
    Phillip Pennywit et al. v. John T. Foote et al.
    1. Neither the constitutional provision, that Tull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, nor the act of Congress passed in pursuance thereof, prevents an inquiry into the jurisdiction of the court by which a judgment offered in evidence was rendered.
    2. The record of a judgment rendered in another state, may be contradicted, as to the facts necessary to give the court jurisdiction; and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist.
    3. Such want of jurisdiction may be shown either as to the subject-matter, the person, or in proceedings in rem as to the thing.
    4. The ordinance of secession of the State of Arkansas, the Constitution adopted March, 1861, and the several steps taken by that state, by which it was attempted to secede from the United States and join the Confederate States, were null and void, being in violation of the Constitution of the United States, and the existing Constitution of the state.
    5. The state government founded on such new Constitution, and maintained by armed rebellion, was an insurrectionary and unlawful government, and not the legal representative of the state as one of the United States, and its acts and judicial proceedings in violation of the Constitution of the United States or in derogation of the rights of its citizens, were null and void.
    6. The provision of such Constitution, “ Schedule, Sec. 1. — That no inconvenience may arise from this change of government, we declare that all writs, actions, prosecutions, judgments, claims and contracts, of individuals and bodies corporate, shall continue as if no change had taken place in the Constitution or government of this state; and all process which may have been issued under the authority of this state previous to this time shall be as valid as if issued after the adoption of this Constitution,” did not operate during the war to transfer to the courts of the usurping government the jurisdiction previously acquired by the court under the former state government over persons resident in the adhering states.
    7. The Circuit Courts of that usurped government was a constituent part thereof. Their judicial proceedings, within their military lines and during the war, are not such as are, under Art. IV., Sec. 1, of the Constitution of the United States and the act of Congress, entitled to full faith and credit.
    8. As between parties residing in the State of. Arkansas and within the rebel lines, and a citizen of Ohio, resident within the Union lines, between whom the w.ar made intercourse impossible, there could be no jurisdiction in such court, by which the rights of non-residents could be injuriously affected.
    9. Neither could such jurisdiction be acquired by the consent or waiver of an attorney practicing in said court, who was employed and appeared for the non-resident defendants before the war commenced. His general authority as an attorney, before the war, though not revoked by the clients, did not authorize him to waive any of their rights, nor could such consent or waiver confer on the court jurisdiction over the case, or over the person of defendants.
    Error to the Superior Court of Cincinnati.
    This was an action brought by the plaintiffs against John T. Eoote, impleaded, with Sheldon Kellogg, late partners, to recover on a judgment rendered against said Kellogg and Eoote, in the Circuit Court of Crawford county, in the State of Arkansas, on the 16th of November, 1861.
    The petition contains an averment that said court was a court of record and general jurisdiction ; that the action was commenced in that court in October, 1857, and that at the July term of said court, in 1859, the defendants duly appeared by their attorney and filed their plea to the action, on which such proceedings were had; that at the November term of said court, in 1861, a judgment was rendered for plaintiffs for $960 damages, and for costs.
    To this petition John T. Eoote answered (Kellogg not being served) that the pretended judgment was rendered in the State of Arkansas, whose people, and the so-called government of the state, were at the time, and for a longtime had been, in armed rebellion against the authority and government of the United States, and by a pretended court, acting under the pretended authority of a so-called government, which was in rebellion, and engaged in making war upon the United States, wherefore it is claimed there is not any record of such a judgment.
    To this answer a demurrer was filed, and upon the question thus raised the case was reserved for decision of the court in general term. This demurrer was sustained, and cause remanded to special term, where the following amended answer was filed :
    “ The defendant, John T. Eoote, for answer to the petition of the plaintiffs, says that on the twenty-sixth (26th) day of October (1857), eighteen hundred and fifty-seven, he, the said defendant, was a citizen and resident of the State of Ohio, and had before been, and up to the month of June (1863), eighteen hundred and sixty-three, continued to be a citizen and resident of said state ; that in said month of June, 1863, he removed his residence to the State of New Tork, of which state he continued to be a citizen and resident for the three (3) years next following the month of June, 1863 ; that he then, in the year 1866, removed to the State of New Jersey, of which last named state he has ever since continued to be, and now is a citizen and resident. Defendant further says that the Circuit Court of Crawford county, in the State of Arkansas, was, on the 26th day of October, 1857, a court of the State of Arkansas, under the government and jurisdiction of the United States of America, and in peaceable relations therewith; and he, the said defendant, then had both in law and in fact all the privileges and immunities of a citizen of the United States, and of the State of Arkansas, in prosecuting and defending actions at law in said court; and as such citizen of the United States he employed counsel and appeared in said case, for the purpose of setting up and maintaining a just and good defense which he had to said action, as shown by the proceedings therein.
    “ The said defendant further states that afterward, and prior to the rebellion, hereinafter stated, and prior to the sixteenth (16th) day of November, eighteen hundred and sixty-one (1861), the persons and bodies of persons holding the chief executive and the legislative offices, in the state of Arkansas, combining and confederating with the-persons and bodies of persons holding the chief executive and the legislative offices in the States of South Carolina,. Georgia, Florida, Alabama, Louisiana, Texas, North Carolina, Tennessee, and Virginia, such persons being all the persons holding chief executive offices and a large majority of all the persons constituting legislative bodies, or any, in each and all said states, including the said State of Arkansas, rebelled against the authority of the United States of America ; and by means of a pretended confederate government, known and called the Confederate States of America, levied and waged a war against the United States of America, which said war was raging and continued to rage before and after the said sixteenth (16th) day of November (1861), eighteen hundred and sixty-one.
    
      “ And the defendant further avers that the residents of the said State of Arkansas, on, before, and after the said 16th day of November, 1861, including the pretended judges and officers of said Circuit Court of Crawford county, the said plaintiffs, and the said attorney who had been employed by this defendant, became and were the enemies of the United States, engaged in open rebellion and war against the said United States. And the defendant avers that the pretended judge and officers of the said Circuit Court were not, on said 16th of November, 1861, acting,, or assuming to act, under the authority and jurisdiction of the United States of America, or under the authority of ,any government existing or established in the said State of Arkansas connected with the government of the United States of America ; but under a usurped and illegal government of the said State of Arkansas, and nnder the said usurped and illegal government known and called the Confederate States of America. And the defendant avers that the pretended judge of the said Circuit Court of Crawford ■county, who rendered the said pretended judgment of said court (so-called) on the said 16th day of November, 1861, against the defendant, was not, on said 16th day of November, 1861, and never had been, a judge of the said' State of Arkansas, deriving authority from any government of said state as one of the United States of America; but was a person acting and assuming to act under authority derived from the said usurped and illegal governments of the said State of Arkansas, and the said Confederate States of America.
    “And the said defendant further avers that on and before the said sixteenth (16th) day of November, 1861, and for a long time thereafter, in the territory between the State of Ohio (of which state defendant was a citizen and resident, until June, 1868, as herein above stated) and in the territory between the States of New York and New Jersey (of •which states defendant was subsequently a citizen and resident as herein aforesaid), and the said State of Arkansas, the armies of the United States of America, and the armies ■of the said usurped illegal government of the Confederate States of America were arrayed against each other, and lines were established and maintained, which he, the said defendant, was not at liberty to pass; and communication was cut oft- and rendered impracticable between the said States -of Ohio, New York, and New Jersey, and the citizens thereof, and the said State of Arkansas and the people and inhabitants thereof; all which was well known to the said plaintiffs and to the said pretended judge and officers of the ■said pretended court. And the said defendant avers that on and before the said 16th day of November, 1861, under an act of Congress of the United States, for that purpose enacted, all commercial intercourse between the citizens of said States of Ohio, New York, and New Jersey, and the residents of the said State of Arkansas, was, by proclamation of the president of the United States, prohibited.
    “And the said defendant avers that on the said 16th day of November, 1861, he, the said defendant, had not, within the said State of Arkansas, the free and peaceable exercise-of the privileges and immunities of a citizen of the United States, or of the State of Arkansas, as one of the United States of America; but was illegally and forcibly deprived thereof by the acts of the said plaintiffs and the judge and officers of the said pretended court, and others combining and confederating with them, as hereinbefore. set forth. And the said defendant insists that said pretended judgment was and is fraudulent and void.”
    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, aucl 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.”
    “The case was again reserved to general term, and then submitted to court on the pleadings and the following ■“ agreed statement” of facts:
    This action coming on to be heard, the parties waived the intervention of a jury, and submitted the same for trial by the court, upon the pleadings and the following agreed statement of testimony:
    The plaintiffs offered and read in evidence the transcript of the record of proceedings and judgment in their action against said defendants in the Circuit Court of Crawford county, in the State of Arkansas, November term, in the year 1861, and the authentication thereof, which is hereto .annexed, and marked exhibit 1; also the transcript of section 4, article VI, of the constitution of said State of Arkansas, and the authentication thereof, which is hereto annexed and marked exhibit 2; also the decision of the Supreme Court of said State of Arkansas, being the highest ■court of judicature in and of said state, rendered at the December term, in the year 1866, in three causes, reported in volume 24 of a book styled Arkansas Reports, being the official and authorized report of the cases adjudged in said court, viz., the decision in Hawkins v. Filkins, reported at page 286, and in Better v. Page, reported at page 363, and in Bedding v. Goodwin, reported at page 486, which reports •and decisions so referred to are made part hereof as though herein fully sei forth, and were offered and read by plaintiffs as evidence tending to show the credit and effect due by the law of said State of Arkansas to the said judgment and proceedings in said Circuit Court of Crawford county.
    And the plaintiffs thereupon rested their case.
    Said defendants then offered testimony that on the 16tb day of January, 1861, the legislature of said State of Arkansas passed what was styled a convention bill. That on February 18th delegates to such convention were elected, and that on March 4th the convention met, and on the 6th of May it again met and adopted an ordinance, whereby Arkansas was declared to be a separate and sovereign state; and the ordinance or compact, by which she became one of the United States, thereby repealed, abrogated, and set aside, and the union subsisting between said state and the United States forever dissolved, and her people and citizens absolved from all allegiance to the United States, or the government thereof, and also authorized the transfer to the so-called Confederate States of America (through its delegates to the provisional congress of said confederate government, which congress first met and organized February 18th, a. d. 1861), of tlfe arsenal at Little Rock and the hospital at Napoleon, the same belonging to the said United States of America ; and that in the month of May, 1861, said Arkansas was formally admitted into the Confederate States of America, and through its delegates gave its adhesion to the provisional constitution of said confederation.
    That on the said 4th day of March, 1861, a convention in Arkansas assembled, ordained and established what purported to be a state constitution, a transcript of which was introduced by defendant, and is hereto attached and marked Exhibit 3; that the same was adopted June 1, 1861, by a convention of delegates assembled, claiming to represent the State of Arkansas, as a member of the so-called Confederate States of America, and that said judgment was rendered by a court whose judges and officers were acting under the authority of the constitution adopted as aforesaid.
    That the defendant, John T. Foote, on the 26th day of October (1857), eighteen hundred and fifty-seven, was a citizen and resident of the State of Ohio, and continued to be up to the month of June (1863),'eighteen hundred and sixty-three, and that from said date last-named till June, 1866, he was a resident of the State of New Yoi’k, and that from June, 1866, till the present time, he was and has been a resident of the State of New Jersey. That afterwai’d, aud prior to the 16th day of November, 1861, the said State of Arkansas combining and confederating with the States of South Carolina, Georgia, Florida, Alabama, Louisiana, Texas, North Carolina, Tennessee, and Virginia, under the pretended authority of the so-called Confederate States of America, levied and waged war against the United States of America, and so continued to do before and after the said 16th day of November, 1861, and that the residents of the said State of Arkansas were engaged in open rebellion and war against'the said United States of America.
    And that on and before the said 16th day of November, 1861, and for a long time thereafter, the armies of the United States of America and of said Confederate government were arrayed against each other, and lines were established and continued between the State of Arkansas and the States of Ohio and New Jersey, and all intercourse was prohibited and rendered impracticable between said states.
    And, thereupon, it is certified that the fox'egoing being all the testimony offered on either pax-t, each of said parties excepted to the competency of the testimony offered by the other to maintain the issue. And it was ox’der.ed that the action be reserved for the decision of the court in the gexxeral term, upon the pleadings and the testimony aforesaid.
    In witness whereof the judge at special term has hereunto set his hand and seal.
    M. B.. HAGANS, [seal.]”
    Exhibit No. 1, referred to, is a copy of the record of the Ax’kansas 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 ap.pearance,” and gave their consent to the filing 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 J uly 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 against 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 conveution, 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 state engaged in the war of the rebellion.
    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 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, sec. 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, Ib. 363; Belding v. Godwin, Ib. 486; Art. 4, sec. 1, Constitution of United States; White v. Cannon, 6 Wal. 443; Hughes v. Stinson, 21 La. Ann. 540; Hill v. Boyland, 40 Miss. 618; Harlan v. The State, 41 Miss. 566; Brown v. Wright, 39 Ga. 96; Bennett v. Morley, 10 Ohio, 100; Mitts v. Duryee, 7 Cranch, 481; Mayhew v. Thatcher, 6 Wheat. 129; Caldwell v. Carrington, 9 Pet. 86; McElmoyle v. Cohen, 13 Pet. 312; Spencer v. Brockway, 1 Ohio, 260; Silver Lake Bank v. Harding, 5 Ohio, 545; Goodrich v. Jenkins, 6 Ohio, 44; Anderson v. Anderson, 8 Ohio, 108; Arndt v. Arndt, 15 Ohio, 33; Scott v. Pilkington, 2 Best & Smith, 110 Eng. Com. Law, 10; Jones v. Walker, 2 Penn. 689; Lessee of Le Grange v. Ward, 11 Ohio, 557; Daniels v. Stevens, 19 Ohio, 222; Peck v. Jenners, 7 How. (S. C.), 612; 17 Ohio, 409; Paine’s Lessee v. Moreland, 15 Ohio, 445. 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 Wal. 700; Sprott v. United States, 20 Wal. 459, 464; United States v. Insurance Companies, 22 Wal. 99; Horn v. Lockhart, 17 Wal. 580; Taylor v. Thomas, 22 Wal. 479, 489.
    III. The court erred in applying to a defendant the doc-frine of persona standi in judicio, which in war suspends contracts by reason of the plaintiff’s disability to sue in the enemy’s country. 1 Kent 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 Pl. 479; Clark v. Morey, 10 Johns. 69; 3 Camp. 150, 153; 13 Ves. 71, 72, and. note. Alieu enemy may be sued, though he can not bring suit. Miller, J., 18 Val. 106, 111. And as to this see White v. Cannon, 6 Wal. 406; McVeigh v. United States, 11 Val. 259; University v. Finck, 18 Wal. 106; Van Brymen 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. Giving the record due faith and credit, it disclosed the fact that the defendants, by their attorney, submitted the cause aud 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, Chase’s Dec. 224; Anderson v. Bank Cape Fear, Ib. 535; Manhattan Ins. Co. v. Warwick, 20 Grattan, 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 Ib. 270; Porter v. Critchfield, 3 Ib. 518; Pillsbury v. Dugan, 9 Ib. 117. The rights of defendants as citizens were not impaired. They had their day in court. 1 Ohio, 270.
    
      Me Guffey, Morrill $ Strunk, and Geo. Hoadly, for defendants in error :
    I. As to the record of a judgment of one state called in question in another. U. S. Constitution, art. 1, see. 1; U. S. Stat. at Large, 122; Bartlett v. Knight, 1 Mass. 401; 2 Parsons on Contracts, 607; Hitchcock v. Aicken, 1 Caines, 460; Thomison v. Whitman, 18 Wall. 457; Maxwell v. Stewart, 22 Ib. 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 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. 632; The Protector, 9 Ib. 687; Dean v. Nelson, 10 Ib. 158; Railroad Co. v. Trimble, Ib. 367; Ludlow v. Ramsey, 11 Ib. 581; Levy v. Stewart, Ib. 244; Conley v. Bueson, 1 Heiskell (Term), 145; Texas v. White, 7 Wall. 100 ; University v. Finch, 18 Ib. 106; Galpin v. Page, Ib. 350; Mitchell v. U. S., 21 Ib. 350, 368; Fretz v. Stover, 22 Wall. 198, 206; Taylor v. Thomas, Ib. 479, 489; Ross v. Jones, Ib. 579, 586; Perkins v. Rogers, 35 Ind. 124; Lasese v. Rochereau, 17 Wall. 437; Cappell v. Hall, 7 Ib. 542; McVeigh v. U. S., 11 Ib. 259.
    III. Whether the government of Arkansas had a defacto 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 Chancery, 55; Harrison v. North, Ib. 83; Latham v. Clark, 25 Ark. 574; Robertson v. Sloss, 7 Coldw. 144; Harrison v. Gilmer, 20 La. Ann. 242; Twiss’ Law of Nations, 297; Griswold v. Waddington, 15 Johns. 438; The Prize Cases, 2 Black, 635; Martin v. Hewitt, 44 Ala. 418; Noble & Co. v. Collins & Co., Ib. 554; White v. Texas,7 Wall. 701; Bank of Tenn. v. Woodson, 5 Coldw. 176; Conley v. Bueson, 1 Heiskell, 145; Cassell v. Backreck, 42, Miss. 56; Thomas v. Tyler, 42 Ib. 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 legalty out of the Union, yet the government that was set up by the people of the state was a revolutionary usurpation in violation of the constitution; that this government was a government of force, maintained by arms ; that all its acts, legislative, executive, and judicial, were, as to the United States and its citizens, null and void.

It is further insisted that this was a war, in the sense of public law, and that the courts of Arkansas had no power to proceed to judgment against defendants; that they were by the war, and the duty which was imposed, as well as by the danger attending it, forbidden to appear and •defend.

It appears that this action was begun by the plaintiff in the Circuit Court of Crawford county in 1857.

Personal appearance was entered and issue joined prior to the war. After the state had joined the Southern Confedei’aoy, and while it was in arms against the Union, the case was tried. The attorney for defendants, who was retained and appeared before the war, continued to do so on the trial of the case, and consented to a trial. It is claimed these facts gave the court jurisdiction over the person, but the other side insists that such appearance could confer no power on the court to do an unauthorized act, and that' the war worked a revocation of his agency. "

1. Article' IV, section 1, of the constitution'of the United States provides that,“ full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state ; and the congress may, by’geheral laws, prescribe the manner-in which such acts and proceedings shall be proved, and the effect thereof.” Under the power thus conferred, congress passed the act of May 26, 1790, which provided that “the records and judicial proceedings of the courts of any state shall be proved or admitted in any other court within the United States, by the attestation of the clerk and the seal of the court annexed, if there he a seal, together with the certificate of the judge, chief j ustice, or presiding magistrate, as -the case may be, that the attestation is in due form. And the said records and proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within, the United States as they have’by law or usage in the courts of the state from whence said records are or shall be taken.”

Leaving out of view for the present the facts relied on as a defense in this case, let us inquire as to the scope and meaning of this constitutional provision and the act of Congress.

"What acts, records, and judicial proceedings are entitled to full faith and credit, and what is a judgment of a court of a state that imports absolute verity ?

By the act of 1790, a judgment which is valid in the state where rendered becomes, in the other states, a debt of record, hot re-éxaminable upon the merits, but it does not carry with it into another state the efficacy of a judgment against person or property that can be enforced by execution. To give it that force in another state, it must by/áction be made the judgment of such other state.

Hence it follows that such judgment is only evidence in another state that the subject-matter’ of the original suit has become a debt of record, which can not be avoided by a plea of nul ticl record'. McElmoyle v. Cohen, 13 Pet. 330.

In an action on such judgment in'another state, whatever pleas would be good.in the state where rendered would be good in such other state. Hampton v. McConnell, 3 Wheat. 234.

The constitutional provision was not intended to confer a new power of jurisdiction on the courts of any state, but to prescribe the effect in other states of the acknowledged jurisdiction over persons and things within the state. Every judgment depends, for its force and validity, on the competency and authority of the tribunal which pronounces it, and may be assailed by showing a want or failure of jurisdiction over the subject-matter or the person, even though absolutely conclusive in other particulars.

The manifest design of the constitution was to give faith and effect to valid, judgments, and not to enable the courts of one state to exercise a usurped or illegal authority over the citizens of other states of the Union, who are not amenable to the jurisdiction of the tribunal.

Without the constitutional provision and the act of 1790, the judgments of one. state would stand in the tribunals of the others, on the same footing as foreign judgments, and only be respected on the principles of comity between nations, and not as a duty imposed by the paramount organic law. How far such judgments of a state of the Union, when duly authenticated, are entitled to faith and credit, and are conclusive, is a problem by no means free from difficulty. It has been productive of numerous decisions, not always harmonious.

One of the earliest cases was Bissell v. Briggs, 9 Mass. 462, where it was said : “ Whenever, therefore, a record of a judgment of any state is produced as conclusive evidence, the jurisdiction of the court is open to inquiry. And upon the same principle, if a court of any state should render a judgment against a man not within the state, nor bound by its law's, nor amenable to the jurisdiction of its courts; and if that judgment should be produced in any other state against the defendant, the jurisdiction of the court might be inquired into, and if a want of jurisdiction appeared, no credit would be given the judgment.

“In order to entitle the judgment rendered to the full faith and credit mentioned in the federal constitution, the court must have jurisdiction, not only of the cause, but of the parties.” .

The same view was declared and enforced in Hall v. Williams, 6 Pick. 222.

In Rose v. Himely, 4 Cranch, 269, Chief-Justice Marshall says: “Upon principle, it would seem that the operation of every judgment must depend on the power of the court to render that judgment. ... In some cases, the jurisdiction depends as well on the state of things as on the constitution of the court.”

Eor a long time after the adoption of the constitution, it was supposed that its effect, in connection with the act of 1790, was to render the judgments of each state equivalent to domestic judgments in every other state; and this view was supported by the language of the Court in Mills v. Duryee, 7 Cranch, 484. It was so held in that case, and that a plea of nil debet was not a proper plea to an action on such judgment.

So far as the merits of that case are concerned, the doctrine there laid down is still adhered to; but as to the validity of a judgment dependent on the powrer of the court, quite a different view.is now entertained.

Mr.-Justice Story, who delivered that opinion, elsewhere says: “ But this does not prevent an inquiry into the jurisdiction of the court, in which the original judgment was given, to pronounce it; or the right of the state itself to exercise authority over the person or the subject-matter. The constitution did not mean to confer upon the states a new power or jurisdiction, but simply to regulate the acknowledged jurisdiction over persons and things within their territory.” (Story on Const., sec. 1313.) Again he says : “ It did not make the judgments of other states domestic judgments to all intents and purposes, but only gave a general validity and credit to them as evidence.” (Story on Conflict of Laws, sec. 609.)

Chancellor Kent (1 Kent Com. 281, and vol. 2, p. 95, and note) says : “ It is only when the j urisdiction of the court in another state is not impeached, either as to the subject-matter or the person, that the record of the judgment is entitled to full faith and credit.”

This distinction is • strongly supported by D’Arcy v. Ketchum, 11 Howard S. C. 165, where the case of Mills v. Duryee was limited and explained.

It was there held that the constitutional provision and act of Congress giving full faith and credit to the judgments of each state, in every other state, do not refer to judgments rendered by a court having no jurisdiction of the parties — that it only referred to valid judgments.

It is an important feature of that ease, that by the law of the State of New York, where the judgment was rendered, it was valid. It was a judgment against two joint debtors, only one of whom was served. Under the state law, this was a valid judgment against both, and if the language of the act of 1790 had full force, this judgment, when properly authenticated, “ shall have such faith and credit given it in every court within the United States as it had by law or usage in the courts of the state from whence it was taken;” and yet when sued on in Louisiana, it was held void as to the party not served, though valid by New York law. It was said : “ The international law as it existed among the states in 1790, that a judgment rendered in one state, assuming to bind the person of a citizen of another, was void within the foreign state, when the defendant had not been served with process or voluntarily made defense, because neither the legislative jurisdiction nor that of the courts of justice had binding force. . . . In our opinion, Congress did not intend to overthrow the old rule.”

In Webster v. Reed, 11 Howard, 437, the defendant offered to defeat the force of a judgment by showing want of service, and it was held it could be done.

In Starbuck v. Murray, 5 Wend. 148, it is said : “Unless a court has jurisdiction, it can never make a record which imports uncontrollable verity to the party over whom it has usui’ped jurisdiction, and he ought not therefore to be estopped by any allegation in the record from proving any fact that goes to establish the truth of the plea alleging want of jurisdiction. So long as the question is in issue, the judgment of a court of another state is, in effect, like a foreign judgment — it is prima facie evidence.”

From a careful review of numerous cases, we find the rule now well settled that neither the constitutional provision, that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, nor the act of Congress passed in pursuance thereof, prevents an inquiry into the jurisdiction of the court in which a judgment offered in evidence was rendered, and such a judgment may be contradicted as to the facts necessary to give the court jurisdiction, and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist, and this is true either as to the subject-matter or the person, or in proceedings in rcm as to the thing. Harris v. Hardiman et al., 14 Howard S. C. 334; Borden v. Filch, 15 John. 141; Christmas v. Russell, 5 Wallace, 290; Elliot v. Piersol et al., 1 Pet. 328; United States v. Arredondo, 6 Pet. 691; Vorhees v. Bank of U. S., 10 Pet. 475; Moulin v. Insurance Co., 4 Zab. 222; Mackay v. Gordon, 34 New Jersey, 286; Wilson v. Bank of Mt. Pleasant, 6 Leigh, 570; Story on Const., sec. 1307; Story on Confl. of Laws, sec. 609; Thompson v. Whitman, 18 Wallace, 457; Spencer v. Brockway, 1 Ohio, 261; Goodrich v. Jenkins, 6 Ohio, 44; Anderson v. Anderson, 8 Ohio, 108; Paine’s Lessees v. Mooreland, 15 Ohio, 445.

It follows, that while a judgment of a competent court of any state of the Union, that has jurisdiction or authority over the person and subject-matter, is conclusive upon the merits of the controversy in every state, yet the power of the court to render it is an open question in an action like the present.

It is competent, therefore, in such action, to inquire into-the authority of the. pretended court to exercise judicial functions, whether this record comes from a,lawful tribunal, within a state of the union, .whether- that tribunal had.jurisdiction of the subject-matter, and whether it had by. any legal method obtained jurisdiction over the person, in order to determine whether it was a valid judgment under the constitution. Either of these inquiries does not affect the merits of the controversy in the original action.

II. Was this record a judicial proceeding- of a court of one of the states of the United States ?

The state has seceded and dissolved its connection with the United States. It declared independence, and joined the confederacy. These acts were null and void, but on this- foundation a new constitution with allegiance to the Confederate States was adopted, and for the time was maintained by armed rebellion. Civil war ensued. The existence of this new authority was being determined by wager of battle.

This usurping government was one unknown to the Constitution, and in direct antagonism to it and the authority of the federal laws and authority. It could acquire no-legal authority over the people of the United States, and no actual power beyond the range of its guns. When the-armed forces, raised to establish this new government and make good their declaration of secession and independence, surrendered, this unlawful state government fell. • The-present constitution and state government of Arkansas is not the successor of that, and derives none of its power from its prior existence. The Congress refused to reeogi nize it, or the validity of its acts. By the reconstruction acts, it was- declared there was no legal state government to represent the state in the Union, and Congress took steps to organize a government in conformity to the paramount laws of the Unión.

The courts of this usurped state government, set up on the-ruins of the old, and dependent for its existence on organized treason, had no power over citizens of other states not domiciled there. It could acquire none by the steps taken. The defendants might cheerfully enter their appearance, and consent to have their case tried by a court of a state government, in harmony with the union, that recognized the binding force of the Constitution and laws of the United States, and where he was entitled to all the rights and immunities of a citizen of the United States, w'hile he would be . utterly unwilling to consent to be tried by a foreign court of a nation at war with, his government, and where his rights as American citizen are ignored.

These defendants never consented, to surrender their rights as citizens of the United States, guaranteed by its laws, and commit the issue to a court of new organization. The convention had no power to transfer this case from out the protection of federal laws, and make it amenable to the decision of a court unknown to them. What, then, was the status of the State of Arkansas, and the Circuit Court of Crawford county, under the new state organization, as a .state of the confederacy ?

In Texas v. White, 7 Wall. 700, Chief Justice Chase says:

“ Not only, therefore, can there be no loss of the separate and independent autonomy of the states, through their union under the constitution, but it may be not unreasonably said that the preservation of the states, and the maintenance of their governments, are as much within the design and care of the constitution as the preservation of the union and maintenance of the national government. The constitution, in all its provisions, looks to an indestructible union, composed of indestructible states. . . . Our conclusion, therefore, is that Texas continued to be a state, and a state of the Union, notwithstanding the transactions to which we have referred.”

In these remarks, the word state is used, not to mean the political organization or government. The Chief Justice says: 41 The people, in whatever territory, dwelling either temporarily or permanently, and whether organized under a regular government, or united by looser and less definite relations, constitute tbe state. A state, in the ordinary sense-of tbe constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such states, under a common constitution, which forms the distinct and greater political unit, which, that constitution designates as the United States, and makes of the people and states which compose it, one people- and one country.” Using the term “ state” in this sense, it was said by the court “ that Texas continued to be a state,, and a state of the Union.” After reciting the steps taken by the state to go out of the Union and join the confederacy, much the same as in case of Arkansas, it is added: “ When the war closed there was no government in the state, except that which had organized for the purpose of waging war on the United States. . . That government immediately disappeared. . . There being no government in constitutional relations with the union, it became the duty of the-United States to provide for the restoration of such a government.” Speaking of the acts of the rebel legislature of Texas, the court say: “ It can not be regarded in the courts of the United States as a lawful legislature, or its acts lawful.”'

It is added, however, that it was for some purposes a. government defacto, an actual government, which, though unlawful and revolutionary, possessed power over its own people, in such matters as did not affect the duty of the-state, or the people of the state, to the Union. The Chief Justice says:

“It is not necessary to attempt an exact definition within which the acts of such a state government must be treated as valid or invalid. It may be said, perhaps with suificient accuracy, that acts necessary to peace and good order among citizens — such, for example, as acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries of person and estate, and other .similar acts, which would be valid if emanating from a lawful government — must be regarded as valid when pro-needing from an actual, though unlawful', government; and that acts in furtherance and support of the rebellion against the United States, and intended to defeat the just rights of ■citizens, and other acts of like nature, must, in general, be regarded as invalid and void.”

Horn v. Lockhart, 17 How. 571, involved the power-of a Probate Court of Alabama, to make an order, during the war, based on an act of the legislature authorizing an executor to invest trust funds in confederate bonds. It is said, “ No legislation of Alabama, no acts of its convention, no judgment of its tribunals, and no decree of the confederate government can make such a transaction lawful.”

It is further said, That the acts of the several states, in their individual capacities, and of their different departments of the government, executive, judicial, and legislative, during the war, so far as they do not impair or tend to impair the supremacy of the national authority, or the Just rights of citizens under the constitution, are, in general, to be treated as valid.”

Huntington v. Texas, 13 Wall. 650, turned on the power of the government of Texas, during the rebellion, to pass title to certain bonds of the United States, owned by the .state. It is said, “ whether the alienation of the bonds by the usurped government, divests the title of the state, depends, as we have said, upon other circumstances than the ■quality of the government. If the government was in the actual control of the state, the validity of its alienation must depend on the purposes and object of it.”

The same point was before the Supreme Court in Taylor v. Thomas, 22 How. 479.

The rebel legislature of Mississippi, passed an act authorizing the issue of $5,000,000, in what was called “ cotton notes,” issued in form of currency, with which the state purchased cotton during the blockade. It is said, “ That the legislature in question, subsequent to the adoption of the secession ordinance, and, of the ordinance by which the state acceded to and became a member of the insurrectionary confederacy, ceased to represent the state as a constitutional member of the federal union.”

These usurped state governments were not the states, and. while the states, in the legal and constitutional meaning of term, were still in the union, the political organization, the governments in armed rebellion, were insurrectionary and unlawful. It did not reDresent the states as members of the federal union.

In Thorington v. Smith, 8 Wall. 1, the character of the confederate government, formed by the seceding states, is considered, as it affected contracts of citizens, within its military lines. It is styled a government of “ paramount force,” whose existence is maintained against lawful authority by active military power. It is said, its existence was never acknowledged by the United States, even as a de facto civil government, but, while it existed, it was necessarily the duty of private citizens to acquiesce in its authority, and for such obedience the private citizen was not liable to his lawful government. On this ground, between citizens resident within its jurisdiction, a contract to pay in confederate notes, was valid.

In support of this view, is the case of United States v. Rice, 4 Wheat. 203, where it was held, that the inhabitants of the village of Oastine, in Maine, which was captured by the British in the war of 1812, and held until the treaty of peace, in 1815, passed under a temporary allegiance to the British government, which, as to them, suspended the operation of the laws of the United States.

So the military conquest and occupancy of Tampico and the state of Tamaulipas, during the Mexican war, by the army of the United States, did not make that territory a part of the United States, but as to other nations, while it was so occupied, it was deemed a part of the United States. Fleming v. Page, 9 How. 66.

In Livingston v. Jordan, Chase’s Decisions, 454, the Chief Justice says : “ The courts of a state forming part of the Confederate States, had no jurisdiction, during the civil war, over parties residing in states which adhered to the national government.”

This case is important because of its similarity to the present.

A party acting as proohien ami for infants, owners of a plantation situate in that state, but who resided in Maryland, filed a petition, in 1861, in the Court of Equity of Sumpter county, South Carolina, where the land was situate, on a contract for the sale of the property by such party, and asking for confirmation. The sale was confirmed in March, 1861, and deed was made for the property to the purchaser.

Upon coming of age, and after the war, the infants repudiate the sale, and brought ejectment, and their right to recover turned on the validity of this decree, made on the application of their next friend. This was impeached on two grounds: 1st. That the contract of sale was made without authority to bind them. 2d. That the war suspended the power of the court to bind residents of Maryland.

Upon this last point, it is said : “ The jurisdiction of the state court over the plaintiff, whatever it was, terminated when the civil war broke out. Upon that point we entertain no doubt. As between parties residing in the State of South Carolina, and parties residing in the states which adhered to the national government, between whom war-made intercourse impossible, there could be no jurisdiction in the courts of South Carolina, while the war continued, by which the rights of non-residents could be injuriously affected.” While these remarks were not necessary to the decision of that case, they are nevertheless in point as the opinion of an eminent jurist.

Brooks et al. v. Feler et al., 85 Ind. 402, was a bill of review filed in Indiana after the war was over to review a decree made on an original suit commenced in 1861 by the plaintiffs’ attorney, in which a decree was rendered during the war. The attorney had been employed just before the war by the plaintiff, who resided in Virginia, but who had no knowledge that the suit had been commenced or prose cuted to unsuccessful j udgment until after peace was restored. The court say a state of war existed between Virginia and Indiana, and that it was error of law to render judgment; that the court had no legal power to do so. We cite this case in support of the proposition before us, but without assenting to its application to the ease before the court of an adhering state. (See recent case in 66 111.)

In Mosely v. Tuthill, 45 Ala. 646, the validity of an order of the Probate Court of that state, made in 1868, to sell lands, while the state was under the control of the insurrectionary government, was considered.

The court say : “ Undoubtedly the court that made the-order for this sale was not a court of a state of the Union.” The same view was distinctly announced by JusticeWoodbury, in 1846, in the case of Scott v. Jones, 5 How. (S. C.) 378. Speaking of the unauthorized government, which had been erected in the territory of Michigan, before the admission of that state into the Union, he says r Such conduct by bodies situate within our limits, unless-by states duly admitted into the Union, would have to be reached either by the power of the Union to put down the-insurrection, or by the ordinary penal laws of the states or territories within which these bodies unlawfully organized are situated and acting; while in that condition their measures are not examinable at all by writ of error to this court,. as not being statutes of a state or member of the Union.”

In Illinois it has been held, that a citizen of that state-might maintain an attachment against a resident of Alabama during the war,.and, if no objection was interposed,, proceed to judgment and sale of the property, notwithstanding the war, and that proceedings to condemn land' might be had under the same circumstances. Mixer v. Sibley, 53 Ill. 61. While this proceeding would be regarded as binding in the state courts of Illinois, it would hardly be recognized, in another state, if an action was brought on .such a judgment.

Ludlow v. Ramsey, 11 How. (S. C.) 581, was an attachment against a defendant, who had voluntarily left his residence in Tennessee, where the action was, and for the purpose of engaging in hostilities against the United States, and for that reason he could not “ be permitted to complain of legal proceedings regularly prosecuted against him as an absentee, on the ground of inability i;o return, or to hold communication with the place where the proceedings wez*e conducted.”

On the contrary, it was held, in Dean v. Nelson, where the defendant was ordered out of the city of Memphis by Union officers,.and while within the confederate lines proceedings in attachment were had against him. "Bradjey, J., says:

“ The defendants in the proceedings wei’e within the confederate lizzes.

“ Two of them had been expelled the Union lines, and not pez’mitted to return the other had never left the confedez’ate lines. A notice directed to them, and published in the newspapers, was an idle foz’m. They could not lawfully see or obey it. As to them the proceedings were wholly void.” Dean v. Nelson, 10 Wall. (S. C.) 158. See also Don v. Lipman, 5 Clarke & Fin. 1.

So in R. R. Co. v. Trimble, 10 Wall. 367, a decree in equity in one of the loyal states against a party, who, having been engaged in the rebellion, was a prisoner of war of the- United States outside of the state, and against whom there was no service, was held of no effect, and that a sale under it was void.

In Botts & Darnall v. Crenshaw, Chase 224, one of the questions was as to the validity, of an order of the Court of Hustings, of Virginia, a court of general equity jurisdiction, made •on the application of plaintiff’s attorney, during the war*, by which the attorney invested his client’s money in Confederate bonds. The plaintiffs were resident citizens of Kentucky. Judge Chase says : “ They being citizens of a state adhei’ing to the United States, residing there, this order cam not be recognized by this court, because it is an act in derogation of the rights of persons beyond the jurisdiction of the de facto government of Virginia, of which the court Was a constituent part, and because it is an act the tendency and effect of which was to sustain the course-of the confederate government, and aid in its struggle against the United States.”

In the same case it was held that the ordinary relation of attorney and client was not dissolved by the war, and, therefore, that Crenshaw, who was employed before the war to collect a claim in Richmond, Virginia, continued to be plaintiff’s attorney during the war for the purpose of making the collection and holding the money, but that his application as such attorney to the court, by which he obtained this order to invest the funds after collection, conferred on the court no power to bind the client, who resided in Kentucky. That is our view of this case, ¿that while defendant’s attorney would have continued such, notwithstanding the war, for the purpose of protecting and saving his property and rights, yet he had no power to waive any of his client’s rights, as he did, by failing to plead a suspension of proceedings because of the war, much less could he consent that the ultimate rights of his client should be determined by a court which was a constituent part of a defacto government, that had no power over citizens of the United States beyond its military lines.

The regular course of justice was interrupted by revolt; the United States courts, post-offices, and other agencies of the general government were closed; its laws were ignored and defied. This new regime had a “ boundary marked by a line of bayonets, which could be crossed only by force.” Dy the public law of the civilized world, the judge, attorneys, officers of the court, and jury, were the enemies of defendants, acknowledging no allegiance t.o the constitution and laws of the Union.

All intercourse was forbidden; all remedies were suspended. “ The suspension of the remedy during the war is so absolute that courts of justice will not even grant a commission to take testimony in an enemy’s country.” Hanger v. Abbott, 6 Wall. 532.

It was the duty of the attorney,either to have declined, to appear as defendant’s attorney, or, if he appeared, to have taken the proper steps to suspend the proceedings. His consent to a hearing at the time and under the circumstances was not in the interest of his clients, and clothed the court with no jurisdiction.

Again, by the state of civil war, these defendants became the public enemies of the State of Arkansas and its people, and they were our enemies.

The ordinary rules applicable to all public wars between independent nations would govern in determining the powers of the courts of that state over citizens of other states? conceding to that state authority to prosecute a war against the United States. .

Mattel says: “A civil war breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge.”

In the Prize Cases, 2 Black (S. C.), 1, the court says:

“ The people of the rebel states were then to be deemed enemies of the people of the loyal states.

“ Several of these states have combined to form a new confederacy, claiming to be acknowledged by the world as a sovereign state. Their right to do so is now being decided by a wager of battle. The posts and territory of each of these states are held in hostility to the general government. It is no loose, unorganized insurrection, having no defined boundary or possession. It has a boundary marked by lines of bayonets, and which can be crossed only by force. South of this line is enemy’s territory, because it is claimed and held in possession by an organized, hostile, and belligerent power. All persons residing within this territory, whose property may be used to increase the revenues of the hostile power, are, in this contest, liable to be treated as enemies, though not foreigners. They have cast off their allegiance, and made war on their government, and are none the less enemies because they are traitors.”

It must be borne in mind that we are not considering the validity of this judgment as if it were the act of a court of ■a state government of the Union, but as the act of' a court of an insurrectionary government, that by force has supplanted the lawful government of a state in the Union.

. Neither are we seeking to determine the effect of a judgment of a state court against an alien enemy, rendered during hostilities, in the courts of the same state where rendered.

An alien enemy, residing in a state at war with his own ■state, may be proceeded against, if no objection is interposed, to final judgment, and the courts of such state would ■treat it as a valid judgment. So perhaps it may, if, after service, he departs the realm before hostilities cease, and returns to his own state; but when that judgment of the foreign state is sought to be enforced by action in his own state, its courts, whose duty it is to protect its own citizens, will treat it as a nullity, because, by the laws of war, the courts of one belligerent have no power over the subjects of the other.

All judicial proceedings as between such enemies are suspended. “Silent leges inter arma.”

But it is said that by the act of 1790, such judgments, when properly authenticated, are to have the same force and effect in the state where sued on as by law or usage they have in the state where rendered; and Hawkins v. Filkins, 24 Ark. 286, and other cases cited in same volume, are cited as holding that the judgment of the Circuit Courts of that state during the war were valid.

Filkins v. Hawkins was between citizens resident there during '■the war. The defendant was served, and the parties, as we understand the case, were both present when judgment was rendered. This judgment might well stand on the principles we have laid down as the act of a defacto government over its own citizens within its jurisdiction.

So far as the opinion is based on broader grounds, it ia overruled in Penn v. Tolleson, 26 Ark. 546, and Thompson v. Mankin, 26 Ark. 586, wherein it is held that “ the governments established by the states in rebellion were never recognized by the United States as legal state governments,” and that “ service made during the* rebellion by a confederate court is not binding on the party, to appear, and any decree or judgment thereon is a nullity.”

We have been referred to the cases of White v. Cannon, 6 Wall. 443, and Pepin v. Lachmeyer, 45 N. Y. 27, in support of the power of these state courts 'after secession to-render valid judgments.

In White v. Cannon the ordinance of secession of the state was passed January 26, 1861, and the judgment was-rendered January 31,1861, between parties before the court. It was suggested by counsel that the judgment was rendered-after the passage of the ordinances of secession, and therefore void.

To this, the court say: “ That ordinance was an absolute-nullity, and of itself, alone, neither affected the jurisdiction of that court nor its relation to the appellate power of this-court.” The mere passage of such ordinance did not abolish the court as a court of the lawful government.

Pepin v. Lackmeyer related to the validity of a judgment x’endered in a state eoui't of Louisiana, in New (Means, in> Februaxy, 1863, after the city had been under federal authority for nearly a year, between resident citizens. The militaxy commander had, on taking possession of the city, in May, 1862, issued a proclamation announcing “ that civil causes between party and party will be refex’red to the ordinary tribunals,” under which the state court -continued to-hear and determine causes. The president’s proclamation exempts from its provisions such parts of the insux’gent' states as became within the Union lines.

Blackwell v. Willard, 65 N. C. 555, is a late case bearing upon the validity of certain judicial proceedings, during the rebellion, in a suit pending prior to the war, wherein a. citizen of New York was complainant. Under an order of court, a sale of real estate had been made in November, 1860, on deferred payments. The purchase-money was paid, after the war commenced, to the clerk and master of the court. The court, instead of suspending proceedings in the case, made an order at the Eall term, 1861, that the master had authority to receive payment of such deferred payments as the purchaser may desire to pay. It was held that “ the relations between the plaintiffs and their counsel were terminated by war, and the steps taken afterward-in the cause did not affect them. They had a good claim against the defendants before the war began; their remedy was suspended, and was revived on the return.of peace.” It was further said, the order of the court after war existed, and the payment to the clerk and master of the court are no bar to a recovery.”

It is said that the appearance of defendant’s attorney on the final trial gave the court jurisdiction ; that there was no revocation of his authority, and that the war did pot work such revocation.

Numerous cases may be cited to show that agencies in private affairs, relating to property of an alien enemy, within the agent’s country, so far as their acts are_ not in violation of the non-intercourse regulations, and are for the benefit of his principal, or protection of his property, are not revoked. We have been referred to none, however, showing that such agencies extend beyond the protection and care of his principal’s property and interests, to the creating new obligations. The attorney in this case might well have continued his employment, for the ’purpose of saving the rights of his clients; but it can hardly be claimed that it was within the scope of his employment to waive his clients’ right to have the action suspended, and, by his appearance, confer a power upon tffe court, which otherwise it did not possess, to bind them by a judgment, when war made it impossible for him to have a day in court. If, as we conclude, this court had no power over a citizen of an adhering state, pending the war, the consent of defendants’ attorney, under prior employment, could not confer such power.

The judgment of the Superior Court is affirmed.

Scott, Chief Judge, Day, and "Wright, JJ., concurred.

Ashburn, J.

Being unable to agree with my brethren in the judgment pronounced in this action, I will give my reasons for such difference. The importance and novelty of the questions involved furnish a reason for the length of my opinion.

I will state only such facts as appear necessary to make manifest the questions in the case.

The action is founded upon a judgment rendered November 16, 1861, in the Circuit Court of Crawford county, State of Arkansas. Prior to the rendition' of this judgment, federal authority had made proclamation that the State of Arkansas was in rebellion against the constitutional authorities of the nation.

» The original proceedings in the action were in attachment, sued out in October, 1857. The plaintiff then resided in Arkansas, and the defendant in Ohio. In 1858, the defendant, as he avers in his amended answer herein, ■“ employed counsel, and appeared in the case,” to make his defense to the action. His attitude toward the action was, after that, never changed, so far as we can learn from the record. It shows vigilance on the part of his attorney, and that he continued to represent defendant’s rights, and his every interest in the action, ever after he was so employed, before and after the rebellion, throughout the legal proceedings. The action came to issue in August, 1859, upon the defendant interposing the plea of a general denial. Depositions of sundry witnesses were taken and filed in the case, prior to the rebellion, and received as evidence by the court on the trial of the case.

The action was submitted to the court, by counsel for the parties, without the intervention of a jury, and without request for delay or continuance, and judgment given in favor of the plaintiffs. Defendant’s counsel, in his behalf, interposed a motion for a new trial on the merits of the cause. Motion for a new trial was heard and overruled-; defendant’s counsel excepted to the ruling of the court in overruling his motion for a new trial. A bill of exceptions, embodying the exceptions of defendant to the’ rulings of the court, and embodying all the evidence in the cause, was signed and sealed by the court, and made part of the record in the case. No exception was taken, for the reason of the now-alleged enforced absence of the defendant, nor as to the condition of the country.

In 1867 plaintiff commenced this action in the Superior Court of Cincinnati against defendant upon this Arkansas judgment. In the progress of the proceedings in that court defendant, Eoote, filed an amended answer, in which it is not even suggested that the general authority of the counsel in Arkansas was, in fact, at any time revoked; that he acted without authority, or in bad faith, except as affected by a condition of war between sections of the country.

The answer alleges, with much circumstance, that at the time of the trial the defendant, Eoote, was residing in the loyal states. It alleges the rebellion and war then existing, the army lines established, the President’s proclamation forbidding commercial intercourse, and that the people of Arkansas — including the judge of the court, the plaintiff, and the attorney of the defendants — became and were rebels and enemies of the United States, not acting under the government or authority of the United States, but under a usurped and illegal government, called the Confederate States, and that the judge of the court was not and never had been a judge of the State of Arkansas, as one of the United States; also, that communication was made impracticable, and that by these means he, Eoote, was prevented from attending the trial, but neither claiming nor suggesting that there was any occasion for his attendance, nor that he intended or desired to attend. His answer concludes that he was illegally and forcibly deprived of the privileges and immunities of a citizen of the United -States' by the plaintiffs and the judge and officers of the court, and that the judgment therefore was fraudulent and void.

To this the plaintiffs filed a reply, averring the validity of -the Arkansas judgment.

Upon trial, in the Superior Court, the judgment of the court of the State of Arkansas was held to be “ ex parte and void.”

Was- this conclusion a sound conclusion of the law? With respectful deference for the judgment of that court, and also that of my brethren here, I think not.

As I understand the opinion of the Superior Court as set forth in its judgment, appearing in the record, it holds that the condition of civil war between the adhering and non-adhering states of the Union, and the relation of belligerents, was so destructive of the previous lawfully acquired jurisdiction of the state court of Arkansas over the person and subject-matter of the action, that its judgment and record are not prima fade evidence of anything, and can have no credit and can be of no effect whatever in the courts of Ohio. Thus holding that the act of Congress of May, 1790, in relation to'such judgment, has no force or efficacy whatever: that defendants could not lawfully defend in the court of Arkansas, and in fact and in law had no day in court.

This judgment may be impeached for cause by the rules settled in the law. But I hold it to be prima fade a valid judgment, entitled to that faith and credit guaranteed to judgments of a state court by section 1 of article 4 of the Constitution of the United States. The history of judicial decision on this question will not throw light upon the question now under consideration — Had the Arkansas court power to make the judgment made ?

It would be profitless to enter upon a general discussion of the effects of war, or the relations sustained by the belligerents during its continuance. I may say, however, that many of the common law incidents and consequencés of war — especially in relation to commerce, rights of property, and the collection of debts — have been favorably modified by an enlightened and humanized civilization. By common usage or treaty regulations, modern wars are carried on and treaties made affecting as little as possible the laws,, usages, and institutions of the vanquished. In Clarke v. Morey, 10 John. 74, Judge Kent says: “ The opinion- that wars ought not to interfere with the security and collection, of debts, has been constantly gaining ground. And the progress of this opinion is worthy of notice, as it will teach us with what equity and liberality, and with what enlarged-views of national policy the question has been treated.” This eminent judge, after citing many cases illustrative of the enlightened, equitable, and just policy of this age, concludes by saying: “ In the treaty of commerce between the United States and Great Britain, in 1795, the government of each country was prohibited to interfere, by confiscation or sequestration, with private contracts, .and it was expressly declared to be unjust and impolitic that the debts, of individuals should be impaired by national differences.”

In considering the questions involved in this case, it must be borne in mind that our civil war was not a war between foreign nations. The parties to the conflict bore to each other, prior to the commencement of hostilities, during the rebellion and afterward, such a relation that ordinances of secession — formal legislative declarations of separation— four years of armed conflict scarred with a hundred battles, did not break the bond of union that bound state to state, and each to the constitution. All attempts at secession, whether by ordinance or legislative enactment, were abortive. The ordinances and legislative enactments have, been pronounced nullities — void ab initio. 7 Wall. 700; 6-"Wall. 443.

By the armed resistance of the states in rebellion, the relations of the non-adhering, states to the national government were disturbed, and by reason of such obstruction the functions of the federal government were for a time suspended in the insurrectionary states. When the rebellion was crushed out, questions denominated reconstruction ” .arose, but none of reádmission into the Union.

During the rebellion, influences from without and necessities within induced the federal government to adopt certain principles incident to a condition of war between foreign nations — as the blockade, exchange of prisoners, etc. So that during the civil war, to the world the condition of the contending sections was that of belligerents; while their relation to each other was that of members of the same family, some of which had rebelled against the ■others and the authority of the whole. When the rebellion was at an end, no treaty of peace or of conquest was entered into by and as between belligerents. The nominal •confederacy, founded in treason, vanished in the presence ■of a restored federal constitution, as the fog upon the river in the morning sun. The men of the rebellion were told to go home in peace. They did so, and the insurrectionary states resumed their relations to the national government under the constitution.

During the entire period of the rebellion, the non-adhering states were states de jure in the Union. All their efforts in favor of secession did not, in the expressive language of the Chief-Justice, cause them to lose their “independent autonomy.” In Shortridge v. Mason, he says, “these acts (efforts at secession) did not effect, even for one moment, the separation of the states from the Union, any more than the acts of an individual who committed grave offenses against the state, by resisting its officers and defying its authority, can separate himself from the state. Such acts may subject the offender to an outlawry, but can relieve him from no responsibility, nor discharge him from no duty.” This doctrine is recited with approval in Latham v. Clark, 25 Ark. 578-9.

It is a question worthy of consideration : What was the ■condition of the state government of Arkansas after she had adopted an ordinance of secession, and war was inaugurated? She had a statp government. Was it a de jure ■or a de facto state government ? If the hítate maintained a de jure government during the rebellion, the proceedings of her courts, not in aid of the rebellion, nor subversive of the constitutional rights of a citizen, proceeded from and under the authority of a lawful government, and are valid. On the other hand, if her state government was a defacto government, still the proceedings of her courts, not in aid of the rebellion, nor hostile to the rights of the citizen under the constitution of the United States, are valid from necessity in the interests of civil society and social order. 20 "Wall. 459. In either case, this judgment of the state court of Arkansas is a valid judgment, and prima facie should receive faith and credit as such in Ohio courts under the constitution and laws of the United States, unless invalidated by some external force.

Upon principles, now too well understood to be seriously controverted, the State of Arkansas, from the day of her admission into the Union until this day, has continued in such legal relation. Texas v. White et al. 7 Wall. 700. Ohio, and other States, after admission into the Union, changed, altered and amended their organic laws without consulting the wishes or asking consent of Federal authority. Whether such renewed organic laws were in harmony with the Federal Constitution and laws could only be determined when questions arising under them were adjudicated by the Federal courts.

The people of Arkansas, before and after the rebellion, might rightfully change her constitution, and such parts ot the altered organic law as remained in harmony with the Federal constitution and subserved the proper purposes of domestic state government, and in no way operative in aid of the rebellion, were valid constitutional • pi-ovisions and legal elements of state government — among which, in this case, was the provision for a judical department, with powers and duties, such as are found in most state constitutions.

Arkansas, then, at no time derived her power to adjudicate from the confederate nor the Federal government. The authority of her courts to hear and determine matters 'in judicial form was derived from her own state constitution. Her people alone, speaking through her organic law, conferred the power on her’ courts to adjudicate.

If, however, the acknowledged legal existence of the ■State of Arkansas during the rebellion by the Federal ¡authorities is necessary to prove her state existence,.there is abundant evidence that the existence of the state gov■ernment of Arkansas was fully acknowledged during the rebellion by both the executive and legislative authority of the United States. Proof of executive recognition is found 'in the President’s proclamation of September 22, 1862, in which he expressly says to the States then' in rebellion, that the war has been, and will still continue to be prosecuted, to restore the relations between the United States and each of the states and the people thereof in which the relation is or may be suspended or disturbed.” Also in his-•proclamation of May 19, 1862, concerning compensation to the states for the gradual abolishment of slavery, &e. The •legislative evidence is found in the action of Congress, .approved March 4, 1862, apportioning to all the States in rebellion, each their full ratio of representation in Congress.

When this judgment was rendered, Arkansas was a • state de jure, having a judicial department in the full exer■cise of its. judicial functions, and having in a lawful way obtained jurisdiction over the person of the defendant and •the subject-matter of the suit, which subject-matter in no way tended to aid or give comfort to the rebellion. Such judgments should be held valid, and the court upheld in the interests of society. Prima facie, faith and credit should -be given to such judgments of such courts.

Suppose I am mistaken in regard to the legal status of •the state government' after the attempted secession,- and the state government was not de jure, then I hold that the government of the state was a state government de facto, .and, as such, the judicial proceedings of her courts are valid, •and entitled, under the constitution, to receive, prima facie, faith and credit. And I do this upon the authority of -United States v. Insurance Companies, 22 Wall. 99. In tliat case the validity of certain acts of the legislature of Georgia, made during the rebellion, were brought in «question. The court, in its opinion delivered by Justice •Strong, says, “No doubt the legislature of Georgia in 1861 .and 1863, when the enactments were made for the incorporation of these plaintiffs, was not the legitimate legislature of the state. The state had thrown off its connection with the United States, and the members of the legislature had repudiated, or had not taken the oath by which the third section of the sixth article of the Constitution requires the members of the several state legislatures to be bound. But it does not follow from this that it was not a legislature, the acts of which were of force when they were made and are ,in force now. If not a legislature of the state de jure, it was at least a legislature de jacto. It was the only law-making body which had any existence. Its metEibers acted under color of office, by an election, though not qualified according to the requirements of the Constitution of the United States. Now, while it must be held that all their acts in hostility to the Constitution, or to the Union of which the state was an inseparable member, have no validity, no good reason can be assigned why all their other enactments, not forbidden by the Constitution, should not have the force which the law generally accords to the action of de facto public officers.”

The above doctrine was laid down when the Supreme Court of the United States was considering this question, Should the United States Courts “ recognize the competency of these bodies known as the legislatures of the insurgent states, to create corporations, such as insurance, banking and trust companies,” “ With legal capacity, .after the close of the war, to enforce rights growing out of such legislation in the federal courts ? ” The answer was in the affirmative, and in the language, quoted from the decision.

This language, and the principle • involved, are equally potential when applied to the judicial department of the «State of Arkansas. When so applied it will read: No doubt tbe Circuit Court of Arkansas, in 1861, when the judgment was rendered in favor of plaintiff, was not the legitimate Circuit Court of the state for Crawford county. The state had thrown off its connection with the United States, and the judges of that court had repudiated or had not taken the oath by which the third sectibn of the sixth article of the constitution requires the judges to be bound.But it does not follow, from this,that it was not a court the proceedings of which were of force when they were had, and the judgments there rendered in force now. If not a court of the state de jure, it was at least a court de facto. It was the only adjudicating tribunal that had any existence there. The judges acted under color of office by virtue of election, appointment, or selection, though not qualified according to the requirements of the constitution of the United States. Now, while it must be held that all their acts, proceedings, and judgments in hostility to the constitution of the national government or Union, of which the State of Arkansas, was an inseparable member, have no validity, no good reason can be assigned why all its other proceedings, including judgments not forbidden by the constitution should not have the force which the law generally accords to the action of de facto public officers, de facto judges, de facto courts.

What force and effect will be given to the acts and proceedings of de facto public officers is well stated by Kent in his Commentaries, vol. 2, page 295: “ In the case of public officers who are such de facto, acting under the color of office by an election or appointment -not striclty legal, or without having qualified themselves by the requisite tests or by holding over after the time prescribed for the new appointment, as in the case of sheriffs, constables, etc., their acts are held valid as it respects the right of third persons who have an interest in them, and as concerns the public, in order to prevent the failure of justice.” In Hildreth’s heirs v. McIntire’s devisee, 1 J. J. Marshall, 206, the court, by Robertson, J., said: “ Where government is entirely revolutionized, and all its departments usui'ped by force, or by tbe voice of a majority, then prudence recommends, and necessity enforces obedience to the authority of those who-may act as pqblic functionaries, and in such a case the acts-of a de facto executive, a de facto judiciary, and a de facto• legislature, must be recognized as valid.”' See 19 Ohio, 222.

In Horn v. Lockhart, 17 Wall. 580, it was held with great-distinctness. “We admit,” says the court, “ that the acts of the several states (in insurrection) in their individual capacities and of their different departments of government, executive, judicial, and legislative, during the war, so far as they did not impair or tend to impair the supremacy of the-national authority or the just rights of citizens under the constitution, are, in general, to be treated as valid and binding. 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. . . No one that we are aware of seriously questions the validity of judicial or legislative acts in the insurrectionary states, touching these and kindred subjects, when they were not hostile in their purpose or mode of enforcement to the authority of the national government, and did not-impair the rights of citizens under the constitution.” See also Texas v. White and Chiles, 7 Wall. 700; Sprott v. The United States, 20 Wall. 457.

Now, “ after these emphatic utterances, all controversy should cease ” as to the legality of the acts and proceedings of-the respective departments of the non-adhering-states not in aid of the rebellion or an infringement of the-rights of the citizens under the constitution. All the proceedings and judgments of the courts in the insurrectionary states during the war, which vere not hostile to the Union, or to the authority of the general government, and were not in conflict with the constitution of the United States or of the states, have the same force and validity as if they had been the judgments of the legitimate courts.

Germane to this doctrine was the holding of the court in White v. Cannon, 6 Wall. 443. This was an action to re•cover the possession of land. The State of Louisiana passed her ordinance of secession on the 26th day of January, 1861; five days afterward, January 31, 1861, the judgment was rendered. The court say, in disposing of tihe •case: “ The objection that the judgment of the Supreme ■Court of Louisiana is to be treated as void because rendered isome days after the passage of the ordinance of secession ■of that state is not tenable. That ordinance was an absolute nullity, and of itself alone neither affected the juris■dietion of that court, nor its relation to the appellate power •of this court.”

Tested by the principles laid down in United States v. Insurance Companies, the judgment in this case was and is valid. The subject-matter of the suit had no relation to .anything but a civil action, commenced in time of peace, for the recovery of money due from one person to another. Nothing in the proceedings of judgment indicate any purpose or operation hostile to the Union, in conflict with the Union, or in conflict with any rights of the citizens under ¡the constitution. It was an ordinary proceeding to obtain ;a judgment, such as might have been,, had there been no war, or an attempted secession; such as is of daily occurrence in all the states of the Union before and since the rebellion.

The Circuit Court of Arkansas had, at the time the action was commenced, jurisdiction over the subject-matter •of the action; and, afterward, by the voluntary action of defendant, acquired jurisdiction over his person. “A court will acquire jurisdiction of a person in a suit originally commenced by an attachment in rem, if the party .against whom the claim is set up voluntarily appears and submits himself to the jurisdiction, demurs, pleads, and goes to trial on the issue made.” 22 Wall. 77.

In this case, as shown by the record, the defendant, after attachment,- appeared, answered by pleading the general issue, and employed counsel in the court to represent him, and prepare the case for trial. The authority of that attorney up to and during the proceedings, at the trial,and after, remained unrevoked and in full force.

A citizen of one of the adhering states, having property or rights in a non-adhering state, could lawfully appoint an agent or attorney in the locality of his property or rights, whose acts, within the scope of his authority, would bind his principal. Such is the doctrine held in Buchanan v. Carry, 19 Johns. 137. "Were there no authority on the subject, such a right and power would accord with reason and our civilization. But we are not without authority upon the question. In Robinson v. International Life Association Society of London, 42 N. Y. 54, Hunt, J., says : “A power of attorney to collect a debt, or to receive money, seems to continue valid although the principal resides in an enemies’ country.” In Moneax v. Urquhart, 19 La. Ann. 485, it was held, “An agent or mandatory entrusted with the manage, rqent and control of real estate here (in Louisiana), for his principal, who resided in one of the northern states, before and during the war, was not absolved from his, obligation to his principal by the breaking out of hostilities between the two sections of the country ; the agency continued during the war, and his acts, as such, are binding upon his principal.” To the same effect, are King v. Hanson, 4 Cal. 259; Conn v. Penn et al., 1 Pet. C. C. 496; Ward v. Smith, 7 Wall. 447-452.

It is said war forbids all communication between enemies, closes courts of the alien enemy. It does cut off all commercial relations, and ordinarily will close the courts against an enemy. But, I take it, not in this case, because the constitution of Arkansas, adopted March 4, 1861, provided:

“ That no inconvenience may arise from this change of government, we declare that all writs, actions, prosecutions, judgments, claims, and contracts of individuals and bodies corporate, shall continue as if no change had taken place in the constitution or government of this state; and all process which may have been issued under the authority of this state, previous to this time, shall be as valid as if issued after the adoption of this constitution.” — Schedule7 Sec. 1.

"When, as in this case, the énemies’ court, in time- of peace, acquired jurisdiction over the subject-matter' of the-action and the persons of the parties, and the action involves the mere question of personal indebtedness, in no way affecting the question of belligerency, and the court, invoked by the parties litigant, or their agent, proceeds to adjudicate, the judgment rendered will be valid. The party who, in-person or by his attorney, invoked the action of the court, making no objection to jurisdiction or authority of the court, will be estopped, ever afterward, from denying the authority of the court and the validity of its judgment.

It is claimed that, by reason of the war, the defendant •could not be present at the trial, and, hence, has beén deprived of a constitutional right. Is this the case ? In civil cases, the constitution makes no such provision in his favor. Once the court has acquired jurisdiction as to his person, and over the subject-matter, judicial proceeding will not be arrested by reason of the non-attendance of a party to the action. .When a party to a suit is represented by counsel, an action will not be delayed by reason of such absence, unless it is made to appear that his presence is necessary to a proper adjudication of the case. To be present at his trial, in a civil action, is a party’s privilege and common law right, but not guaranteed by the constitution. I take it, that the personal presence of the defendant, at and during the trial, was not a fact of such legal significance, that his absence, whether voluntary or enforced, would disturb the authority of the court, and this, more especially, when he had, at the court, an accredited attorney, with full power to represent his interests and protect his rights — which duties the attorney performed in an ample manner, and, so far as advised by the record, with entire freedom. And, I think, state rebellion did not revoke the authority of this agent.

A question arises, Are judgments of state courts, ren.dered during the rebellion, in civil actions, not in aid of or promotive of the rebellion, valid ?

In Hawkins v. Filkins, 24 Ark. 286, decided in 1866, the validity of a judgment rendered in Arkansas, during the rebellion, was directly called in question. It was claimed that the state court which rendered the judgment, in the time of the civil war, had no legal existence, and hence its •judgment was void. After full consideration, the Supreme Court of Arkansas held the judgment valid; and held, further, that the state courts, during rebellion, were courts de jure. The judgment grew out of litigation between two citizens of Arkansas, and is of significance here, in showing that a judgment of a state court in Arkansas, rendered during the existence of the war, is held there to be valid. Unless there is something to take this judgment out of the force of that holding, this judgment should have the same force in Ohio as in Arkansas — no more, no less.

It is claimed, by defendant, that Hawkins v. Filkins, was overruled by Latham v. Clarke, 25 Ark. 574. I think not. The action in the case of Latham v. Clarke was founded upon a promissoxy note, payable, by its terms, in “ confederate money, oxx demand.” ’Wilshire, J., who delivered the opinion of the coui't, says : “ This case presents for our -consideration axxd determinatioxx the single questioxx of the liability of a contract for the payment of confederate money.” The court holds that, “ Coxxtracts for the payment of confederate money, made between individuals in the ordinary coux’se of their private transactions, within the rebellious districts, while subject to the power of the Rebellious authoiities, are illegal and void.”

The decision of the court is put on this ground: It (the confederacy) was without money, without national ■recognition, and without credit; and for the pui’pose of supporting itself, and to carry on the war it had levied -against the United States, it x’esorted to the issue of the notes of its treasurer, commonly called confederate money. To sustain that issue, and to make it the sinew of wai*, it '.-called and relied upon its people to support and sustain these notes of its treasurer, and to give them currency and consideration as money.”

The ruling in Latham v. Clarke, is based upon the reason, as the principle of the decision, that the issue and circulation of those confederate treasury notes as money, was in aid and furtherance of the war of rebellion, and that contracts which stipulated for payment in “ confederate money ”' because one of the “sinews” of the war, were illegal and void. The case does not reach the question this court has in course of decision, and in no legal sense overrules the-case of Hawkins v. Filkins. The questions for determination in the respective cases are unlike. The one was to settle the validity of a judgment of a state court; the other the legality of contracts, by terms, payable in confederate-money.

I have endeavored to make it clear that the ordinances-of secession were utterly void; that all action of state legislatures of the insurrectionary states had, to carry the-states out of the Union, was void; that the alleged confederacy was a temporary affair, and wholly illegal; that states of the Union once organized may change, alter, and amend their organic law at pleasure ; that the bond of national union among the states is indestructible; that the-states in insui’rection at no time during the rebellion lost-their ’existence as states; that the constitutional ligament that sealed them to the Union was never broken ; that the acts and proceedings of the several departments of the state-governments, whilst in rebellion, but not in aid of rebellion,, or calculated to aid in sustaining the confederacy in war,, nor in conflict with the constitutional fights of the citizen,, were valid acts and proceedings; that domestic judgments-—-judgments where the state court had jurisdiction of the-person and subject-matter in suit, and in no way in aid of the rebellion-, were and are valid judgments. These principles, like threads of iron, underlie this whole case and all its parts, and in my judgment determine the validity of this judgment.

The Constitution of the United States, article 6, sec. 1„ declares that “ full faith and credit shall be given in. each-state to the public' acts, records, and judicial proceedings of every other state. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” As early as May 26,1790, Congress, by law, provided: “The records and judicial proceedings of the courts of any state shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court' annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the State from which they are taken.” US. Statute at Large, sec. 905.

The record in this case appears valid on its face. It is attested in due form, and certified as directed in the statute.

“ To make a record of a judgment valid upon its face, it is only necessary for it to appear that the court had jurisdiction of the subject-matter of the action and of the parties, and that a judgment in fact had been rendered.”" 22 Wall. 79.

All these conditions appear in this record. And no fact appears in the record to show that, in law or fact, the state court of Arkansas ever lost jurisdiction of the action.

"What would have been the effect of belligerency between the sections of the United States upon a judgment in the state courts of Arkansas, rendered under other conditions than this one, is not now for consideration. I am treating of this case upon the facts disclosed in its record. I hold that a citizen of a loyal state may rightfully have an attorney in an insurrectionary state during the progress of a rebellion, to defend "his legal rights in court and out, and to take care of his property in the insurrectionary state; that he may invoke the action of the courts in such rebellious state in a proper case, and if the court acts, takes jurisdication, nd adjudicates, the proceedings and judgment of such court, for or against him, will be valid, and are, prima facie, entitléd to such faith and credit as is provided in the constitution of the United States.

The constitution of the United States is the heart of the nation; the Union the artery through which the national laws are carried into every department of the state government where it is proper for them to be carried. This artery was bruised in the civil war, but not severed. By reason of insurrectionary obstructions, it failed to carry the national authority during the rebellion into the non-adhering states. So soon, however, as the war was ended, and its obstructions removed, the insurrectionary states settled into their constitutional relations to the national government and toward each other. This relation once restored, the federal constitution and laws re-entered these states with all the authority and force they had prior to the war, and embraced whatever had been lawfully done by the ■courts and other departments of state government, and whatever was then valid by law or necessity. The act of May 26, 1790, on the restoration of peace, if my conclusions are sound," found this judgment in favor of plaintiff ■dormant, but valid in the State of Arkansas, and, by authority of the constitution .of the United-States, imparted to it such vigor as to authorize the plaintiff to legally claim for it in the state courts of Ohio prima facie faith and credit. I therefore hold that the judgment was not ex parte, and is not, by reason of the rebellion, void.  