STONE, J.
In Parks v. Coffey, 52 Ala. 32, many of the questions raised by this record are considered, and necessarily decided. In that case we approved the rulings in several of the leading decisions of the Supreme Court of the United States, and, notably, the case of Sprott v. United States, 20 Wall. 459. The language which we heartily approve in the opinion in that case, defining as it does the legal effect of our recent civil revolution and its overthrow, is as follows: “ The recognition of the existence, and the validity of the acts of the so-called Confederate government, and that of the States which yielded a temporary support to that government, stand on very different grounds, and are governed by very different considerations. The latter, in most, if not in all instances, merely transferred the existing State organizations to the support of a new and different national head. The same constitutions, the same laws for the protection of property and personal rights remained, and were administered by the same officers. These laws, necessary in their recognition and administration to the existence of organized [127]*127society, were tbe same, witb slight exceptions, whether the authorities of the State acknowledged allegiance to the true or false Federal power. They were the fundamental principles for which civil society is organized into government, in all countries, and must be respected in their administration under whatever temporary dominant authority they may be exercised. It is only when, in the use of these powers, substantial aid and comfort was given, or intended to be given, to the rebellion, when the functions necessarily reposed in the State for the maintenance of civil society were perverted to the manifest and intentional aid of treason against the government of the Union, that their acts are void.” We say nothing, in this connection, of the terms, rebellion and treason, employed in the foregoing extract. Such is the verdict which history pronounces on unsuccessful revolution.
In Horn v. Lockhart, 17 Wall. 580, that court had said, “ The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government, or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated, precisely as in time of peace*”
Speaking of the late war, and its consequences on State officers, and the exercise by them of their accustomed functions, we, in Parks v. Coffey, supra, said: “ Their tenure of office did not depend upon any Federal functionary. They could not be deposed, or their places supplied, by the action of any one from without the State. In fine, they composed a government, created by the people of Alabama, for the enactment and enforcement of the laws of the people; were responsible for their official acts only to this people ; could be succeeded in office only by those whom this people should elect, and possessed, de jure, all the powers of government, except those which were denied to them by the constitution of Alabama and the constitution of the United States.
The rightful government, thus constituted and thus endowed with the powers and faculties of administration, which Alabama had before, and when the act of secession was passed, continued without change, except by the regular election or appointment of successors to the persons whose terms of office expired, down to the close of the war. If any of its members ceased to be lawful members of the government, while they acted as such, and became merely de facto members, of it, or only actual members, they were then usurpers of seats of authority which belonged to others. Who were those others that were thus expelled or kept [128]*128out ? Who claimed to be so ? Who, if the incumbents bad vacated their offices, would have had the right, or claimed that they had the right, to take and occupy them ? These are questions that cannot be answered, and why not ? Because the incumbents of those offices were not usurpers of them, but rightfully in possession.” This was oúr condition up to the moment of the surrender of the Confederate forces.
In the appointment of a general administrator and guardian for Mobile county; in committing to his care the administration of estates of decedents, and in providing for the. safe custody of infants and their estates, the courts exercised functions among the most conservative that are known to civil jurisprudence. These functions can not be tortured into aid and comfort to the war, which this, with other States, were engaged in with the government of the United States.
It is contended, however, that when the Confederate revolution was overthrown, we lost our corporate existence and municipal organization, and were remitted to the common States of conquered territory. The last of these propositions may admit of serious debate. It may be, that in the language of Justice Miller, supra, we only sought “to transfer our existing State organization to the support of a new and different national head.” It is difficult to understand how such attempted transfer could work a forfeiture of our corporate existence, and resolve us' into unorganized elements. "We had never ceased to be a State, and the results of the war proved we had never ceased to be a State in the Union. But even if our defeat placed us in the category of conquered alien territory, the result contended for did not follow. Conquest does not ipso facto supplant civil administration. It only arms the victor with the power to displace the precedent authority and to impose one of its own. It may tolerate and continue existing order- — it may modify it— it may impose an entirely new system. Might makes right; but victory gives only a power to change. It does not effect the change, proprio vigore. “When the United States take possession of any rebel district, they acquire no new title, but merely vindicate that which previously existed, and are to do only wbat is necessary for that purpose.”- — Case of Amy Warwick, Law Rep. June, 1862. See, also, Cross v. Harrison, 16 How. 164.
Conquest of a foreign territory absolves political allegiance, and establishes new political relations. But, “ The reasons for considering the former political laws as abrogated do not apply to the municipal laws, which regulate the private relations of individuals to each other, and their private 1 [129]*129rights of property. The change of sovereignty does not obliterate the subject matters of property or obligations, nor the parties to the rights, duties, or compacts; and, in respect to these things, there is a permanent necessity for an uninterrupted existence of laws of some kind. Accordingly, it is held that the municipal private code remains in force. Yet, it is not proprio vigore, or by the will of the people of the conquered country, but by the acquiescence of the new sovereignty, which is held to intend the continuance of such laws, in the absence of new laws displacing them.” — "Wheat. International Law by Dana, 4th Ed. § 346, note 4.
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STONE, J.
In Parks v. Coffey, 52 Ala. 32, many of the questions raised by this record are considered, and necessarily decided. In that case we approved the rulings in several of the leading decisions of the Supreme Court of the United States, and, notably, the case of Sprott v. United States, 20 Wall. 459. The language which we heartily approve in the opinion in that case, defining as it does the legal effect of our recent civil revolution and its overthrow, is as follows: “ The recognition of the existence, and the validity of the acts of the so-called Confederate government, and that of the States which yielded a temporary support to that government, stand on very different grounds, and are governed by very different considerations. The latter, in most, if not in all instances, merely transferred the existing State organizations to the support of a new and different national head. The same constitutions, the same laws for the protection of property and personal rights remained, and were administered by the same officers. These laws, necessary in their recognition and administration to the existence of organized [127]*127society, were tbe same, witb slight exceptions, whether the authorities of the State acknowledged allegiance to the true or false Federal power. They were the fundamental principles for which civil society is organized into government, in all countries, and must be respected in their administration under whatever temporary dominant authority they may be exercised. It is only when, in the use of these powers, substantial aid and comfort was given, or intended to be given, to the rebellion, when the functions necessarily reposed in the State for the maintenance of civil society were perverted to the manifest and intentional aid of treason against the government of the Union, that their acts are void.” We say nothing, in this connection, of the terms, rebellion and treason, employed in the foregoing extract. Such is the verdict which history pronounces on unsuccessful revolution.
In Horn v. Lockhart, 17 Wall. 580, that court had said, “ The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government, or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated, precisely as in time of peace*”
Speaking of the late war, and its consequences on State officers, and the exercise by them of their accustomed functions, we, in Parks v. Coffey, supra, said: “ Their tenure of office did not depend upon any Federal functionary. They could not be deposed, or their places supplied, by the action of any one from without the State. In fine, they composed a government, created by the people of Alabama, for the enactment and enforcement of the laws of the people; were responsible for their official acts only to this people ; could be succeeded in office only by those whom this people should elect, and possessed, de jure, all the powers of government, except those which were denied to them by the constitution of Alabama and the constitution of the United States.
The rightful government, thus constituted and thus endowed with the powers and faculties of administration, which Alabama had before, and when the act of secession was passed, continued without change, except by the regular election or appointment of successors to the persons whose terms of office expired, down to the close of the war. If any of its members ceased to be lawful members of the government, while they acted as such, and became merely de facto members, of it, or only actual members, they were then usurpers of seats of authority which belonged to others. Who were those others that were thus expelled or kept [128]*128out ? Who claimed to be so ? Who, if the incumbents bad vacated their offices, would have had the right, or claimed that they had the right, to take and occupy them ? These are questions that cannot be answered, and why not ? Because the incumbents of those offices were not usurpers of them, but rightfully in possession.” This was oúr condition up to the moment of the surrender of the Confederate forces.
In the appointment of a general administrator and guardian for Mobile county; in committing to his care the administration of estates of decedents, and in providing for the. safe custody of infants and their estates, the courts exercised functions among the most conservative that are known to civil jurisprudence. These functions can not be tortured into aid and comfort to the war, which this, with other States, were engaged in with the government of the United States.
It is contended, however, that when the Confederate revolution was overthrown, we lost our corporate existence and municipal organization, and were remitted to the common States of conquered territory. The last of these propositions may admit of serious debate. It may be, that in the language of Justice Miller, supra, we only sought “to transfer our existing State organization to the support of a new and different national head.” It is difficult to understand how such attempted transfer could work a forfeiture of our corporate existence, and resolve us' into unorganized elements. "We had never ceased to be a State, and the results of the war proved we had never ceased to be a State in the Union. But even if our defeat placed us in the category of conquered alien territory, the result contended for did not follow. Conquest does not ipso facto supplant civil administration. It only arms the victor with the power to displace the precedent authority and to impose one of its own. It may tolerate and continue existing order- — it may modify it— it may impose an entirely new system. Might makes right; but victory gives only a power to change. It does not effect the change, proprio vigore. “When the United States take possession of any rebel district, they acquire no new title, but merely vindicate that which previously existed, and are to do only wbat is necessary for that purpose.”- — Case of Amy Warwick, Law Rep. June, 1862. See, also, Cross v. Harrison, 16 How. 164.
Conquest of a foreign territory absolves political allegiance, and establishes new political relations. But, “ The reasons for considering the former political laws as abrogated do not apply to the municipal laws, which regulate the private relations of individuals to each other, and their private 1 [129]*129rights of property. The change of sovereignty does not obliterate the subject matters of property or obligations, nor the parties to the rights, duties, or compacts; and, in respect to these things, there is a permanent necessity for an uninterrupted existence of laws of some kind. Accordingly, it is held that the municipal private code remains in force. Yet, it is not proprio vigore, or by the will of the people of the conquered country, but by the acquiescence of the new sovereignty, which is held to intend the continuance of such laws, in the absence of new laws displacing them.” — "Wheat. International Law by Dana, 4th Ed. § 346, note 4. Further on in the same note, the same author says, “the private laws of the former State subsist, unless they are suspended by the occupying power, and for the reason that some laws must exist, to regulate private rights and relations, and the persons and things, which are their subjects, remain unchanged : therefore, the laws are permitted to continue, until a change is expressly made.”
We think it results from the principles stated above, that if the defeat of the Confederate arms had the same effect on the resisting States, as if they had been conquered foreign States, the consequences were: First, that it broke down and destroyed the attempt to establish a separate-Southern Confederacy, and removed all obstacles to the maintenance of the authority of the Government of the United States, within those States: Second, that it clothed the government of the United States with the power to exert its supremacy and will, within constitutional limits, in the matter of rehabilitating such States; and that, in the exercise of this function, the conquering power could impose an entirely new municipal government upon the vanquished, or could leave them under their former municipal organization, either with or without modification: Third, that until a new system was imposed, or the old one modified, the former municipal regulations remained of force; and they were only supplanted to the extent that new laws and new regulations were established. We have supposed this civil status to have been ours, not for the purpose of conceding its truth. It is alike foreign to our intention, and to the wants of this case, to discuss that question. The restoration of the States that had been resisting, to their places in the Union, renders all discussion of the methods by which it was accomplished an immaterial legal inquiry. Power imposed the conditions; the vanquished had no option but to accept; they did accept the terms-; and the present political status is the accomplished result. Political status is more a fact than a theory; and in our complex system of government, it depends on the [130]*130fact of recognition, rather than the constitutionality of the methods by which it is brought about. It is a purely political question, and can never be carried before a court of oyer and terminer. If we could succeed in declaring unconstitutional and void, the steps by which we were recognized as States in the Union, the result would be to declare that Alabama is without civil officers; for all the officers of the State hold their commissions derivatively from the reconstruction measures devised by the government of the United States.
But the question for our solution is, not what the conquering power might, or should have done. What did it do ?
On the 21st of June, 1865, the president of the United States issued his proclamation, appointing Lewis E. Parsons provisional governor of the State of Alabama, and empowered and instructed him to reorganize the civil government of the State, assuming as a reason for it, that “the rebellion which has been waged by a portion of the people of the United States against the properly constituted authorities of the government thereof, in the most violent and revolting form, but whose organized and armed forces have now been almost entirely overcome, has, in its revolutionary progress, deprived the people of the State of Alabama of all civil government.” Broad as this language appears, it was not intended to affirm that the State of Alabama was in a state of anarchy, without any rules of civil conduct. It was not intended to declare that all statutes were repealed, and all offices thereby vacated. The utmost it intended to assert was, that the State of Alabama, in its municipal organization, was at the mercy of the conquering Federal government, and that he, the executive head, had the power to ordain new municipal regulations, and intended to exercise it. And such was the construction placed upon it by Governor Parsons. In his proclamation dated July 20th, 1865, he made known that he came not to tear down, but to build up; not to wound, but to heal. He did not declare all statutes abrogated, or all offices vacated. He proclaimed no new laws, and created no new offices. He made known no new rules for the protection of life, liberty, or property, and introduced no new official machinery for the preservation of these inalienable rights. He proposed to adopt and enforce the laws as he found them, save such as the results of the war had rendered inapplicable, and to retain the machinery which those laws had provided for their enforcement. And while he evidently asserted the right to declare offices vacated, he exercised that right sparingly. He retained in office, by name, justices of the peace, constables, members of the commissioners court (except judges of probate), the county treas[131]*131urers, tax-collectors and assessors, coroners, and municipal officers of incorporated cities and towns, who were in office on 22d May, 1865. And judges of probate and sheriffs, who were in office at that time, were retained in their respective offices, until others were appointed.
It is contended, however, that the general administrator and guardian of Mobile county was, under the statute of his creation, an officer ; and, inasmuch as he is not named in the proclamation as one of the officers retained, this omission to name him vacated his office. We might concede that his is a quasi office, but it has none of the attributes of a municipal office. But suppose we concede it is an office. Governor Parsons, representing the conquering power, did not lay his hand upon it, or take any steps to vacate it. We have shown above that conquest does not per se overthrow municipal regulations, or civil authority. It only confers the power to do so. This particular office, or trust, was not interfered with, and therefore it continued. But we think the proclamation proves that Governor Parsons, if the subject occurred to him (of which we have doubts), intended to retain this officer, or fide-commissary, in the place in which he found him. We have shown above that he retained all the minor officers, whose services are brought into most frequent requisition. The well-being of society imperatively demanded this. Without these, order could not be preserved, marriages solemnized, or estates administered. Other offices of higher grade, were of less pressing use. These he expressed a willingness to fill, “if the loyal citizens of the State find it necessary to have them appointed.” He names these officers— clerks of the Circuit Courts, solicitors, judges of the Circuit Courts, chancellors, and judges of the Supreme Court. It will thus be seen that Governor Parsons provided for and mentioned all the officers constituted and required in municipal administration. The most numerous classes — those whose services were and are most frequently required — he retained in office. Those, whose offices he concluded might be dispensed with for a time — possibly during his provisional administration — he expressed his readiness to fill, “if the loyal citizens of the State [should] find it necessary to have them appointed.” We think Governor Parsons, in these named classes, intended to embrace all the officers of the State employed in municipal administration, and that he thought he had done so. We think, further, that he intended to continue, as he found them, the laws and the agents for their administration, to the end that all the rights of person, property, successions, personal relations, and police, as the same are enjoyed under our free constitutions, might not be [132]*132interrupted or impaired. And, finally, we think, tbat when he announced Ms intention not then to appoint clerks of Circuit Courts, solicitors, judges of circuits, chancellors, and judges of the Supreme Court, his conclusion was that he had continued in operation all other official machinery, for the complete, harmonious administration of municipal government. Under these rules, neither the overthrow of the Confederacy, Governor Parsons’ accession to power, nor any official action taken by him, disturbed the incumbency of the office of general administrator and guardian for-Mobile county.
If it be contended, that all the foregoing was done under the president’s proclamation of 1865, and that the State governments thereby sought to be rehabilitated, were treated as illegal and overthrown by the congressional reconstruction of 1867, the answer is, first, that this did not, and could not annul what was done, permissively, if you please, in 1865, under the sanction or acquiescence of the provisional governor ; second, the reconstruction act, itself, did not abrogate the State governments, or their machinery then in exercise, but only declared “that, until the people of said rebel States shall be by law admitted to representation in the congress of the United States, any civil government which may exist therein shall be deemed provisional only.”
Much contrariety of opinion may be entertained and expressed by publicists as to the regularity of each of the plans of reconstruction through which we have passed. It is neither our purpose nor province to enter upon the discussion. It is a political question which cannot come before us. The result of the first, temporarily, and of the last up to the present time, has been, in each ease, an accomplished fact. "We must deal with it as it was and is, not as we may believe it should have been. — See Plowman v. Thornton, 52 Ala. 559, 556.
We find no error in the record, and the judgment of the Circuit Court is affirmed.
Manning, J"., not sitting.