clothed with the war-making power. In the Confederate States, congress was invested with this power. Until it acted, however great the provocation, or imminent its probability, the courts could not say that amicable relations might not be restored without actual war. If congress, when it acts, should declare the war to have existed anterior to its declaration, the courts will follow the declaration; and, if the question should be subsequently brought before them, the courts will follow the declaration, and take judicial notice of its existence from the time thus fixed. But for them to attempt to declare its- existence as a matter of legal knowledge, before any action has been taken by the war-making power, would be a most flagrant violation of duty. This was not done by the congress of the Confederate States until subsequently to the time when, it is urged, the District Court should have said, as a matter of judicial knowledge, that the war had commenced.

We have answered the question here presented, as it was discussed, as if the late war had been between two independent Powers, and there being, on this hypothesis, no error in'this ruling, we have not deemed it necessary to inquire whether the character of the Government of the United States and the relationship of the States of the Union to it require the application of different principles from those by which it should have been decided if the Confederate States had succeeded in their attempt to sever their connection with the United States. But we may well say, if there were any error in the ruling of the court, though, as we have seen, there was none, it has not and cannot ymrk any injury to the appellants. Their plea was merely dilatory, and would only have stayed the appellees’ suit until the termination of the war. Though it should be upheld and sustained'in cases to which it is applicable when properly presented, yet it is called in the books an “odious plea,” (Clark v. Morey, supra,) and it will not, therefore, be aided by construction. To reverse the judgment on account of the action of the court in this matter would be to send the case back to the District Court, not now to correct its ruling, but to render again the 'very judgment which it has already given. The error, if one, is now immaterial, and the judgment, it seems, should not therefore be reversed.

. It is assigned for error, that the judgment of the District Court, decreeing the sale of the property upon the mortgage and vendor’s lien, does not follow the statute. The judgment directs an order of sale to issue to the sheriff of Bastrop county, “commanding him to seize and sell” the property “ according to law, and apply the proceeds to the satisfaction of this judgment.” The statute (O. & W. Dig., Art. 504;) provides that judgment shall be rendered for an order of sale to the sheriff, “directing him to sell” the property “ as under execution.” "We think the judgment is substantially, though not literally, in conformity with the statute. If the sale had been directed “ as under execution,” the sheriff must look to the law for his guide in performance of the duty enjoined upon him. Although he is not referred by the judgment to the law regulating sales under execution for the rules by which he must be governed in the enforcement and carrying into effect the order of sale, yet as there is no other law regulating his official action in the discharge of such duties, it cannot be said that there is any uncertainty, or that he would have been at any loss in determining by what law he should be guided in carrying the order of the court into effect.

It is also complained that the judgment is between §5 and $6 larger than it should be. Ho calculation has been furnished us, and we will not undertake to make one to ascertain if this be the case, especially as the amount is so trivial in comparison with the debt. If the excess had been shown, unless remitted, it would have been corrected by the court, in accordance with its usual practice, at the cost of the appellants.

Ho error having been shown in the record for which the judgment should be reversed, it is

Affirmed.