Keppel v. Petersburg R.

14 F. Cas. 357, 26 Leg. Int. 36

• Court: U.S. Circuit Court for the District of Virginia
• Decided: May 15, 1868
• Status: Published

Opinion

CHASE, Circuit Justice.

This is a suit by the administrator's of a stockholder of the Petersburg Railroad Company, who was a citizen of Pennsylvania, and resided in the city of Philadelphia during the late Rebellion, to compel that corporation, created by the statutes of Virginia and North Carolina, and having its principal office for business at Petersburg, to account for dividends declared by the company during 1801, and subsequently before the filing of the bill on November 22, 1800.

According to the statement of the answer, admitted to be true by written stipulation of counsel, Catharine C. ICeppel, before the Rebellion. was the owner of two hundred and three shares of the company’s stock, and subsequently, by further issues of stock, became entitled to one hundred and one additional shares, making a total of three hundred and four shares.

After the secession of Virginia, and organization of the Southern Confederacy, the company submitted, without opposition, to the control of the Confederate government set up over North Carolina and that part of Virginia in which the road lay, in hostile exclusion of the constitutional authority of the United States. Subsequently, on August 30, 3801, the Confederate congress passed an act for the sequestration or confiscation of all property found within the rebel states belonging to loyal citizens of the other states of the Union.

Under this act, such proceedings were had by a district judge holding a court under the pretended authority of the Confederate government. and by a receiver appointed by him, that ninety shares of Mrs. Keppel’s stock were sold to sundry purchasers, and dividends were paid on the whole number of shares, partly to these purchasers and partly to the receiver.

These dividends amounted to one hundred and nine per cent., and were paid at different times from July, 1801, to November, 1804, inclusive. After the overthrow of the Confederacy, the sales made by the receiver were treated as nullities by the railroad company. Script for the one hundred and one additional shares was sent to the complainants, as administrators, and if dividends had been subsequently declared, payment would have been made to them in the whole three hundred and four shares.

It appears from this statement that the company itself regarded the confiscation act as null and of no force, so far as the sales of the ninety shares were concerned. That sale was treated as a nullity, and the title of the purchasers under it as worthless. But the company claims — 1st. That payments of dividends, made under the same act, to the receiver and the purchasers, must be upheld as valid payments; and 2d. If this claim be disallowed, then that the liability of the company was only to pay, on demand, the dividends of Mrs. ICeppel, in such currency as was necessarily received, and no demand having been made except by the commencement of this suit after that currency had become wholly worthless, no decree can now be made against the company.

The first of these propositions rests upon the premises that the Confederate organization was a government de facto, and that acts in obedience to its authority must be presumed to have been done under the compulsion of superior force, by reason of which the actors are discharged from all ulterior responsibility. Of this it may be observed, in the first place, that the term de facto, as descriptive of a government, has no fixed and definite sense.

It is, perhaps, mast correctly used as signifying a government completely, though only temporarily, established in place of the lawful or regular government, occupying its capital and exercising its power. Examples of this kind of de facto governments are found in English history; some in the violent seizure and temporary possession of royal power, and one, so conspicuous that the world can never lose the sense of it, in the establishment of the commonwealth and the protectorate in place of the monarchy.

In this sense certainly, the rebel government was never a de facto government. It never held the national capital. It never asserted any authority to represent the nation. It was only what it professed to be, a revolutionary organization, seeking to establish a Confederacy of states, disconnected from the United States, and dependent wholly for success upon the success of the revolution.

The term, however, is often used, and perhaps more frequently, in a sense less precise, as signifying any organized government established for the time ■ over a considerable territory, in exclusion of the regular government. A de facto government of this sort is not distinguishable in principle from’' other unlawful combinations. It is distinguishable in fact mainly by power, and in territorial-control, and by the policy usually adopted in relation to it by the national government.

Treason in England is not committed against the lawful government by acts of hostility done in support of a de facto government, strictly so called. This is the rule established by the statute 11 Hen. VIL, passed with reference to the frequent changes in the royal authority during the civil wars of York and Lancaster.

And the reason of the rule, doubtless, extended to acts done under the parliament and the protector, while in possession of the supreme authority in England; though the benefit of it was denied to many, and in a most conspicuous instance to Sir Henry Vane. And it may be well doubted whether in this country treason against the United States could be committed in obedience to a usurping president and congress, exercising unconstitutional and unlawful power at the seat of the national government.

Bjit it can not be maintained that acts against the king committed in obedience to a usurper temporarily in possession of a part of the kingdom, would not be. treason in England; or that levying war against the United States by persons, however combined and confederated, (even though successful in establishing their actual authority in several states), would not be treason here.

What effect, then, is to be given to acts done under the authority of an insurgerft body, actually organized as a government, and actually exercising the powers of a government, within a large extent of territory, not merely in hostility to the regular and lawful government, but in complete exclusion of it from the whole territory subject to the insurgent control? It is not easy to give a general answer to this question. On the one hand it is clear that none of its acts in hostility to the regular government can be recognized as lawful; on the other, it is equally clear that transactions between individuals, which would be legal and binding under ordinary circumstances, can not be pronounced illegal and of no obligation, because done in conformity with laws enacted or directions given by the usurping power. Between these extremes of lawful and unlawful, there is a large variety of transactions to which it is difficult to apply strictly any general rule; but it may be safely said that transactions of the usurping authority, prejudicial to the interests of citizens of other states excluded by tile insurrection and by the policy of the national government from the care and oversight of their own interests within the states in rebellion can not be upheld in the courts of that government.

In the case before us. for example, Mrs. Keppel was the undoubted owner of three hundred and four shares of the stock of the Petersburg Railroad Company, and was clearly entitled to her just proportion of its earnings. But she was denounced as an alien enemy by the Confederate government. She was excluded from all control of her stock, and all receipt of dividends. And more than this, the stock was sequestrated, or rather confiscated, and partly sold, and the dividends paid to the purchasers, and to a person called a receiver, appointed under the rebel authority. Can it be maintained that her right to the dividends upon her stock was defeated by these transactions? We think not. We can not regard the Confederate government as a defacto government in any such sense that its acts are entitled to judicial recognition as valid. On the contrary, we are obliged to regard it as a combination or unlawful confederacy organized for the overthrow of the national government, and its acts, for the confiscation or sequestration of the private property of the citizens of the United States, as null and of no effect. The appointment of the receiver, the sales of the stock, the payment of the dividends, must all be regarded as part of the process of sequestration or confiscation, and all as equally void.

But it is said, admitting the character of the Confederate government, in view of the law, to be such as has been stated, that the company was compelled to pay the dividends to the parties who received them, and by this compulsory payment was discharged of responsibility to the lawful proprietor of the stock.

This proposition, asserts the exemption of the company from liability on the principle vis major: that there can be no responsibility where the loss is occasioned by irresistible force. And it may admitted that if the diviuends belonging to Mrs. Keppel had been set apart to her especially, and the money thus set apart had been taken from the officers of the company without consent on their part, by the application of force, either actual or menaced, under circumstances amounting to duress, the loss must have been borne by her. After such an appropriation of dividends, the company would have become, perhaps, the bailee of the stockholder for her proportion, and an excuse which would avail a carrier for hire for non-delivery, might excuse the company for non-payment.

But we cannot agree that this rule is fairly applicable to this case. It does not appear that there was any setting apart of dividends, or that any force was actually used or threatened. On the contrary, the action of the company in employing their railroad in the service of the Confederate government, and the absence of any protest on the part of any of its officers against the unlawful payment of the dividends, afford a reasonable inference that they were not involuntary accessories to the whole action of that government. No reasonable application of the principle relied upon, therefore, will excuse the company from its liability to its stockholders. And public policy clearly requires the protection of stockholders in the loyal states from any application of this principle not clearly demanded by the law. Mrs. ffeppel was deprived of the immediate security, afforded to her rights by the national government, by the Rebellion. It is tire duty of that government, since that Rebellion is suppressed, to afford her, as far as practicable, ultimate security. On the other hand, it is the obvious dictate of sound policy that no encouragement should be given to rebellion by relieving parties within rebel control of private responsibilities, except in very clear cases of compulsory force, without their direct or indirect consent.

NOTE. As the preceding is a case of special interest and importance, the case of Newton v. Bushong [22 Grat. 484. (528], decided by the supreme court of appeals for the state of Virginia, at.the fall term. 1872. involving the same questions, is appended lure. See. also, (he case of Perdicaris v. Charleston Gas Light Co. [Case No. 10.974]. Newton v. Bushong — B.. a resident of Indiana, during the late war. had a legacy which bad been left him which came to the hands of N.. executor, in .Inly. 18(51 (and which was deposited in bank to the credit of N„ executor), and reported by the executor to a confederate receiver and confiscated under the confiscation acts of the Confederate states. Held: First. That in a suit by B.. against N.. since the war, to recover this legacy. N. was not liable. Second. That the citizens of the Confederate States were obliged to obey its laws and mandates, just as much as the citizens of any other government are, and that “contracts made, rights vested, payments made, liabilities incurred, and duties and obligations performed” under those laws are as valid and binding as those made under any other government. Third. The Confederate government was a government de facto in the highest sense of that term. Query. — Was it not a government de jure? Judge Waller R. Staples delivered the unanimous opinion of the court as follows: The important question in this ease relates to the legacy of Samuel Bushong, a resident of the state of Indiana. This legacy was in March, 18G2. reported by the executor to a Confederate receiver, and was confiscated as the property of an alien enemy. According to the statement of the executor, the fund had been in his hands since July, 1861, part of the proceeds of personal property belonging to the testator. There is no evidence of the executor’s assent to or participation in the act of confiscation. On the contrary, it is to be inferred that he only made the report and payment because he was ordered to do so by the proper authorities. The question is now presented whether the payment thus mnde protects the executor against the claim of the legatee? In order properly to discuss this question the acts of confiscation or sequestration passed by the Confederate congress must be briefly noticed. The first of these was passed August 30, ISfil; the second, amendatory thereof, February ID, 1802. It is unnecessary to state in detail the various provisions of these acts. It will be seen by reference thereto that it was made the duty of every person having in bis possession or under his control the effects of an alien enemy speedily to inform the receiver in his district of the fact. A failure so to do was declared a high misdemeanor, punishable by fine and imprisonment, and also a forfeiture of double the amount at the suit of the government. It was also provided ’that any person who, after giving such information, should fail to pay over and deliver on demand made by the receiver the money or effects in his hands should stand in contempt, and be proceeded against as in other cases of contempt; and the court or judge was authorized to imprison the offender until he should fully comply with the requirements of the act. Under the provisions of the original act the court was empowered 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 ease 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. . . .' . In this case the fund was deposited in bank to the credit of the executor, and was, therefore, under bis 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 on» 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 an unlawful and treasonable organization, and that no act done under its authority prejudicial to the rights of the 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 af Richmond in Keppel’s Adm’rs v. Petersburg R. Co., is relied on. It seems that Mrs. Keppel was a stockholder in that company, rind that a part of her stock was confiscated and sold during the war. In a suit against the company by Mrs. Keppel’s administrators the company claimed a credit for the dividends paid the Confederate receiver and to the purchasers of the stock sold. The learned chief-justice conceded that if the dividends belonging to Mrs. Keppel 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, either actual or menaced, under circumstances amounting to duress. the loss must have been borne by her. But nothing of tho 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 i.t 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 Tborington v. Smith. 8 Wall. [75 U. S.] 1, Chief-Justice Chase declared that obedience to the authority of the Confederate government in civil or local matters was not only a necessity but a duty. Why should a different rule be established with reference 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 that the whole power of the courts and the law would have been exerted against him to enforce obedience. AVhat 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? 1 think the executor was well justified in refusing to incur these hazards — he wisely declined a contest with a government which the whole naval and military power of the United States could not subdue under four years.

We think the second claim of the company as to payment in Confederate notes equally untenable. The liability of the company to Mrs. ICeppel for each dividend accrued when it was declared. At that moment the company became debtor, and the stockholder creditor, for the amount. It may have been the 'fault of neither that payment was not then made.

It was not, certainly, the fault of the stockholder. It is no excuse to the company that the particular currency in which its income was received, and in which its dividends were paid to the stockholders, has since become worthless. The dividends were declared in dollars. The debt created by the dividend to the stockholder was due in dollars. And in dollars only can it now be discharged.

But we are not more ready to say that it must now be discharged by dollars of greater value than those in which it was received, than to say that it may be discharged by dollars of no .value at all. At the time several of the dividends were declared, the chief currency, and when the others were declared, almost the entire currency of that part of the country in which the railroad was operated, was in Confederate notes; and whatever currency of bank notes there may have been in circulation, was of no greater real value. This currency may fairly be said to have been imposed on the country by irresistible force. There was no other in which the current daily transactions of business could be carried on, and there could be no other while the rebel government kept control of the rebel states. The necessity for using this currency was almost the same as the necessity to live. No protest, no resistance, no rejection, could avail anything. At the same time, this currency, though it depreciated rapidly, had a sort of value. Its redemption, though improbable, was not impossible, and, until the downfall of the Confederacy, it had a greater or less degree of purchasing power.

Under these circumstances, we can not refuse to take notice of the fact that the dollars which the company received were not of either description of dollars recognized as lawful money by the laws of the United States; nor can we hold the officers of the company as incurring any liability to the stockholders by receiving the currency actually in circulation for its earnings, beyond that of prompt payment in like currency to such stockholders as were in a situation to receive such payment; and payment as soon as practicable in currency of equivalent value to such as were resident in the states, intercourse with which was, at the time, not only cut off by the Civil War, but was also interdicted by the congress of the United States.

In the case of Shortridge v. Macon [Case No. 12,812], it was held that the accrual of interest upon a note for a certain sum and interest was not suspended by the Rebellion. The dividends, in the present case, are in a different predicament. Dividends are only payable on demand, and it is agreed in this that there was no demand until the filing of tlie bill. Interest, therefore, can only be allowed from that date.

We shall decree, therefore, that the respondents pay to the complainants the dividends declared upon the stock of their intestate. with interest from November 23, 18(5(1. The amount of the several dividends at the several dates when made, will be computed by deducting such percentage as will reduce them -to equal value in lawful money, and interest .on the aggregate amount will be cast from November 23, 18(5(5, to this date, at six per cent.

And decree will be entered for the sum thus ascertained. The computations may be made by the counsel, or by a master, as they may prefer.

AVe are not disposed, however, to rest the discussion of this case upon this narrow and restricted view. It may be placed upon a higher ground. In Walker t. Christian. 21 Grat. 301. Judge Moncure, speaking for the court, said: “It is immaterial to inouire whether the Confederate government was de jure or de facto only, and if de facto only, for what purposes 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, can not 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, that it never expelled the regular authorities from their seats and functions: it never held the national capital; it never asserted any authority to represent the nation. The conclusion he adduces, therefore. is that it must be regarded as an unlawful organization, and all its acts and proceedings for the confiscation of property of loyal citizens must be treated as absolutely null and void. Now, the test here suggested may be. a correct one where 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 ns 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 can not 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 Co., 6 Wall. [73 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 Confederate government. Mr. Justice Nelson, in discussing the principles governing the rights and liabilities of underwriters in such cases, used the following language: “Still it can not be denied but that by the use of these unlawful and unconstitutional means a government 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 was conceded to it or was 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 cap-* tured recognized as prizes of war and dealt with accordingly, their property seized on land referred to 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 [supra], Chief Justice Chase expresses the opinion that the Confederate government may be classed among the governments of which Castine and Tampico are examples. Let us see. then, what was decided with reference to Castine. It was an American port, 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 government then asserted a right to levy imposts and duties upon them. The supreme court of the United States decided that 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. At 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 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 creditors. Ware v. Hylton, 3 Dali. [3 U. 8.] 227; Yattel. lib. 3. c. 8. § Í38, and Id. c. 9, 5 161. In the Prize Cases, 2 Black [G7 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 the Confederate authorities, and to seize and confiscate their property. These were declared to be the belligerent rights resulting from a state of war, applicable alike to civil and to foreign wars. It was upon this principle that the United States seized and confiscated the cotton of Mrs. Alexander, a widow lady, residing in the state of Arkansas, who did not even sympathize with the people of the south in the struggle for independence. The supreme court of the United States sustained the act, declaring that the personal dispositions of individuals inhabiting enemies’ territory can not. in questions of capture, be the subject of inquiry. [U. S. v. Alexander] 2 Wall. [69 U. S.] 405. According to the law of nations, the justice of the cause being reputed equal between the two enemies, whatever is permitted to one by virtue of a state of war is also permitted to the other. Vattel, 382. It does net matter how the struggle terminated, who the victors and who the vanquished, the question is not one of right, but of power appertaining to a state of war — power flagrante bello. The government of the United States may exercise both sovereign and belligerent powers. In its sovereign capacity it may punish treason by seizing and confiscating the property of the guilty party. This, however, can only be done by the conviction of the offender according to the forms and requirements of the constitution and laws. This guilt must be made to appear judicially. The constitution throws the shield of its protection around the citizen by declaring that no one shall be deprived of his life, liberty, or property, except by due process of law. When, however, civil war exists and the government asserts the rights of a belligerent, such as appertain to a state of tvar between independent nations, treating all the inhabitants of the opposing section as public enemies, blockading their ports against neutral powers, seizing and confiscating their property without trial and without conviction, it must be content to accept all the results which flow from the position thus assumed. In the Prize Cases it is admitted by Mr. Justice Grier that the parties in a civil war usually concede to each other belligerent rights. In the same cases, Mr. Justice Nelson, delivering a dissenting opinion, in which Judges Taney. Catron, and Clifford concurred, said: “In the case of a rebellion. or resistance of the people of a country against the established government, there is no doubt, if in its progress and enlargement the government thus sought to be overthrown sees fit. it may, by the competent power, recognize or declare the existence of a state of civil war, which will draw after it all the consequences and rights of war between the contending parties, ns in the ease of a public war;” and in defining the legal consequences resulting from a public war he declares: “All the property of the people of the two countries, on land or sea. are subject to capture and confiscation by the adverse party, as enemies’ property, with certain qualifications as respects property on land.” In Wheaton the same doctrine is thus announced. But the sen-era! usase of nations requires such a war (civil) as entitling both the contending parties to all the rights of war. as against each other, as well as respects neutral nations. Wheat. Int. Law. § 29(5; The Tropic Wind Law Rev. July. 38011; Hughes v. Litsey, 5 Am. Law Reg. (N. S.) 148; Trice v. Poynter, 1 Bush. 387; Coolidge v. Guthrie [Case No. 3,1S5]; U. S. Cir. Ct. S. D. Ohio. It has been urged here and elsewhere that the government of the United States might at the same time.exercise both belligerent rights and sovereign rights; belligerent with regard to the opposing section, and sovereign in punishing individuals engaged in resisting its authority. It might be demonstrated, I think, that inasmuch as the war was carried on by sovereign states associated in a common confederacy exercising the highest attributes of government, no citizen taking up arms under the authority of that government and yielding obedience to its laws and mandates can be held amenable to the penalties of treason. It is, however, unnecessary for the purposes of this case to establish that proposition. Let it be conceded that the government of the United States, having reduced the people of the South to submission, has the right to treat them as rebels and traitors. The same may be said of every established government, and the argument carried to its legitimate results proves that in a civil war belligerent rights can only be exercised by •'the successful party. It may be that the laws of the Confederate government can no longer be enforced, and that no person can claim exemption from punishment for treason under their authority; but what is to be said in respect to contracts made, rights vested, payments made, liabilities incurred, duties and obligations enforced, whilst such laws were in operation? The government of the United States was unable to afford any protection to this executor at the time of this transaction; its courts were not only closed against him. but he was declared an enemy of the Uniteu States, and his property liable to capture and confiscation by the authorities of that government. Whatever security he had against violence and wrong, whatever protection for person and property, was derived from the Confederate government. Protection and allegiance are correlative obligations. As the citizen is justified in obeying the laws which protect him, so his rights and liabilities in civil and local matters must be tested and settled by the rules of the government that has dominion over him. The government of the United States obtained many important advantages by the exercise of belligerent power during the war. It seized and confiscated millions of dollars worth of property belonging to Southern citizens who had taken no part in the struggle. It was relieved from all responsibility for acts done on Northern soil and on the ocean by the armies and navies of the Confederate States. Its blockade of Southern ports was respected, and its right to exert against neutral commerce all the privileges of a party to a maritime war fully recognized. The people of the Northern states approved this policy of their government, and reaped all the advantages flowing from it. For the losses they thereby sustained they must for redress look to the government which claimed their allesrianee and which received their services. Considerations of natural justice and equity, the laws and usages of nations, require that the people of the South shall not be placed in the position of insurers of funds in their hands lost by the accidents of war. In considering this case I have been content to concede that the government of the Confederate States was only a government de facto. Whether it was not during its existence something more, is a proposition in respect to which statesmen and jurists will differ so long as a trace of the struggle remains — so long as the fundamental principles of the government excite discussion among men. The decision of that question is not rendered necessary in any aspect of this case. Should it ever arise. I trust this court will meet it with the gravity and deliberation its importance demands.