Smith v. Stewart ( 1869 )

Taliaferro, J.

The plaintiff in this action alleges that the defendant Charles D. Stewart and eight others in April, 1802, destroyed by fire two hundred and seventy-five hales of cotton, tho property oi plaintiff, which he avers were worth eighty-five thousand dollars. He prays judgment in solido against the defendants for that sum with interest and costs.

Tho defendants .filed separate answers. In the court below, the case was continued as to all the defendants except Stewart, between whom and the plaintiff the present controversy lies. Judgment was rendered in favor of the plaintiff for twelve thousand dollars, and the defendant appealed.

The defendant’s answer denies that the cotton belonging to plaintiff was burned at the time specified; and avers that if it were, it was burned by the militia of Pointe Coupee parish, acting under orders from the regularly constituted authorities of tho State, and specifies as constituting those authorities the Governor, in his capacity of commander in chief of the army and navy of the State, and of the militia thereof, and others, subordinate officers of the militia of the State; as welL as by the authority of and under the orders of the officers of the Confederate States - Government, whose orders and authority were at that time obligatory and binding upon the defendant, and which he was compelled to obey. lie avers that at that time the militia of the parish were acting under orders from the commander in chief; that he was compelled to be a member of the regiment of Pointe Coupee militia, and that as such, nothing was done by him except what he did by the orders of officers whose commands he could not disobey. He pleads the prescription of one year in bar of the plaintiff’s action.

The issues made in this case are—

First — Is the action prescribed?

Second. — Was the authority under which the defendant acted a lawful authority?

] Third. — Did he act under compulsion?

And first as to the question of prescription.

The learned and able opinion delivered in this ease by the judge a quo enables us without difficulty to arrive at a satisfactory conclusion under this head. It is shown that from the time of the capture of New Orleans by the national forces in April, 1862, a continuous state of ■alarm and agitation prevailed in the parish of Pointe Coupee and the adjacent country, during the remainder of the war. Especially from the beginning of the year 1863 to the spring of 1865, the parish of Pointe Coupee was scourged by alternate raids of the military forces of both the hostile parties. Battles and skirmishes were frequent; while that state of affairs continued the people were panic stricken from the danger with which they were surrounded. Perturbation and terror wore in the ascendant. In that district of country at that time the Ciceronian maxim “ Silent leges inter anna,” was fully illustrated. It is' shown that during the year 1862, after the plaintiff’s cause of action arose, there was only one term of cora-t held in the parish, and that that was a mere formal opening of the court without the purpose of transacting business. That there was no court held during the years 1863 and 1864; and that the first court held afterwards was at the December term, 1865, under the Constitution of 1864; there having been but the one court, and that a mere nominal one, from the twenty-ninth of April, 1862, to the first Monday of December, 1865. It is shown that the defendant, shortly after the burning of the plaintiff’s cotton, removed to Texas, where he remained three years. The petition in this case was filed on the third day of January, 1866, and the citation served on the fourteenth of March of the same year. But were the officers and the judge of that court, whoso sittings were of such rare occurrence, officials deriving their commissions and authority from a legal source? It is contended that the contrary has not been proved, and admitting the court to have been inci mp¿tent, still the plaintiff by diligence might have filed his suit and had citation served and thus have been enabled to save his claim from prescription. By the expression “ of competent jurisdiction or not” in article 3484 of the Civil Code, relied upon by the defendant, we understand courts of constitutional and legal origin, although incompetent as to jurisdiction of the subject matter, It is shown that, the State in its then abnormal condition, passed an edict by which suitors who had not sworn allegiance to the Confederate authorities, wore prohibited from.instituting suits in the courts; and from this the political status of the officers of these courts may readily be inferred.' In view of the confusion and dismay of the time and the general distraction of the country, it is not reasonable to expect diligence to be used in the prosecution of legal rights. In the furor and excitement of that period, the closing of the courts, of more than doubtful legality if open,' and the general neglect óf all business, except that of war, it would have been a vain and useless thing for the plaintiff to institute an action; and had it been practicable, it doubtless would have brought odium if not danger upon him tq have instituted the pre.sent action.

We think the evidence fully warrants us to determine that in this case there was a suspension of prescription under the equitable principle invoked by the plaintiff, contra non valentón agere non currit pre-scrip lio.

It is in consonance with the spirit of our laws and the jurisprudence of the State to recognize the rule where facts obviously show the equity of its admission. 11 An. p. 730 and cases there cited.

Second. — Was the authority under which the defendant acted a lawful authority ?

• This inquiry, seemingly, though we apprehend not necessarily, involves the consideration of the much mooted question, did the late Confederate States constitute a government defacto?

We regard this question rather as a political than a legal one. It does not in our view come properly within the range of judicial action. Courts should be governed in questions of this character by the authoritative declarations of the national government. Authorities are not wanting to sustain this opinion. But, it is urged upon us that the action of the general government during the war towards the States lately in rebellion, was such as to recognize them as a belligerent power, and as having a government de facto; and that they have been so acknowledged by other powers. This subject has been pressed upon our consideration with much ability and zeal in this case, as well as in others, and we deem it proper to examine it.

In entering unwillingly upon this task, we shall first inquire into the character of this alleged recognition of the late Confederate States as a belligerent power by the- United States government. When independent powers, governments de facto et de jure, engage in war against each other, they are called belligerents. Certain recognized rules and usages applicable to their condition of hostility and to their relations to neutral powers are called belligerent rights.. The terms belligerents and belligerent rights are properly applicable only to sovereign powers engaged in war. In all other cases they apply sub modo, and in'a limited and qualified sense. In the case of sovereign powers engaged in war they recognize each other as sovereigns. In the case of rebellions where one party strives to obtain its independence and the other to reduce the insurgent to obedience, no such recognition occurs. Yet, in the latijer case, modern warfare admits, in tho interest of humanity, the humane treatment and exchange of prisoners; a concession to that extent, of a belligerent right in favor of the insurgent power. In blockading the Southern ports during the late war the United States government chose to exercise a belligerent right, when as a sovereign, it might have accomplished the same object by interdicting commerce through those ports by municipal regulations. This act of blockading the Southern ports and the exchange of prisoners are construed into a recognition by the United States of the alleged status of the Confederate States as a belligerent power. But constructive belligerency and constructive governments de facto are novel elements of international law, and not yet incorporated wo imagine in the law of nations even in “its newest state.” What is the evidence that the late insurgent States were ever recognized as constituting a de facto government either by the United States or any other power 1 ' It is not shown, nor, we imagine, can it be, that any formal declaration of such recognition has ever been made by any government, by the issuing of any proclamation or State paper importing a national act. No ambassador, minister plenipotentiary, charge de affairs or other functionary of that order was ever sent to Richmond to treat with the government of tho Confederate States. No official of that character, sent by the government of the Confederate States to foreign powers was ever recognized and received in that capacity. If Lord John Russell, in speeches before political meetings, spoke hopefully of the Confederate cause; and if now and then, a member of Parliament said in his place that tho Confederate States were a government de facto and ought to be recognized, it was matter of but little import. Whatever else may have been said or done in England or in Prance touching these matters, it is certain that no solemn act of either government was ever announced declaring the Confederate government a government de facto.

Conceding, however, that the Confederate States were a belligerent power, did that constitute them a government defacto? Certainly not. It is contended nevertheless that its status was that of a de facto government because the insurgent. States established a government and exercised jurisdiction over the country which they embraced. In ex-ambling this proposition, we must look dispassionately at tlie stem array of facts that como witliin the field of view.

What then is a government de facto?

A government defacto arises only where the established government has been subverted by successful rebellion, and the new government - exercises undisputed sway for the time being over the entire country j or, where the people of any portion of a country subject to the same government, throw off their allegiance to that government and establish one of their own; and show, not only that they have established a government, but also their ability to maintain it. This principle is founded upon reason and the fitness of things, and is therefore a rule of international law'. The recognition of the government of a revolted State or province by a neutral power, is casus belli for the sovereign claiming dominion over the revolted country, if such recognition precedes the exhibition by the newly formed government of its ability to maintain its independence. Where recognitions of revolted States have occurred without this manifestation of the ability to sustain their new condition, they have been simply interventions with the intention of war.

During the cruel and fanatical war waged against the Netherlands by Philip the Second of Spain, England recognized their independence for the purpose of becoming a party to the war ; fearing that if the Netherlands were subdued, both the government and church of England would be in danger from the power and fanaticism of Philip. What lias been the uniform usage of nations on the subject of recognition! Numerous examples might be given. A few will suffice. When in 1778, Prance entered into treaties of alliance and commerce with the British North American colonies,-then in a state of revolution, she adopted these measures upon the express declaration that “the people of these colonies were in the public possession of tlioir independence, and above all that their former sovereign had shown by long and painful effort the impossibility of reducing them to obedience.”

The uniform course of the United States towards the various provinces of Spain on the American continent, which, from time to time, within the last half century, have been in a state of revolt, has been scrupulously to abstain from the recognition of any of them as de facto governments until Spain herself had abandoned the contest, or it became morally certain that her power could never be reinstated.

Now, at what time did the insurrectionary States, in the late unhappy conflict, exhibit to the world their ability to maintain their so called government against the gigantic power of the United States? If they" never did this, the claim set up for them as a defacto government must fail; Aside horn the fact of their inability to maintain the government they set up being proved by the actual failure, it may justly be said that the result of the conflict was apparent from the beginning. What are the facts 2 The Southern States revolted and established.a govern-meat founded as they declared upon the great principle of slavery, and with the avowed purpose of perpetuating it. They did this in defiance of the moral sentiment of all Christendom. They had, no doubt, the good wishes of the few who yet.remain hostile to the march of liberal sentiment, and who cling to the idea of the divine right of kings. But on which side in the fearful strife were the sympathies of the masses of mankind? True, the Confederate States had a constitution, a congress, a president, officers of state; but to what purpose were these things, without the power to uphold them? One-half the population of the revolted States was ready at any moment when the opportunity occurred to rise in opposition to the new government, as all sane men know it would do. No inconsiderable number of the other half helped also to swell the armies of the Federal government. Spread over an immense extent of country, and occupying at first all the strongholds within the arena of war, the weaker party were enabled to maintain the unequal contest for several years; but was it tlieless certain how it must terminate ? Cut off from all intercourse with foreign countries by a powerful navy, the exhaustion of the country was slow indeed, but gradual and certain. A merciless conscription which dragged into the Confederate ranks all the efficient men of the country, was wholly inadequate to supply armies to repel the outnumbering forces that were advancing in every direction. The desertion of the laborers left the fields uncultivated. Without money, without manufactures, and without producers, food, clothing and the munitions of war began to fail. No intervention by any of the powers of Europe was to be expected. The public sentiment of England, in unison with that of the sovereign^ restrained the ministry; while the judgment and caution of Napoleon kept him from venturing alone upon a measure by no means free from hazard,.in view of his tenure of the throne of France, and of the well defined position of Russia touching intervention by any of the European powers.

In juxtaposition with this state of things, it was seen that upon the white basis the population of the loyal States was more than fourfold that of the Confederate States. From that population the Federal forces were not only continually recruited, but continually increased. Abounding in manufactures of every kind, with producing capacities unexampled in the history of any people; with money and credit commensurate with the exigencies of the cxisis, the armies of the Federal government were better clothed, better fed, better armed and better paid, than the same vast nxunber of men going forth to war, have ever been, in ancient or modern days. With these facts glaringly before the eyes of the world, can it be said that the Confederate States at any time exhibited their ability to maintain the government they established?

The advocates of the proposition that the Confederate States were a defacto government resort to English history for authorities to support their position. Wo think they are not fortunate in doing so. During the long continued wars carried on by the rival houses of York and Lancaster, when the kingdom was in turn held by the one or the other of the parties, de facto governments were alternately established, because intervals of long duration occurred between these alternate occupations of the crown, and during which all strife had ceased. Such was the case during the usurpation of Cromwell. He was in the undisputed possession of the go'vernment for a long period, during which he had no opposition. For this reason the Cromwell government was a de facto government; and we do not see that it proves anything that Sir Matthew Ilnle, an undoubted loyalist, held office under it, and that he afterwards he'd office under Charles the Second. The words of Lord Hale, quoted with such confidence are very significant on this point. Ho says: “the right heir of the crown during such time as the usurper is in plenary possession of it, and no possession thereof in the heir, is not a king within the act, on the subject of treason.” The authority of Sir Michael Foster is also to the same effect. He says: “ a king even de facto in the full and solo possession of the crown, he is a king; within the statute of tieason.” It is clear that all those examples drawn from English history, and the authorities cited, make good the premises we have laid down. They all show conclusively the conditions to bo absolute and plenary possession without interruption; and no possession of the realm in the adverse claimant. It is matter of history that these conditions were not fulfilled in the case of the Confederate government. From a very early period of the contest the Federal occupation of territory within the limits of the Confederate States was gvaduallv extended, until the whole country was occupied, or at least, until the Confederate authority was entirely subverted. We conclude finally that by the principles of international law, and the general usage of nations, the late government of the Confederate States did not attain the status of a government defacto. The authority then set up under the government of the late insurgent States was illegal and void. It cannot therefore avail the plaintiff.

Third. — The third inquiry is, did the defendant act under compulsion? The evidence sufficiently discloses that he was a willing and ardent soldier in the war against king cotton. We think he rendered willing rather than compulsory service. But it is no where shown by the record that he was actuated by malice or ill feeling against the plaintiff. Jt is true that ho acted in the matter of cotton burning conjointly with the other defendants UDder a militia officer; but we are rather inclined to think that the militia was a kind of machinery introduced with the view of giving an apparent legalization to the predetermined acts of those who advocated the ruinous policy of destroying cotton. But it is contended that the skirts of the defendant are not free from the flame and smoke of the burning staple. One witness says that the plaintiff set fire to some of his own cotton. It is shown that he caused cotton bales to be lianled out from under Ms gin, to have them in readiness for tlio cotton burners when they arrived, and that he advocated the burning of cotton. The testimony of the one witness in regard to the plaintiff's burning a part of his own cotton appears to have been disregarded on the trial below; and that portion of the testimony showing that he was in favor of the destruction of cotton to prevent its falling into the bands of the Federáis also shows that he held it premature to burn cotton at that time. It is clearly established that when the torch was about to be applied to his cotton, he protested against the act and earnestly requested time to remove it out of the way of the enemy, stating that he expected a boat in a short time by which he intended to send his cotton up the river, far in the interior.

There is another feature in these transactions worthy of notice. The proclamation of Governor Moore directed the burning of all cotton within the limits of the State, which was in danger of falling into the hands of the Federal forces, and provided that where it could be removed out of their reach, that it should be done. TMs clothed the militia officers with a margin of discretion, which (as they acknowledged the legality of the order) it was their duty to exercise with propriety and judgment. It is not shown by the record that there was danger at all of the capture of cotton by the Federáis; on the contrary, it appears that when their vessels of war went up the river, none of the cotton remaining was taken by them! Neither is it shown that at the time the plaintiff’s cotton Was burned there was immediate and imminent danger of its capture; so that the plaintiff was deprived forcibly of the benefit of the proclamation, which gave him the privilege of removing his cotton if lie were able to do so. The party acting under the illegal authority by which defendant seeks to shield himself, certainly appears not to have exercised a sound discretion in their proceedings, carried on as they were, under mistaken zeal and remarkable delusion.

This case was tried in the court below before a jury. The verdict was against the defendant. We find nothing in our review of the case that,authorizes us to alter it.

It is therefore ordered, adjudged and decreed that the judgment oi the District Court be affirmed with costs.