Pennywit v. Foo59.

that on said 26th of October, 1857, the State of Arkansas was in its normal condition as a State of the Union, and that he had a right to prosecute and defend actions in the courts of said State, the same as citizens of the United States and the State of Arkansas; and that he did employ counsel and appear in said case for the purpose of setting up and maintaining a defense to said action.

That subsequently the State of Arkansas seceded and declared and waged war against the United States, and established a pretended government, and that the said court in which said judgment was rendered, was, at the time, a court under the authority of said government, and not under the authority and jurisdiction of the United States, and that the judge who rendered said judgment was not and never had been a judge of the State of Arkansas, but was a person acting under the authority of the said usurped and illegal government.

To this was the following reply:

"The plaintiffs, for reply to the amended answer of the defendants, say that the Circuit Court of Crawford county, in the State of Arkansas, in and by which the said judgment in the petition mentioned was rendered, was and is the same court in which said suit by the plaintiffs against the defendants, in the petition mentioned, was instituted on the 26th day of October, 1857, and in which the said defendants appeared and pleaded their pretended defense, mentioned in their said amended answer, and was not another or different court, as pretended in said answer, and was, at the commencement of said suit, and thence continually until and at the time of rendering said judgment, a court of general jurisdiction in law and equity, lawfully established and proceeding under and by virtue of the Constitution and laws of the said State of Arkansas, and that the judge of said court, who rendered said judgment, was, at the time when he rendered the same, duly appointed, qualified, and acting as such, under and by virtue of the Constitution and laws of the said State of Arkansas. And plaintiffs aver that, by the law and usage of the said State of Arkansas, the said judgment of said court now is and ever since the rendering thereof has been of full force and effect, and that the same, at and ever since the commencement of this action, had and now has absolute verity, faith, and credit in all the courts of said State, and remains wholly unreversed; and they deny each and all averments in said answer to the contrary."

Penny wit v. Foote.

The case was submitted upon the foregoing pleadings, and upon an agreed statement of facts in support thereof. In this statement were exhibits showing as follows:

Exhibit No. 1 is a copy of the record of the Arkansas judgment authenticated in due form.

It shows that proceedings by attachment were begun in 1856, and at the February term, A. D. 1858, "the said defendants, by their attorney, Jesse Turner, entered their appearance," and gave their consent to the tiling of an amended declaration.

Afterward, in August, 1858, defendants, by their attorney, appeared, and, on his motion, leave was granted them to take testimony by depositions, which appears to have been done by defendants as well as plaintiffs. At July term, 1859, the defendants, by said attorney, filed their plea in the nature of a general denial.

Finally, at the November term, 1861, "the said parties, by their respective attorneys, appear, and neither party requiring a jury, this cause is submitted to the court, sitting as a jury, by consent of parties;" and, after hearing the evidence, judgment was rendered gainst the defendants, whose attorney filed a motion for a new trial, which being overruled, he took a bill of exceptions, which is also made part of the record.

Exhibit No. 2 is composed of extracts from the Constitution of Arkansas, adopted March 4, 1861, by a convention called in due form by act of the legislature, passed January 16, 1861. This convention, on the 6th of May, 1861, adopted an ordinance of secession in the usual form, and also this Constitution, and united with other States in forming the new government called the Confederate States of America, and as such Statc engaged in the war of the reberlion.

Under this new Constitution, it was declared that all writs, actions, prosecutions, judgments, claims, and contracts of individuals and bodies corporate should continue as if no change had taken place in the Constitution or government of the State, and all process previously issued should be as valid as if issued after its adoption.

It was further declared that all officers under the authority of the State shall continue to hold office until their terms expire under the provisions of this new Constitution, and all were required to take an oath to support the Constitution of the Confederate States of America, as well as of the State, and to abide by and observe all

Pennywit v. Foote.

the ordinances passed by the convention aforesaid. Upon this foundation, a State government was set up; the State, from its standpoint, was an independent State, united by compact with the Confederacy. As such, she resorted to arms.

King, Thompson & Avery, for plaintiff in error. I. The record of the judgment in the Arkansas court was entitled to the same faith and credit which it had by law and usage in that State. Constitution of United States, art. 4, § 1, Act of Congress, May 26, 1790, 1 Stat. at Large, 122. As to its validity by the law of Arkansas, see Hawkins v. Filkins, 24 Ark. 286, 295, 296, 316, 326; Beller v. Page, id. 363; Belding v. Godwin, id. 486; art. 4, § 1, Constitution of United States; White v. Cannon, 6 Wall. 443; Hughes v. Stinson, 21 La. Ann. 540; Hill v. Boyland, 40 Miss. 618; Harlan v. The State, 41 id. 566; Brown v. Wright, 39 Ga. 96; Bennett v. Morley, 10 Ohio, 100; Mills v. Duryee, Cranch, 481; Mayhew v. Thatcher, 6 Wheat. 129; Caldwell v. Carrington's Heirs, 9 Pet. 86; M'Elmoyle v. Cohen, 13 id. 312; Spencer v. Brockway, 1 Ohio, 260; Silver Lake Bank v. Harding, 5 id. 545; Goodrich v. Jenkins, 6 id. 44; Anderson v. Anderson, 8 id. 108; Arndt v. Arndt, 15 id. 33; Scott v. Pilkington, 2 Best & Smith, 11; 110 Eng. Com Law, 10; Jones v. Walker, 2 Penn. 689; Lessee of Le Grange v. Ward, 11 Ohio, 257; Daniels v. Stevens, Lessee, 19 id. 222; Peck v. Jenness, 7 How. (S. C.) 612; 17 Ohio, 409; Paine's Lessee v. Mooreland, 15 id. 435. But in the Superior Court it was treated as ex parte, and a nullity.

II. The States which seceded in rebellion did not thereby lose their existence or "independent autonomy." Arkansas continued to be a State, and a State of the Union, and the functions of all departments of the State-legislative, executive or judicial were unimpaired. Their acts and proceedings were valid, except such as were in aid or furtherance of the rebellion. The Confederacy and its measures are held void because it was organized by and for treason only. But the States stood upon a different footing. Texas v. White, 7 Wall. 700; Sprott v. United States, 20 id. 459, 464, United States v. Insurance Companies, 22 d. 99; Horn v. Locknart, 17 id. 570, Taylor v. Thomas, 22 id. 479, 489.

III The court erred in applying to a defendant the doctrine of persona standi in judicio, which in war suspends contracts by reason of the plaintiff's disability to sue in the enemy's country.

Penny wit v. Foote.

1 Kent's Com. 68; Griswold v. Waddington, 16 Johns. 438. The plea of alien enemy is available only against the plaintiff, and even then is most strictly construed. 1 Chitty's Pl. 479; Clarke v. Morey, 10 Johns. 69; 3 Camp. 150, 153; 13 Ves. 71, 72, and note. Alien enemy may be sued, though he cannot bring suit. MILLER, J., 18 Wall. 106, 111. And as to this see White v. Cannon, 6 Wall. 443; Mc Veigh v. United States, 11 id. 259; University v. Finch, 18 id. 106; Vanbrynen v. Wilson, 9 East, 321; Buckley v. Lyttle, 10 Johns. 117.

The suit in Arkansas was begun, and the defendants, by their attorney, had appeared and pleaded prior to the war. The jurisdiction of the court continued unbroken. The war would have been ground for a continuance, if applied for, but did not abate the suit.

IV. Hiving the record due faith and credit, it disclosed the fact that the defendants, by their attorney, submitted the cause and went to trial without objection. The attorney was appointed before the war. No revocation of his authority was shown. The war did not work a revocation. Buchanan v. Curry, 19 Johns. 137; Ward v. Smith, 7 Wall. 447; Botts v. Crenshaw, Johnson's C. C. 224; Anderson v. The Bank, id. 535; Manhattan Life Ins. Co. v. Warwick, 20 Gratt. 614; Monsseaux v. Urquhart, 19 La. Ann. 482.

V. The authority of an attorney at law is presumed, and the submission of the case by the defendant's attorney to the Arkansas court was conclusive upon them, unless relieved against, in the manner pointed out in Abernathy v. Latimore, 19 Ohio, 286; Treasurer of Champaign County v. Norton, 1 id. 270; Porter v. Critchfield, 3 id. 518; Pillsbury v. Dugan's Adm'r, 9 id. 117. The rights of defendants as citizens were not impaired. They had their day in court. 1 Ohio, 270.

McGuffey, Morrill & Strunk, and Geo. Hoadley, for defendants in error. I. As to the record of a judgment of one State called in question in another. U. S. Const., art. 1, § 1; U. S. Stat. at Large, 122; Bartlet v. Knight, 1 Mass. 401; 2 Pars. on Cont. 607; Hitchcock v. Aicken, 1 Caines, 460; Thomison v. Whitman, 18 Wall. 457; Maxwell v. Stewart, 22 id. 77.

II. As to the validity of a judgment rendered against a resident of a State adhering to the Union during the late war. by a court of a seceding State, etc., and as to whether jurisdiction that had VOL. XXII. — 44

Pennywit v. Foote.

once attached was suspended by the war. Bissell v. Briggs, 9 Mass. 462; Hall v. Williams, 6 Pick. 232; The Prize Cases, 2 Black, 635; Livingston v. Jordan, vol. 10, No. 1, Am. Law Reg. 55; Hanger v. Abbott, 6 Wall. 532; The Protector, 9 id. 687; Dean v. Nelson, 10 id. 158; Railroad Co. v. Trimble, id. 367; Ludlow v. Ramsey, 11 id. 581; Levy v. Stewart, id. 244; Conley v. Burson, 1 Heisk. (Tenn.) 145; Texas v. White, 7 Wall. 700; University v. Finch, 18 id. 106; Galpin v. Page, id. 350, Mitchell v. U. S., 21 id. 350, 368; Fretz v. Stover, 22 id. 198, 206; Taylor v. Thomas, id. 479, 489; Ross v. Jones, id. 576, 586; Perkins v. Rogers, 35 Ind. 124; Lasere v. Rochereau, 17 Wall. 437; Cappell v. Hall, 7 id. 542; McVeigh v. U. S., 11 id. 259.

III. Whether the government of Arkansas had a de facto or a de jure existence, or was merely a usurpation, the court is referred to 7 Eng. Stat. at Large, 436; Bolton v. Arme, Cases in Chan. 55; Harrison v. North, id. 83; Latham v. Clark, 25 Ark. 574; Robertson v. Shores, Coldw. 164; Hennen v. Gilman, 20 La. Ann. 242; Twiss' Law of Nations, 297; Griswold v. Waddington, 15 Johns. 57; The Prize Cases, 2 Black, 635; Martin v. Hewitt, 44 Ala. 418; Noble & Bro. v. Cullom & Co., id. 554; Texas v. White, 7 Wall. 701; Bank of Tenn. v. Woodson, 5 Coldw. 176; Conley v. Burson, 1 Heisk. 145; Cassell v. Backrack, 42 Miss. 56; Thomas v. Taylor, 42 id. 651.

JOHNSON, J. The facts disclosed present for our consideration important and novel questions growing out of the late civil war. They involve a determination of the legal effect of the secession of the State of Arkansas, and the war that ensued, upon the power of the courts of that State, during the war, to render judgment against a citizen of Ohio, and also the extent to which faith and credit should be given to a judgment thus rendered, under the Constitution and laws of the United States.

On behalf of the plaintiff it is claimed that full faith and credit should be given to this judgment, under article 4, section 1 of the Constitution of the United States, as a judicial proceeding of a State; but if it is not such, then at least it is entitled to all the verity of a foreign judgment, as the proceeding of a de facto court having jurisdiction of the case and the parties.

The defendant insists that this is not the record of a court of a State of the Union; that while the act of secession was void, and the State was never legally out of the Union, yet the government