Cassell v. Backrack , 42 Miss. 56 ( 1868 )

Jbrkords, J.,

delivered the opinion of the court.

The declaration in this case contains two counts. The first is in trespass, and alleges that Cassell, the defendant below, on the 6th day of June, 1865, with force and arms, broke and entered the close of one A. H. Dinkins, in j>olice district number three, in Madison county, and took and carried away from said close two bales of cotton belonging to the plaintiff, Jacob Backrack, the same being of the value of five hundred dollars, and to the damage of the plaintiff in the sum of one thousand dollars.

The second count is in trover, and alleges that on the 5 th day of June, 1865, the defendant wrongfully converted to his own use two bales of cotton belonging to the plaintiff, to the damage of the plaintiff in the sum of one thousand dollars.

Cassell, the defendant below, pleaded the general issue, defending the wrong and injury, &e., and giving notice that under his plea of the general issue he would offer in evidence on his part, that, at a tax sale regularly conducted by the Confederate States government talx-collector, for non-payment of certain taxes due the Confederate States government by said Backrack on certain cotton, of which these two bales of cotton were a part, he, the said Cassell, purchased the said two bales at said sale, and paid for the same, he being the highest and last bidder for the said two bales of cotton; and that said sale took place on or about the 17th day of June, 1864. The defendant also gave notice of set-off, and accord and satisfaction. The cause was submitted to a jury, and they returned a verdict in favor of the plaintiff, for the sum of one hundred and fifty-one jW dollars; and, thereupon, the defendant below moved for a new trial for the reasons stated in the record, and the motion having been considered by the court, said motion was overruled and judgment rendered on the verdict, in favor of the plaintiff, to which ruling and action of the court the defendant excepted, and tendered his bill of exceptions. To reverse which judgment this writ of error is now prosecuted. On the trial of this case in the Circuit Court, the following instructions were requested and given for the plaintiff: —

1. “The court instructs the jury, that the sale by Gould to Cassell conferred on Cassell no title to the cotton in controversy, unless said sale was subsequently ratified by plaintiff, or his agent, Gazan.”

2. “ The sale by Gould to Cassell, as one then acting as an officer of the Confederate States government, conferred upon Cassell no title to the cotton in question,” &c. The giving of these instructions, and refusal of the court to grant a new trial, are assigned for error.

The official character of Gould, as the regularly authorized tax-collector for the Confederate States government, does not seem to have been denied or questioned at the trial; nor was any objection raised as to the regularity of the sale made by Gould as such tax-collector. It is asserted and not denied, that the sale took place in June, 1864, whilst the Confederacy remained intact, and its authority and power irresistible in the greater portion of the State of Mississippi. The proof shows that the sale was of two particular bales of cotton, designated by number ; that the purchase-money was paid in full, by the purchaser at the date of the sale. Nothing further remained to be done by either party, in order to confer a perfect and complete title to the property sold on the vendee. As between the vendor and vendee, this transaction was fully executed and closed, and the rights of the parties irrevocably fixed, when the purchase-money was paid. It can make no difference that the vendee allowed the cotton to remain at the place where he bought it, as by leaving it there it remained entirely at his own risk, and in contemplation of law was in his constructive or actual possession from the date of the sale. It is alleged by the plaintiff below, that the defendant below, when he removed the cotton which he bought, took one wrong bale, but there is no legal proof on this point whatever, in the case. In the absence of proof, we are bound to presume that he removed the precise two bales of cotton which he purchased, as the law never presumes the commission of a trespass or wrong.

It is a conceded fact, that both Backrack and Cassell were residents within, and adherents to, the Confederate States government, during the continuance of the late rebellion. Back-rack now, however, that he has played and lost, insists that the Confederacy never was a government at all, not even so far as its own subjects and adherents were concerned, and, as a necessary legal consequence, never had any authority to impose and collect taxes from its own citizens.

The question at once arises, What was this so-called Confederate States government ? Was it in all respects, and for all purposes, a disorganized mass, a disorderly and irresponsible mob ? Or rather, was it not for certain purposes, and with reference to certain persons and parties, a government in fact for the time being ?

We are well aware that in respect to the United States government and its loyal citizens, this is now no longer a question open for discussion. It is now fully and finally settled by every department of the Federal government, beyond all future controversy, that in relation to the United States, the late Confederacy was not a government either de jwe or de facto, within the meaning of these terms as used in the law of nations.

The pretensions of nationality set up by the Confederacy were most steadily and constantly denied by the United States, from the beginning to the close of the recent civil war. This was the very point in issue. It was the great central subject-matter of controversy between the contending parties.

The policy adopted by the United States government, and all the several departments, in all its dealings with this question, in whatever form or shape it presented itself, was adhered to and pursued with a tenacity of purpose which challenges the admiration of the world. It was never relinquished or even lost sight of for a single moment of time. It was maintained with a firmness and consistency unparalleled in the political history of nations, reaching the sublime in statesmanship.

But does it necessarily follow, that because the pretended Confederate government was no government so far as the United States and its loyal citizens wore concerned, that it was no government as to those who organized, put in motion, and adhered to its fortunes during its continuance? Yfe thinlc not.

It is well known that, after the breaking out of hostilities, that those who resided within Confederate territory not only acknowledged allegiance to the established central government, but with an unanimity and alacrity never before recorded in history, an entire people rushed to the support of the Confederate standard. The old State governments were overthrown, and speaking from the Federal stand-point, usurping governments were erected in their stead, and the Confederate States government, with sovereign power over all the eleven seceding States, was formed by the almost unanimous voice of an entire people. These governments, both State and central, were maintained and adhered to, for a period of more than four years, with unmatched devotion.

During all this time the internal and domestic concerns of life and business flowed on in their accustomed channels. Transactions involving thousands of millions of dollars had been fully consummated; innumerable contracts entered into and executed by the parties in interest; thousands of persons united in marriage, and children born of such marriages; the Reaper Death having been unusually busy during this period, had “heralded his millions to their homes in the dim land of dreams estates of decedents and minors had been administered; real estate and personal property of countless value had changed hands; courts were held, judgments rendered, and decrees pronounced and executed, — between the commencement and close of the war, under the assumed sanction of government and law.

We cannot now imagine any just political reason, or sound principle of State policy, which demands that we should hold, that as between the citizens of the Confederacy and the Confederate States government, there was no government whatever. This tribunal will take judicial notice of the fact as a matter of public notoriety and history, that the inhabitants of the Confederacy were not reduced to an absolute condition of barbarism, anarchy, and chaos during the continuance of the rebellion.

We are inflexibly averse to harrowing up the bones and ashes of the late unfortunate civil strife. Whenever we can do so, without departing from the straight path of duty, we feel constrained not to disturb their repose. Not by any word or deed of oiu’S would we knowingly renew or perpetuate a single unpleasant recollection of the deplorable past.

Whilst we admit that the public policy of the United States government holds that the Confederacy and the State governments organized thereunder were unlawful combinations, and their acts illegal and void so far as they affect that government and its loyal citizens; still in reference to all matters of internal, private, and domestic import, indifferent to the government and laws of the United States, we are satisfied it is our duty to hold that so far as the inhabitants of the Confederacy were concerned, it was a government in fact for the time being, for the purpose of conserving fully the private rights of persons and properly, and for the protection of individuals from liability and punishment for obeying the laws of such government. To hold differently, would overturn, without particularizing, almost every transaction, whether of a public or private nature, which transpired during the supremacy of the Confederacy, and would lead to consequences productive of incalculable mischief.

On the other hand, we believe we can see many satisfactory and controlling reasons why, as between the parties to, and the citizens of, the central and State governments composing the Confederacy, they were governments in fact, in all matters relating to their internal domestic affairs ; and especially should this be so with reference to past and executed transactions.

¥e are of opinion that for reasons of public policy alone, if for no other, the courts of the country should withhold their active interference in ■ all such cases. If it be true, as we have attempted to demonstrate (and we are confident we have made no mistake in this), that the Confederate States government, and the several State, governments composing the central power, were “unlawful combinations of persons,” confederating together for illegal and criminal objects 'merely, it seems to us that it follows irresistibly that all who formed part of and adhered to these unlawful organizations were not only patiiceps eriminis, but were in a strict legal sense in pari delicto, and that, therefore, as between all parties standing in this relation to each other, the courts of the legitimate government, when restored, upon well-established and familiar principles of law, should deny their active aid to either party, and leave them in the exact condition in which they find them.

¥e are not aware that this question has been the subject of judicial investigation either in the Federal or State tribunals of the country; and it is a matter of regret that we have not been able to fortify our position by precedent and authority. "We have, however, arrived at the present conclusion after the most careful and deliberate consideration, in full view of the vast importance of the question to be determined.

There is nothing in the position assumed in this case in conflict witli tbe principles intended to be discussed and adjudicated by tbe opinion of tbe court of tbe • present term, in tbe case of Samuel B. Thomas, Sheriff, &c., v. William B. Taylor.

In tbat case, tbe subject-matter of tbe controversy was executory • whereas, in tbe case at bar, it bad been wholly execioted.

Tbis opinion is designed to be limited in its bearing to matters and transactions, not affected by tbe constitution and laws of tbe United States, and wbicbbave been entirely consummated, by tbe Confederate States government upon its own citizens, or to subjects of controversy arising between sucb citizens and executed by them, during tbe time when tbat government was claiming to exercise, and in point of fact did exercise, sovereign power over tbe territory witbin its control.

For tbe reasons bere stated, we are of opinion that tbe instructions given by tbe court below were erroneous. Its judgment must, therefore, be reversed; tbe verdict set aside; a venire de novo awarded, and tbe cause remanded.