Hood v. Maxwell

1 W. Va. 219

• Court: West Virginia Supreme Court
• Decided: January 15, 1866
• Status: Published

Opinion

Brown, J.

There is nothing in the 1st objection taken by the plaintiff in error, that the court erred in not disposing of the separate demurrers to the several counts of the declaration ; because the judgment on the.verdict was a virtual overruling of all the demurrers, if it had not before been done: but I think the order of the court, though loosely drawn, and yet, when considered altogether, sufficiently shows that the court, in fact, overruled the whole demurrer, as well to each count as to the whole 'declaration.

The 2nd objection taken by the plaintiff in error in his petition, is to the 3rd count of the declaration — alleging it to be bad as a count in trover, and also bad as a count in trespass; but if not the latter, then the declaration was bad for misjoinder. That count, though informally drawn, is substantially good as a count in case, under the statute authorizing ease to be brought wherever trespass would lie : and since counts in case and trover may be joined, there is no misjoinder; and there was, therefore, no error in overruling the demurrer to the declaration on that account. It seems equally clear that the 3rd count is good under the statute, as a count in trespass; for "the distinctive features of a count in trespass are the allegations, viz., 1st, of the taking and carrying away; 2nd, with force and arms; 3rd, against the peace, &c.; 4th, the alia enorma. r Now by the statute the 2nd, 3rd and 4th features may be omitted; and the count in question contains the 1st. Thus the 3rd count might be joined with a formal count in trespass, and also with a formal count in case or trover: and no good reason is perceived why things that are not inconsistent with the same thing, should be inconsistent with each other.

It would seem to follow, as a consequence, that trespass and case may be joined, under the effect of the statute; which could not be done without it.

There is nothing in the 3rd objection of the plaintiff in error — alleging error in the court for trying the cause as to Mahaney, jointly with the other three defendants; because the judgment does not appear to have been against him, but only against the three defendants who had appeared by their attorney, and pleaded, and as to whom alone, the case was at issue, and which issue the jury were sworn to try; and not to inquire of the damages in the case of Mahaney, as to whom there was an office judgment, then not set aside. To have rendered judgment against Mahaney in such case,, would have been wrong; and this court should not adopt a construction that would defeat the judgment, when any other construction equally natural may be given — and much more reconcilable with the facts and the pleadings in the. cause. The maxim being — “ ut res magis vcileat qiiam pereat.”

Upon the 4th objection of the plaintiff in error, to the testimony of the witness who proved the price of the wheat per bushel by having the price of flour per barrel given him — without other proof that he was an expert — I have found more difficulty in arriving at a satisfactory conclusion. I think the question and answer in the 1st bill of exceptions go as far as the extremest limits will allow; but when it is considered that wheat and flour are articles of such universal acquaintance and use in this country, the presumption is that every man (not proved to the contrary,) is in some sort an expert in that matter. Not without some hesitation, therefore, I am inclined to sustain the ruling of the court, under the circumstances of the case, in permitting the question to be answered and the evidence to go to the jury.

The 5th objection taken by the plaintiff in error, is to the alleged refusal of the ‘court to give the instructions asked by him on the trial, being fourteen in number.

It does not expressly appear whether the court gave or refused the last six of them: the inference is the court gave them: but whether so or not is wholly immaterial, since there is no exception taken for such refusal; and in the absence of such exception the party must be taken to have acquiesced in the ruling of the court below — whatever it was — in that particular. The first eight of said instructions were refused, and the refusal excepted to. And here, before proceeding to consider the same, I will take occasion to suggest for the consideration of counsel generally in preparing bills of exceptions, how far the appellate court is bound to revise the rulings of the court below, when the record shows the case of a batch of instructions asked and refused, and a general exception taken to the refusal of the whole, but not several of separate exceptions taken for the refusal of each; even though it appear that some of the instructions so refused were good, and some bad. But as no such point has been made in this case, I do not feel called upon to express any opinion on the subject affecting the case.

The 1st of said instructions was rightly refused, because it assumes as a fact that, the plaintiff in the court below had. sold the wheat and flour'in question to defendant, Johnson..

The 2nd instruction was also rightly refused, because it assumes that, by giving an order on the defendant to pay for the wheat and flour, the plaintiff in the court below treated it as a sale, &c.

The 3rd, 4th, 5th, 7th and 8th of said instructions were rightly refused, because they do not propound the law fully; and are substantially, as far as proper, embraced in the instructions given by the court.

. The 6th and last objection taken by the plaintiff in error, is to the ruling of the court in giving the 1st instruction asked by the plaintiff in the court below; upon the ground that it did not sufficiently inform the jury that they must' be satisfied that the property in question was the property of the plaintiff; but I think that does sufficiently inform the jury on that point; and when taken in connection with the other instruction given by the court, which informed the jury that, if they believed the defendants “unlawfully carried' away the property of the plaintiff mentioned in the declaration,” &c., there is no room left for doubt or misunderstanding; and that there was, therefore, no error in the ruling of the court in that particular.

The defendant’s 6th instruction was rightfully refused, because the pretended authority of Mr. Letcher as Governor of Virginia, was no justification under the circumstances. In considering this subject, the court is bound to take judicial notice of the state and condition of the country at the time specified, viz: May, 1861; as well as prior and subsequent, so far as the same have relation to the case under consideration.

It is known, therefore, that at the time specified, hostilities existed and continued, and at least a quasi war was waged by a vast number of disloyal citizens against the United States; that those persons had usurped the powers and functions of several of the State governments; and among the rest of Virginia; and had confederated together in powerful organization to dissolve the Union, subvert the national government, and establish a separate and independent nation by force of arms. To that end they were carrying on open hostilites by military forces upon the most comprehensive scale. Into that combination and confederacy, His Excellency, John Letcher, Governor' of Virginia, and as such Governor, with many other officers of State and a portion of the members of the legislature and convention entered. In the execution of the common design, they acted, and under his authority the defendants, acting as part of that hostile military force, committed the supposed grievances complained of; and now here vouch his authority as their justification.

The convention at Hichmond, sitting in secrecy, had passed the pretended ordinance of secession, and negotiated a pretended treaty with the so-called confederacy; and in conjunction with the Governor, had taken steps to put the commonwealth on a war footing to resist the government of the United States in suppressing the insurrection and rebellion, while they invited soldiers of South Carolina, and other rebel States, in the service of the so-called confederacy, to enter the State and in connection with the Virginia troops hold military occupation of the commonwealth. This instruction, therefore, involves the consideration and determination of tbe grave and momentous question which has so recently agitated the country from centre to circumference. That is, whether a State has a constitutional right to secede from the Union. For if it has, then it follows that the seceding State is no longer a member of the Union, and may confederate as it pleases; nor do its citizens any longer owe allegiance to the national government, nor could they of right claim its protection under the constitution, however averse any of them might be to the change. If such right exists the convention of Virginia, at Richmond, exercised it, and the ordinances of the convention — the acts of the rebel legislature — the proclamations and orders of the Governor, and the acts of the officers, including the conduct of the defendants complained of, carrying it into effect, were justifiable and lawful. But if no such right exists; if the ordinance of secession, with all its concomitants, was unconstitutional and void, then was the authority void under which the defendants acted. And he who acts under a void authority must take the consequences, especially if in so doing he invades the rights of others. It is true that this absorbing and momentous question, after having been discussed in the senate hall, the cabinet chamber, and on the hustings, with as much zeal and ability as perhaps any other ever was, has been definitely decided by the legislative and executive departments of the national government and by most of the States also. It has also been tried at the grand assize of popular suffrage, and a true verdict rendered by the American people. And last, but not least, it has been tried and determined by the wager of battle. The courts too, it would seem, have frequently proceeded upon the assumption that no such light existed. Yet after all, no case is remembered, in which the judiciary has been forced, by the current of litigation, to consider and determine definitely this guestio venata.

It may be unfortunate that the judiciary first called to pronounce upon it, should be that of almost the youngest State in the Union; a State that has been called the child of the storm, and whose birth was the result of the convulsions produced by the question under consideration. I approach the subject, therefore, with diffidence and embarrassment; but with a firm resolution to shrink from no duty however delicate, and with a consciousness of no other desire than to do right.

Q-overnmcnt is a necessity of man’s nature, and not a mere caprice, however wisdom and experience may mould its structure or vary its application. Its perpetuity springs from its continued necessity, and is therefore an essential element of its nature. Hence, no people since the. formation of the world have been known to exist without government in some form; and no goverment, not merely provisional, is known to have been formed for a limited period. The compact upon which government rests, whether between people or States, (or both, as in our ease) is very different in its nature from that on which partnerships between individuals, and cartels, protocol's, treaties, and alliances between governments stand. And perhaps the most striking feature of the difference is, that one is perpetual, the other temporary, in its nature and object.

The reservation of a right in any constituent party, to revoke at pleasure, without the consent of the rest, the powers of government delegated in perpetuity, would be no less inconsistent with the nature and object of the governmental compact, than with the proper exercise of the governmental functions. Such a right, if not so expressly reserved, could not be implied. Otherwise, every grant, however positive and express, might, by implication, conceal a reserved right to revoke it at the pleasure of any of the numerous grantors. An absui’dity, so absurd, that like an axiom, its force is felt and its truth acknowledged without proof or argument.

The articles of 'confederation cemented a union of associated States; but the constitution of the United States constitutes a government of the people. To the former the citizens of the several States owed no allegiance, but only to the States. To the latter their allegiance is direct and immediate. The laws of the former spoke not to the people, but only to tbe States; tbe laws of-tbe latter command botb States and people. Tbe former was dependent on tbe States to execute its resolves; tbe latter asks no extrinsic aid, but executes its mandates by its own. inherent powers. Tbe former was “ a perpetual union,” tbe latter is “ a more perfect union.” Tbe former provided for our common defense; the latter in addition “established justice, and insured domestic tranquility.” Tbe former guaranteed tbe rights of tbe States; tbe latter, in addition, also secured tbe blessings of liberty to tbe people and their posterity.

Tbe constitution is tbe work of tbe fathers of tbe republic of which all are proud. It is tbe bond of union, perfect in its nature and perpetual in its duration. From it springs tbe obligations of tbe States and the allegiance of tbe citizens; while its Eegis guards all alike against external force and internal violence.

As a judicial question there is none better settled than that the citizen cannot withdraw bis allegiance without tbe consent of tbe government — expressed or implied; and if no one citizen possesses such right, tbe addition of any number of others similarly circumstanced could not confer what none possessed. Nor could a State release its citizens from that allegiance, since tbe State itself is but tbe fractional part of a magnificent whole, and in its collective capacity is only the aggregation of its individual citizens; all of whom, as just shown, are alike incapable of effecting their own discharge, whether taken individually or collectively. But secession, if allowed, severs tbe allegiance of tbe citizen, and makes him an alien with or without his consent. It defeats tbe object of tbe constitution, destroys its perfection and limits its duration; it is wholly inconsistent with the powers granted under it. Such a right, therefore, if it exist at all, must be expressly reserved in the constitution. But no such anomaly is to be found therein. Can it be supplied by implication, upon tbe supposition that a power so extraordinary, inconsistent and subversive of-the' whole instrument, could have been overlooked or entirely ignored, if intended to be reserved, by tbe wise men who framed that great charter of human liberty? Could it have been intended that all its powers, provisions and guarantees might be defeated by a concealed implication, which none ever mentioned, if any foresaw? It requires the credulity of delusion, with the aid of the aphorism “that the wish is father to the thought,” to believe it. Neither was there any such right of secession reserved by any of the States in their respective ratifications of the constitution. The declaration of the convention of Virginia is clear and unequivocal, and precludes the conclusion. It asserts positively that, “ the powers granted under the constitution are derived from the people of the United States, and may be resumed by them whensoever perverted to their injury or oppression.” This is plain and practical. The people of the United States, granted specified powers for defined objects, with the right expressly reserved to resume those powers when the objects fail, and the powers shall be perverted to their injury or oppression. Such a reservation, is consistent with the grant, and if not expressed would be implied. But these statesmen, cautious to leave no room for doubt, expressed what they understood and determined.

Plain as the language is, like the constitution itself, it has not escaped misconstruction; but has been perverted by the advocates of secession to the support of that heresy: though it is believed, not without some qualms of conscience. Por when those advocates went through the forms of a mock ratification of the constitution of the so-called confederacy, they resorted to language very different, clear and unequivocal, to express there the reserved right of secession. The language is, “but this constitution is ratified and adopted by Virginia, with the distinct understanding on her part, that she expressly reserves to herself the right, through a convention representing her people, in their sovereign character, to repeal and annul this ordinance, and to resume all the powers hereby granted to the confederate government, whenever they shall, in her judgment, have been perverted to her injury or oppression.” There is no room to doubt the intent of the parties in the one case any more than in the other; for both are equally clear and explicit. The one sustains secession, the other excludes it. If any doubt, let him look first on this picture, then on that.

That the ordinance of secession was . repugnant to the constitution of the United States, is so plain that no one of ordinary intelligence and common honesty could, as it would seem, by possibility ever entertain a doubt. For that constitution declares that, it is the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding; and all officers were sworn to support it. It declares also, that the United States shall guarantee to every State a republican form of government, and protect each State against invasion and domestic violence; but secession repudiates this power and duty.

The constitution declares that, “the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States;” but secession abrogates these rights. The constitution provides that treason against the United States shall consist in levying war against them, or in adhering to their enemies, giving them aid and comfort: but secession commands and compels the citizen to commit that highest of all crimes, on pain of confiscation, banishment and death.

The constitution says that, “no State shall enter into any treaty, alliance or confederation:” but secession did each and all of them in defiance of it. The constitution declares that, “ the President of the United States shall be commander in chief of the militia of the several States when called into servicebut secession said the president of the so-called confederacy only shall be such commander of the minor half. The constitution provides that, “ Congress shall have power to levy and collect taxes;” “To regulate commerce among the several States;” “To establish post offices and post i’oads;” “To constitute tribunals,” &c.; “To raise and support armies:” “ To provide for calling forth the militia to execute the laws of the Union, suppress insurrection and repel invasion:” but secession answers to all these express and important grants of sovereign power — not in this State, nor in that, nor the other of the pseudo confederacy — no, not at all.

Recognizing the supremacy of the constitution, and laws made in pursuance thereof, the courts of the Union and of the several States, have uniformly held all acts repugnant thereto, to be utterly void; whether authorized by the laws or constitution of any State to the contrary notwithstanding. The instances of this kind have been numerous — their enumeration here is unnecessary.

The correctness of these rulings, the advocates of secession even, could not deny: but to avoid the force and obligation of the constitution, and the oath to support it, a resort is had to a subterfuge, which however fallacious, has been too successful in deluding many honest but prejudiced men, by assuming that a secession ordinance by a convention of the people of a State, was of higher import and obligation than a State law, or even than a State constitution : and was not therefore prohibited by, nor repugnant to, the constitution of the United States. And this subterfuge and delusion has been a fruitful source of untold evils: but has it any foundation in fact or reason? It would stultify the framers of the constitution, to suppose that in their grave efforts to provide a sure bond of union for the States, intended to be perpetual and perfect, they did their work so imperfectly as to leave a loop-hole through which any factious or recusant State could slip out at pleasure or caprice, by first changing a word, or calling the thing prohibited by another name. Instead of a law or a constitution of a State, call it a secession ordinance of a State convention, and at once the gordian knot was cut and the whole difficulty solved, satisfactorily. "Wonderful sesame! that can by a magic word unlock the constitution and let the States slip out; that can cut the cords of individual allegiance and let the people go; that can absolve the oaths of all and give the conscience peace; but most of all, the wonder is, how easily it is done, by simply changing a word. Just call the thing by a different name and the deed is done — the end attained. Columbus did notmore astonish and delight the baffled philoso-pbers of bis day, by tbe simplicity and ease witb wbicb be stood tbe egg on its little end, than these savans of secession did their deluded followers by their verbal solution. Well might President Tyler; on a certain memorable occasion, and in reference to another important constitutional difficulty, urge upon his cabinet that “there was much in a name.” But let us deal with the substance rather than the sound; the thing rather than the name. What is a State constitution, but the most solemn ordinance of a State convention, ratified by the people of the State? And what is this secession -ordinance but a "secret ordinance of the State convention; and for the sake of argument only, let it be admitted to have been ratified by the people- of the State, fairly, freely and deliberately, and without duress, force or fraud. The agencies by which the organic acts in both cases are prepared, proposed and passed, to-wit: the conventions, the people by which they are adopted and ratified, and the power by which they aré ordained; are the same. How, therefore, can one be more potent than, the other, to annul the supreme organic law of the land? To the plain common sense of. mankind, it would seem impossible, ridiculous, absurd.

Upon the most mature consideration of the whole subject, I am brought to the firm conclusion that, the right of secession is a cant myth — an ignis fatuus — a dangerous delusion — a costly experiment — a miserable abortion — a doctrine that has no foundation, save in the disordered imaginations of its votaries, and has been fraught with more evils than any other ever invoked; that the secession ordinance in question, was repugnant to the constitution and therefore void; and that all who acted under it, or in execution of it, acted without authority, and are responsible for their conduct to those concerned.

But again, the loyal people of Virginia by their delegates in convention assembled in the city of Wheeling, declared and ordained that, all the ordinances, &c., of the Richmond convention, were illegal and void, and without the authority of the people of Virginia constitutionally given, and in derogation of their rights. The action of that convention, which is destined to mark an epoch in our existence, has been recognized and accepted by the people of the old State and the new — by the east and the west — and also by the government of the United States in all its departments, legislative, executive and judicial. That convention was big with the fate of two Virginias, if not of the Union. Its action was momentous beyond a parallel. Its legitimacy is now beyond cavil. It is too late to question its validity, if any felt disposed, and certain it is that I do not.

"Whether, therefore, we consider the secession ordinance and action of the Richmond convention, as void because repugnant to the constitution of the United States, or void by the declaration and mandate of the Wheeling convention, it can furnish no authority to justify or authorize Mr. Letcher, or Colonel Porterfield, or the military command under him, of which the defendants were part, to carry on hostilities against the United States; and in the execution of such design, to seize and appropriate the property of the plaintiff.

I think, therefore, that there was no error in the refusal of the court to give the 6th instruction asked by the defendants in the court below; and that the judgment; ought to be affirmed.

The other judges concurred with Brown, J,

Judgment Affirmed.