Newspaper Page Text
VOLUME XXXIX. j
MILLEDGEVILLE, GEORGIA, JUNE 29, 1869.
HOUGHTON, BARNES & MOORE,
PUBLISHERS A.NU FROBKIEIOBA.
S. N. BOUGHTON, Editor.
:o:
£ [j c £ e b c r a 1 it n ion,
IS PUBLISHED WEEKLY
IN MILLEDGEVILLE, GA,
(Corner of Hancock »ui3 Wilkinson Streets.)
At $3 a year in Advance.
ADVERTISING.
Tkansient.—One Dollar persquare of tenlinea for
first insertion, and seventy-five cents f_>.' eaeli riilise-
qnent continuance.
Tributes of respect, Resolutions by Societies, Obit
uaries exceeding six lines, Nominations for office, Com
munications or Eiiitoriel notices fur individual benefit,
charged us transient advertising,
LEGAL ADVERTISING.
Lissrnlient Opinion in tlie Two (.'uses of j whether they had a right to withdraw
Chancdly cs. Bailey «$r Cleveland i)* The from the Federal Union or CoiVsiitu-
Cevtral Railroad vs. Ward & Owen*—j tioual compact wit hunt incurring the pen-
ln the Supreme Court of Georgia, June.!<*&*<* they hazarded by so doing, hut
1868. i whether the power to wild raw is not a
j right necessarily inherent in every perfect
Iverson L. Harris, Judge. j State ? It they were perfect Slates,
It is not within the narrow confines j ihey had an inherent right to alter their
of municipal law that we are to look j forms .ofgovernment, and to institute
tor me principles upon which a correct new governments. Their obligation to
decision oi the questions presented by observe the covenants of the Fedetal
die records in the above causes can be ! Constitution was exactly the same as
made. They are to be collected from that resting upon sovereign Slates
die vast field of international law, and m their Conventions, compacts and
especially tfiat portion of it occupied treaties with each other, the engage-
j meats being between equals, conler-
! * be resolution ol the legality and con
fiscation and sale ol l he Railroad shares
. in the lirst case, and in the other ol tin'
and
imposing restric-
iverc done by them in theprosccution oj such
ins irra tion, were illegal and void.
If the late war had been marked
merely hv the armed resistance uf some
of the citizens of the State to its lawi,
or to the laws of the Federal
Government, ns in the cases in Massa
chusetts in 1769, and in Pennsylvania
in 1793, it would very properly have
been called an insurrection, ami the acts
of such insurgents have been held as
illegal, the relations of the States, to
wards each other not being affected
politically thereby, and those citizens
in revolt, not having acquired the epi
thet and privileges ol enemies.
But when such insurrection covers a
Sheriff's Sales, per levy of ten lines, or less, $2 50 i ^g'^'tlj °! 'he consideration of the prom
•' Mortgage fi fu sales, per square 500 issurv note eiveil for the services oft hr
Citation* for Letters of Administration, ami' , . - ‘ » 1 me services or 111
plaintiff in error as a suostitule in tin
Guardianship, 3 00
Application for dismissiou from Administration, 3 00
“ “ “ “ Oor.rdtiinsL.ip,- 3 00
“ “ leave to iell Land 5 00
“ for Homesteads, 175
Notice to Debtors and Creditors, 3 00
Sales of Land, &i., persquaie 5 00
“ perishable property, 10 days, per square7-- 150
Estray Notices, 30 days, 3 00
Foreclosure of Mortgage, per sq., each time, 100
Applications for Homesteads, (two weeks,) 1 75
LEG A L AD V EKTISEM ENTS.
Sales of Laud, &c., by Administrators, Execul
or Guardians, are required by iav.*to belie!
first Tuesday in the month, between the bom s of H
in the forenoon and 3 in the afternoon, at the Court
House in the County in which the property is situated
Notice of these sales tntist be given in a public gu-
zette 40 days previous to the day of sale.
Notices lor the sale of personal properly must be
given in like manner 10 days previous to safe day.
Notices to the deb tots and creditors of an estate
must also be published 40 days.
Notice that application will be ma te to the Court ol
Ordinary for leave io sell Land, &c , must be publish
ed for two months.
Citations for letters of Administration. Guardianship,
Sic., must be published 30 days—for dismission from
Administration, monthly three months—for dismission
from Guardianship, 4(1 days.
Rules for foreclosure of .Mortgage must be publish
ed monthly for four months—for establishing lost pa
pers tor the full space of three months—for conipell
ing titles from Executors or Administrators, Where
bond has been given by liiedtoeased, tho full space of
three months.
Publications will always be continued according to
these, the legal requirements, unless otherwise ordered.
Book and Job Work, of all kinds,
PROMPTLY AND NEATLY EXECUTED
AT Til IN OFFICE.
ranks ol lhe Confederate army for ome
of the [fomissors, can depend, in my
opinion, only on two propositions. If
either of those propositions be true, the
judgment of the majority of litis Court
cannot tor a moment, be supported.
Those propositions tire :
1st. If 1 he Stales which withdrew
ring rights
tions. J lie reasons of justification j a Territory or Stale, and the citizens
for a breach of their engagements jare in arms, not by their own will, hut
should be so strong as to vindi- j by the compulsory power of the State
cate their acts before lhe world of pub- j Government, such resistance assumes
iic opinion. Whether broken with or j ihe proportions, and is acknowledged
without adequate cause, or however ( by the nations as ciril war.
those engagements may have been In the Supreme Court ofthe United
sought to be enforced, the important j States, in what are familiarly known
fact Stands out unaffected by any of as the Prize Cases—reported in 2nd
these considerations, that theactsdone Black, p. 066—it was urged in argu-
were acts of sovereign or perfect .States, rnent, that the people ol tlie South were
From what I have said it will ap- insurgents, that they were traitors, and,
pear that 1 assert as propositions which as such, could not make war. To this
. from the Federal Union and formed af* j I think cannot successfully he coritro- Justice Crier, delivering the opinion of
1 terwards the Southern Confederacy, verted— the Court, replied; “The law of na-
lsi. That the Federal Constitution tions is called the law of nature. It is
were sovereign or perfect States at that
tune, as such Stales, they had a right
to engage in public war with those
States which continued iu the Federal
Union ; or,
2d. If the Stales attempting to with
draw from the Federal Union, formed
the <lc facto government called the
Southern Confederacy, and engaged in
war with those which did not attempt
to withdraw, and that war was recog
nized by the Federal Government as a
civil war, and the Southern Confedera
cy as a belligcraht. power, then from such
was made bv the people of separate, founded in the common consent, as
sovereign and independent Stales. well as the common sense, of the world.
2. I hat ratifying the Federal Con- It contains no such anomalous doctrine
stitut ion by separate Stale Conventions, as that which this Court is, for the first
they, by such action distinctly asserted time, desired to pronounce, to wit :—
their sovereign and independent char- That insurgents, who have risen in re
ader as States. hellion against their sovereign, expelled
• 3d. f hat the Federal Constitution her Courts, established a revolutionary
contains, within itself, no surrender of government, organized armies, and
commenced hostilities, are not enemies,
because they are traitors, and a war
levied on the Government by Iraitors,
in order to dismember and destroy it,
lllillcbgcbillc business pirfetonu
Attorneys at Law:
BRISCOE, L. H., City Hall.
HARRIS, IVERSON L, Hancock st-
KEXAN & KENAN, Hancock street.
McADOO. W G, over Stet-on’s Store.
McKINLEY, W &. A, over Clark’s l>iu£ Store.
NEWELL & WILLIAMSON, Newell’s Hall.
SANKORI), DANIEL B., Granite Front.
WHITE, X. W., Masonic Hull.
Physicians :
CASE, G D, office at residence on Wayne st.
EDWARDS, U., office at resident 11 Jefferson st.
HALL. W. II., office at late residence on Hancock st.
HERTY.J W., office over J M Clark’s Ding Store.
HOLMES, JAS , Wayne st., north Masonic Hall.
WHITE, S G.. office at residence on Jefferson st.
xScntist:
G. W. JONES, office in Dnn.-n Bank building.
Dry Goods.
BARNETT, W., & CO.. Hancock st-
BISCHOF, A. Milledgeville Hotel.
JOSEPH. A.. Waitzfelder’s Old Stand.
ROSEN FIELD, J. & BRO . Milledgeville Hotel.
THOMAS, H. W. & CO., under Newell's Hall.
WINDSOR, T. T. & CO., “
Drug- Store :
CLARK, JOHN M., S K cor. Wayne & Hancock sfs.
Groceries:
BROOKS, N'B & CO., Hancock street.
CAUAKER, T. A., S W cor Wayne A. Hancock sts.
COMl’VON. P. M. & SONS, Masonic HalL
CONN. W.T., Brown’s New Building.
CUSHING WALLS, Hancock st.
ELLISON, W., Washington Hall.
JOHNSON, J. L. & CO, East side Wayne st.
KIHLt, S J. East side Wavnc st.
MUNDAY. C B & CO, WeVt side of Wayne st.
PITTMAN & PERRY. West side of Wayne st.
SKINNER F. &. CO., Milledgeville Hotel. (P. O )
STETsON, W S & BROS, Granite Front.
TEMPLES, If.. Hancock st., opposite Masonic Hall-
WINDSOR, TT & CO-, 1st door south Drug Store. |
WRIGHT & BROWN, West side Wayne st.
Millinery;
MRS. LEIKENS. N W cor. Wayne Sc Hancock sts.
MRS. A. P. LIND RUM. Brown’s New Building.
Jewelry: .
SUPl’EK, JAMES, Waitzfelder’s Building.
WEIDEXMAX, GT, Brown’s New Building.
Warehouse:
JONES, JNO Sc CO., Hancock st.,(near Jefferson st.)
Bar Rooms:
CALLAWAY. L X, Hancock st.
HOLDER. J II, Washington Hall.
LEWIS, E. G., Mitle igeville Hotel.
TOLL & DOERFLIXGEK, Hancock st.
Confectionery and Toys:
CoXX.WT, Brown’s New Building.
Buygy, Wagon and Furniture Shop.
CAKAKER, W Sc J, Masonic HalL
Shoes and Leather.
TRICE, E, Washington Hall.
Refreshment Saloon:
LEIKENS, G, N W cor- Wayne and Hancock sts.
Tin, Stoves and Honsc Furnishing’ Goods.
STALEY, JOSEPH, West side of Wayne street.
Bakery:
DOERFLINGER, J K, in rearof MeComb’sold Hotel
their individual character as States.
4iir. That being perfect States, the
Southern States, renouncing the obli
gations of the Federal Union, had
recognition, the Southern Confederacy ! 9n inherent right to form, as they did, is riot a war, because it is an insuriiec-
was invested with all the belligerent the Southern Confederacy. , tion.”
rights and powers which belong unde- j 5th. That as perfect Stales, they had In this extract there are two maleri-
rnahly to sovereign States or nations a right to engage in war, as other sov- al declarations ; 1st, it was a tear, arid
engaged in public war,or in other words, ereign Slates could do. i 2nd, 1 hat lire citizens of the Southern
the question is, whether the war be- If the proposition, then, he true, that Confederacy were the enemies of the
tween the States was a public or a civil 1 they were States, then the war in which Federal Government. The war was,
wtir.
government, tlien,*could rightfully do,
in carrying on the civil war and main
taining its resistance, what a free and
independent Stale could do—the meas
ures of right and power and means be
ing precisely the same in both belliger
ents. It follows from this postulate,
that in the administration of justice in
the decision of questions before its
Courts, indeed, in all matters touching
its own defence or security, the actsot
the several departments of a belliger
ent power or de facto government, are
as legal and unquestionable as are
those of independent nations.
It is insisted by the counsel for the
C. R. II. & Banking Company that the
Prize cases shew that nothing more
was decided by them than the exist
ence of war and of belligerent fights
whilst the war continued.
If by this they meant to say that the
Supreme Court of the United Slates
held that it was an insurrection only,
and did not change the relations of
the States engaged so as to make
their citizens respectively enemies to
each other, they have greatly misun
derstood the extent ol the principles of
public law upon which lhe cases were
decided.
The Prize cases admit that in organ
izing the rebellion, the Stales acted as
Stales claiming to be sovereign; that it
was no loose organized insurrection,
having no defined boundary or posses
sion, it had a boundary marked by
lines of bayonets, and south of this line
is enemies ferritory, claimed and held in
possession by an organized hostile belli
gerent power.
But counsel say that the belligerent
rights belonged to the Southern Con
federacy only whilst the war continued.
It is certainly true, belligerent rights
exist only whilst war continues, and it
this truism was all that was meant iu be
be asserted, it would not have challeng
ed remark: but, if thereby, it was
| meant to assert, or covertly to insinu
ate, that the conquering Government
could at iLs will or pleasure retract
City Government.
Mayor—Col. L. 11. Briscoe.
Aldermen.—1. Josepli Staley; 2. Dr. S. G. White;
3 E. Trice; 4. Win. A. Williams; 5. P. T. Taylor,
6 Dr. W. H. Halt.
Clerk.—Peter Fair.
Marshal.—John B. Fair.
Sexton.—Peter Ferrell.
“Direct Trade with Europe.”
J. II. ASHBRIDGE
Of New Orleans.
SJ. S. HUTTON,
^ Of Macon, Ga.
J. H. ASHBRIDGE cfc CO.,
COMMISSION MERCHANTS
AND
General Purchasing Agents.,
LIVERPOOL..
ASUBKIDGE, SMITH A CO.,
NEW ORLEANS.
Consignments solicited.
Particular attention given to the sale of Southern
lands to European capitalists and intending Immi
grants.
Orders for loreign goods executed on best possible
terms.
May 4, 1869. 40 ly*
Dr. Tuffs
Sarsaparilla and Queen’s Delight,
The Great Alterative an«i l»!ood Purifier.
Expectorant,
A pleasautand sure enre for Coughs, Asthma, See
Vegetable Liver Pills,
For Dyapepbiti, liillioufliieK*, foe.
Improved Liquid Hair Dye,
Warranted the best in use.
For sale in Milledgeville by
L. *W. HUNT & CO.
May 11, 1869.41 6m
A CS- S3
XAT A \TT'I?TY f SAVE YOUR RAGS AND
W AJM 1 till f l SEND THEM TO THIS
OFFICE ! The highest market price paid for clean
white cotton rags! Gather them up and send them
in.
Fed. Union OfEce, Dec. 29.
UT ADKIFTt Or, Tin* Tide* of Fale.—
This id a deeply interesting Novelet, hy Amanda
M. Douglas,just begun in that first class Weekly, the
Saturday Evening Post.
Send for a Sample Number, containing the first por
tion of the story, which will be furnished gratis. Do
not delay, or they will be exhausted. Terms of Tlie
A*»at, $5 50 a year (witli u beautiful Premium En
graving), 6 copies for $8- Address II. PETERSON Sc
CO., 3PJ Walnut SL, Philadelphia. 42 tf.
»ry Hides Wanted.
The highest market price will be paid for DRY
HIDES at the Family Grocery Store of
T. A. CARAKKE, Agent.
Milledgeville, April 6th, 1869, 36 tf
If the view that I have taken of our
systems of government be founded in
fact, (and I think il is confirmed b}’ all
American history,) il must bo conced
ed by all who reason, that when the
^Federal Constitution ofl7S9 was adopt
ed by the conventions of the separate
States then ratifying it, they were each
sovereign and independent States, with
an unquestionable right either to agree
to or reject it. If they were then sov
ereign and independent States, and
could not have been coerced by their
associates under the articles of confed
eration, ’o agree tothe more perfect, union
of the Federal Constitation, the im
portant inquiry arises and demands a
definite answer—when anti by what in
strument was their sovereign and sepa
rate existences as States lost or surren
dered ? That sovereign powers, which
were withheld by the Slates from the
Confederate Congress, which preceded
the adoption of the Federal Constitu
tion, were by the latter instrument,
delegated fo the departments of gov
ernment under it, tor the exercise ol
those powers for the benefit of the
States thus united, is undeniable ; but
upon the authority of what publicist
can such delegation to a common agent
of such sovereign powers be held to be
a surrender of sovereignty i
A complete answer to those who say
that the sovereign characterofthe States
w.is surrendered by the creation ofthe
Federal Government, will be found in
the following extract from Vattel; “Fi
nally, sovereign or independent States
may unite themselves together by a
perpetual confederacy without ceasing to be
each individually a, perfect State ; they
wilt together constitute a Federal Re
public ; their joint deliberations will
not impair the sovereignly of each
member, though they may in certain
respects, put some restraint on the ex
ercise of it in virt ue ol their voluntary
engagements. A person does not cease
to be tree and independent when he is
obliged to fulfil engagements which he
has voluntarily contracted.” The lat
ter portico of this extract is conclusive
that tfie States adopting the Federal
Constitution did not cease to be free
and independent, because they entered
it,; -i;ennuis with each other, and
could iu consequence thereof, be
compelled to fulfil the engagements
which they bad voluntarily contracted
Thus it is apparent that the obligation
to fulfil cove nants made by a sovereign or
perfecL State is entirely compatible
with continuing sovereignty and inde
pendence. 1 may go a step further and
concede that those Stales who suffer
by a breach of such covenants, may, as
in all cases of leagues, conventions,
compacts and treaties, (for in principle
they stand precisely on the same loot
ing,) redress themselves as sovereign
and independent States can do : but
because such rights of redress have at
tached, they can in no wise affect the char
acler of the States, breaking their cove
nants as Stales. Let it be borne con
stantly in mind, that that character re
mains unaltered and unalterable by any
violation of their covenants. 'I here ts
no fact more indisputable than that, it
any prominent advocate of the Federal
Constitution had in any one ofthe Stale
Conventions, either directly or indi
rectly, intimated an opinion, that by
the ratification of the Federal Consti-
tuion, the Stales surrendered their sep
arate individuality and sovereignty as
Slates, such was the extreme jealousy
for the maintainance of State sovereign
ty, such an opinion, or intimation of
opinion would ha\e led to the prompt
and overwhelming rejection of that in
strument.
This contemporary history ought,
with every man seaking to understand
the structure of American Govern
ments, to be decisive of the great point,
that the States were as sovereign after
the ratification of the Federal Constitution,
as they were under the articles of con
federation.
The inquiry is then, the States being
they engaged with the other States re- j according to the Supreme Court of the
maining in the Federal Union, was a j United States, a civil war.
pub tic war. If the war was a public
war, it can admit of no doubt, that in
its prosecution, according to the rules
and rights of war, whatever was done
by them was legal, and is so regarded
by the world.
To the Slates, thus making public
war, belong the rights of raising and
maintaining armies, coining money,
borrowing money, using the public
credit, issuing treasury notes, employ
ing all the instrumentalities necessary
or appropriate to their defence, weak
ening the power of the adversary, as
by captures on sea or land, and also
by confiscating enemies' property within
theii limits.
In Brown vs. The United States, S
Crancfi, 143, it is said that as to en
emies' property found within the terri
tory of a belligerent power the right of
confiscation is fully admitted by all ’tub-
licist. War is not itself, an absolute
confiscation. It simply confers the right
to confiscation, which right is enforced
by legislation. The enemy is not di
vested of bis property by war. His ti
tle remains in full vigor until a, hostile
seizure and possession lias impaired his
title.
Whilst the practice of declining to
confiscate debts and credits, and the
private property of an enemy, will be
found to be the wisest and most liberal
policy, and which will, in progress of
time, become the settled rule of all civ
ilized nations, at this day, by the laws
of war, the right of confiscation is an
uncontrolled power, belonging to sover
eign belligerents.
From the foregoing line of argument,
it must be apparent that I entertain the
opinion that the recent war between
the Slates, was a public war, and that,
therefore, tite actual confiscation by the
Courts ofthe Southern Confederacy, of
the Railroad shares owned by North
ern citizens, then the enemies of the
Southern Confederacy, was authorized
by the laws of war, and that the purchas
er thereof, under a sale after its condemna
tion, acquired a valid title, and further,
that the note given in the other case, to
the substitute, to take the place ofthe
maker in the Confederate ranks, was
founded on a legal consideration.
inee delivering, orally, in June last,
1 have, before expressed tny own
conviction that the war was a public
war, as much so, indeed, as the recent
war between Prussia and Austiia ; but
as a tribunal, to which this Court is bound
to conform its judgment, in such cases, has
decided it to have been a civil war, my
associates are constrained,by that judg
ment, to ignore the idea that it was no
more than an insurrection. They are
bound to treat it as a civil war, drawing
a/ter il all the consequences which jlow
from such recognition. “A civil war,”
savs Vattel, “breaks the bands of so
ciety and goverment, or, at least, sus
pends their force and effect. It pro
duces, in the nation, two independent
parties, who consider each other as en
emies, and acknowledge no common
judge. The two parties, therefore,
must, necessarily, be considered, at
least fora time, as constituting two sep
arale bodies, or distinct societies.—
Having no common superior to judge
between them, they stand in precisely
the same predicament as two nations
who engage in a contest, and have re
course to arms.” This being the case,
it is very evident that the common taws
of war, those maxims of moderation
and honor, ought to be observed by both
parties in every civil war. A civil war
is never proclaimed eo nomine, against
actual insurgents. Its actual existence
is a fact which a Court is bound to notice
and to know. Its true test is to be found
in the fact that the regular course of
justice is interrupted by revolt, rebel
lion or insurrection, so that die Courts
of justice cannot be kept open. A civil
war exists,and hostilities may be prosecut
ed on the same footing as if those opposing
the Government weic foreign enemies in
vading the land. Mr. Wheaton in bis
treatise on the law of nations, says :
“The general usage of nations regards
such a war (civil war,) as entitling both
the contending parties to all the rights of
war against each other, and even as re
spects neutral nations.” Mr. Justice
Nelson, in delivering the dissenting
opinion of the minority, in the Prize
Cases, (the Judges differed only as to
the point of time when the United Spates
Government recognized the existence
of civil war,) said :
“In the case of a rebellion, or a
that the Central Railroad and Banking
Company should be decreed io cause
appropriate entries of the ownership of
\V ard and Owens to be made on the
block-book of the Corporation. It must
follow, also, in ihe other case, that the
note given bv Bailey and Cleveland
to Chaneely for his services as a sub
stitute for Bailey in the Confederate
armv is founded on a rainl consideration,
and that judgment should have been
rendered in favor of Chaneely
The termination of the civil war in
the conquest of the Southern Confed
eracy as a belligerent power, produced
consequences winch the necessities of
this argument do not require me to
consider further than to say, that, be
yond all denial, the States composing
it remained as States during that war
with perfect organization, performing
all their functions with the same regu
larity as they had. previously to the
war. Conquest dissolved the Confed
erate Government, but the States com
posing it remained. The conquest re
stored the authority of the Federal
Government where it had been dis
placed by the Confederate Govern
ment, and conferred the right onjy to
change or alter (be political laws or in
stitutions adverse to its own, accord
ing to its policy or will; but conquest
did not, could not give to the con
quering Government any power over
the executed, and past, so as to annul
that, which, when done, was legal, and
by its own concession, was a right be
longing to a belligerent power.
And here I may be pardoned for re
ferriug to an opinion entertained in
186-5 by the highest functionary of the
U. 6. Government, as 1 learned it from
the then Provisional Governor of Geor
gia, viz: “That all the acts done du
ring the civil war by the Slate Govern
ments were illegal; and that upon its
termination, there was not within the
State a single t iglitful functionary of her
own creation, with authority to legis
late, to interpret, or execute her laws.”
I mention this fact, not directly with-
N U M BEK 48.
United Stales Government and of
the States which have been con
quered, with intelligence and fidelity—
the multitude of questions which
now vex, and- will probably for
vears agitate our tribunals, and which,
at every step, are embarrassing the in
terpretation and validity-of contracts,
could receive an ea8y and correct so
lution.
I file this dissentient opinion under
lhe profound conviction that the time
is not far distant when the legal mind
of this country will be-found in entire
unison with the views 1 have expressed,
and that then the wonder will be, that
reason had ever been so demented as
to deny or ignore their conclusiveness.
From the Atlanta New Era.
Cau a Negro Hold Office in Georgia?
DISSENTING OPINION OF JUDGE HIRAM
WARNER.
(The Opinion as printed from the Judge’s manuscript.)
when the war was ended what it had i» the fine ofthe argument used to de
granted during the war, and that it could ! monstrale the incorrectness of the
treat as illegal acts which, during the j judgments of my associates, though it
war were conceded, to he legal, it is a I springs from the same mistake of re-
proposition so monstrous bom us un
mitigated iniquity, as to shock the rea
son and forbid its consideration. Com
mon sense would revolt at such a pre
tension by a conqueror, as it would be
antagonistic to all those maxims of jus
tice, honor and equality, which are sup
posed to regulate the relations of Gov
ernments in war and in peace.
Conquest gives no right to undo what,
during the war, was rightfully done.
What ever acts were done by a bellig
erent power, in the exercise iir enforce
ment of belligerent rights, stands ajtcr-
gardmg the late war as a mere insur
rection, common to the reasoning of all
of them, but to exhibit how terrible are
the errors into which men of great abil
ity, invested with immense power, do
fall, from disregarding the clear and
simple principles of public law, which
I have endeavored to illustrate and
*pp}y-
. The existence of such a political
chaos arising from civil war and con
quest, as is so distinctly indicated by
the opinion just mentioned, it is appre
hended is without a type since the crea
my disseutient opinion to the judgment 1 resistance of a portion of the people of
f my associates, I have met with, and
perused with care, the first volume of
n work, by the Hon. Alexander H.
Stephens,entitled, “The War Between
tiie Slates.” I regret that 1 am preclud
ed,, by the delay which has already oc
curred, and the pressure to forward
Lliis opinion for publication, that I can
not make, from that great work, ex
tracts that would support the train of
thought which I have expressed. I re
fer, therefore, to it generally, regard
ing this volume as the most important-
contribution ever made by an Ameri
can Statesman, to political science.—
It is destined to become a high author-
a country against an established gov
ernment, there is no doubt, if, in its
progress and enlargement the govern
ment thus sought to be overthrown,
sees fit to recognize or declare the ex
istence of a civil war, that lecognition
or declaration will draw after it all the
consequences and rights of war between
the contending parties as in the case of
public war.”
These quotations establish, beyond
dispute, that by the laws of nations,
where a civil war exists, and it has
been recognized by the government
claiming paramount authority, that civ
il war stands upon the same fooling, in
ity, and will, doubtless, be made a text j all resjiecls, as does a public war be-
book in our colleges.
Bui it will probably be denied that
it was a public war, a war between sov
ereign States. As it is not necessary
to lhe maintenance of the conclusions
to which my mind has been conducted,
to adhere to the position that it was a
tween independent nations, and sucli
recognition draws from it all the rigiits
and consequences which belong to pub
lic war. - The Act of Congress of the
13th July, 1S61, says Mr. Justice Nel
son, recognized a stale of civil war be
tween the Federal Government and
wards as they stood when done—legal i lion of man. An opinion like this might
and unimpeachable. Any other conclu- be viewed with a tolerant indulgence,
sions would make the concession of if the principles of public law were un
belligerent rights, if not sheer nonsense, settled, floating in the mind, vaguely
a mere mockery, a fraudulent device apprehended, and casually drawn into
to lull the fears of a belligerent adver- application fry statesmen ; but when
sarv at the time, and to acquire sub- j for centuries they have been explored
stantial and unequal advantages there- Ir) all their bearings, considered in all
by, and upon the cessation of hostili- their force, pursued in all their conse-
ties to re-assert ali the powers and ; quenees, and reduced to a code of deti-
claims which had been waived. ; nite rules furnishing a just and cotn-
It is not for the Federal Government, mon standard to which nations do ap-
claiming sovereign rights and suprem- | peal with confidence in the adjustment
acy over the Southern Confederacy, 1 of their controversies, ihere should be at
with which it waged war, to reduce this day no excuse for ignorance or
the latter to obedience—to treat, after j misapprehension of them. These prin-
its recognition of the war as a civil war, ciples, when they come in conflict with
the Southern States as in insurrection, the doctrines of the common or muni-
or their citizens who took up arms al cipal law, are paramount and controll-
the command of the Slates as rebels or ing. 1 esteem them of such surpassing
traitors. 1 importance for the protection of the
Its jurisdiction over them has passed South against the insolence and will of
away by its consent and acts. They can those who claim unlimited power over
be treated only ns foreign enemies, over 'he conquered, that with the design of
whom the municipal laws of the con- deepening their impression on the
quering Government cannot be extend- minds of those who have no other security
ed. That Government cannot drag than in them, I cannot forego the ternp-
the citizens of the conquered de facto tation of making a succinct summary
Government now before its municipal of those irotn which my deductions are
made.
War being the force employed by a
tribunals to answer to charges of <mt-
sou. If theie was originally, in resort
ing to arms, insurrection and treason,
that Government has condoned it by re
cognizing it as civil war; all its power
over those in arms ceased by raising (hem
to its level and terming them and treating
ed in the Federal Union, were insur
gents and rebels against the lawful sover
eign authority of the United States Govern-
perfect States "according to Vattel, not merit, and. that consequently, whatever acts
public war, I propose, therefore, tocori- . the Southern Confederacy, and made
skier the questions in the record, as j it territorial. In the recognition of civ-
they.are affected by civil war. I il war by the Acts-cf 3 3th Julv, JS6L,
My associates, when the judgments is involved, necessarily the recognition
of the majority were announced, not ofthe Southern Confederacy as a bel-
having preceded them by any exposi- ; ligerent power, or government de ftc-
tion ofthe reasons upon which they ito ; for they are synonymous. Such
were predicated, have left me without j recognition was a concession to the
any means ol reply, but by conjeciure. , Southern Confederacy of the same bei-
They are constrained, logically, I ligerent powers and rights which, the
think, in order to maintain their judg- Federal Government claimed and could
merits, to assume that the Southern exercise. It drew after it the acknowl-
States, in attempting to throw off"the • edgment that it was a government,
obligations ofthe Federal Constitution, with all the departments necessary to
and forming new government and wag-; the exercise of the powers and rights
ing war with the Slates which remain- ! belonging to government, and that they
were legally invested with such pow
ers and rights as instruments or means
essential to its existence.
Such belligerent power or de facto
Nation or Stale for its defence, or the
maintainance of its rights whenever it
acquires the character of a civil war, the
bel'igerent power or de facto Govern
ment with whom it is waged is recog-
them as enemies, and the epithets of Reb- nized during its continuance for every
els and Traitors, applied to them so ! ~
freely, through ignorance or malice, are
as inappropriate and untrue as they are
insulting and devoid of magnanimity.
Il is evident Irotn the premises, that
the Federal Government has no right
whatever to vacate the judgments ol
the Prize and other Courts ot the Con
federate Gover intent, in sequestering
or confiscating enemies }4rope.riy within
its limits, nor in any mode can it di
vest the title of a buna fide purchaser
of such properly actually confiscated, so
as to restore if to the original owner,
unaffected by what has transpired.
Il should lie remembered that con
quest gives no right to private proper
ly not seized and appropriated as boo
ty at the lime, and hence the Railroad
shares in lhe hand3 of a bona fide pur
chaser, under a judicial condemnation
and sale, not having been re-seized or
re captured by the arms ol the Federal
Government, the doctrines of the jus
postliminii could not obtain.
Confiscated during the civil war as
enemies property and sold, and not hav
ing come again into the hands of
the conquering Government, it is inca
pable of being restored to its original
owners. The claim of the original
owners is against the Federal Govern
ment for compensation or indemnity
for the loss they sustained.
If the reasoning employed in this
opinion, or, rather so much of it as
flows directly from the decisions ot the
Prize cases, and the laws ot nations be
sound, it necessarily follows that as
Ward and Owens are bona fide pur
chasers of the Railroad shares which
were confiscated by the Laws of the
Confederate Government, judicially
condemned as enemies property in one of
her Courts, and sold by a public offi
cer of that Government, and thereby
passed out of the possession and control of
that Government, that their title under
such sale, is good against the claim of
property of the original owners, and
purpose as an independent State with
all the faculties and powers of govern
ment which belong of right to inde
pendent Slates. The recognition of
the existence of civil war was an ac
knowledgment that the Southern Con
federacy was a belligerent power, or
Je facto Government—such recog
nition drew alter it, of necessity, ac
cording to the laws of nations, the right
of this belligerent power to prosecute the
war; this involved the power to raise
and support armies, employ mercena
ries, make contracts for their service,
prescribe conditions of enrolment and
substitution ; it involved the right to
command every citizen to defend the
Government, de facto, as far as he was
able. As tins duty was a legal one, as
the citizen was bound Lo obey a power
which he could neither resist or call in
question; obedience to its will cannot
subject ititn at any time thereafter lo
punishment tor such obedience to the
municipal laws of the Government a-
gaiust which lie. has borne arms. By
that Government be lias been recogniz-t—; . , r -,-r — ,
, ; 8 : also incorporeal hereditaments,
ed as a foreign enemy: rie then, when |„. „
captured, or conquered, can be dealt
with by the conqueror, only as an enemy.
Again: As the belligerent power, or
de Jacto Government has been invested
with all the powers and rights of inde
pendent States engaged in public war,
it follows that lo il belongs all the
rights and powers of Government, such
as coining money, borrowing money,
issuing its bonds or Treasurj' notes,
using its credit, weakening the resourc
es ot its adversary, and by legislation
prescribing how eijemies property
within its territorial limits may be cap
tured or seized and confiscated and its
proceeds appropiiated to public uses.
1 am persuaded that if the principles
of public law, determining the rights
and relations of States in peace and
war, and the results of conqilest
were thoroughly understood and applied
by the municipal Courts of the
Warner, J., Dissenting.
The defendant is a person of color,
having, as the record states, one-eighih
of negro or African blood in his veins,
who claims to be lawfully entitled to
hold and exercise the duties of the
office ot Clerk of the Superior Court
of Chatham county, and the question
presented for our consideration and
judgment is, whether a person of col
or of the description mentioned in the
record, is legally entitled tt> hold office
in this State, under the Constitution
and laws thereof?
The Fourteenth Amendment to the
Constitution of the United States de
clares that “All persons born or na
turalized in the United States and
subject to the jurisdiction thereof, are
citizens of the die United States, and
the State wherein they reside. No
State shall make or enforce any law
which shall abridge the privileges or
immunities of citizens of the United
States.”
The Constitution .of this State de
clares that “All persons born or natur
alized in the United States, and resi
dent in this State, are hereby declared
citizens of this State, and no laws shall
be made or enforced which shall
abridge the privileges or immunities
of citizens of the United States, or of
this State."
From the time of the adoption of
the Fourteenth Amendment, and the
adoption and ratification of the Con
stitution of this State in 1868, the de
fendant became (notwithstanding his
color and African blood) a citizen of
the United States, and of this State,
and is entitled to have all the privileges
and immunities of a citizen.
Does the fact that the Defendant
was made a citizen of this State, with
all the privileges or iinimmitum of a
citizen thereof, confer upon him the le
gal right to hold office iu this State as
such citizen? When we take into con
sideration the definition and object of
creating an office, and by w’hat authority
it is conferred upon a citizen, the dis
tinction between the privileges and
immunities of a citizen as such, aud
his right to hold office, will be at once
apparent. It will be seen that the
privileges and immunities of a citizen,
as such, is one thing, and that his legal
right to hold office, as such citizen un
der ihe authority ofthe State, is another
and quite a different question. What
is an office 1 “An office,” says Bacon,
“is a right to exercise a public func
tion, or employment, and to take the
fees and emoluments belonging to it.
An officer is one who is lawfully invest
ed with an office. It is said that the
word ojficium principally implies a du
ty, and in the next place the charge of
such duty; and that it is a rule that
where one man hath to do with anoth
er’s affairs against his will, and without
his leave, that this is an office, and he
who is in it is an officer. By the an
cient coinmou law, officers ought to be
honest men, legal aud sage, et qui meli
us sci'int et possint ofiicis illi intendere;
and this, says my Lord Coke, was the
policy of prudent antiquity, that offi
cers did even give grace to the place,
and not the place only to grace the of
ficer.” 7th Bacon’s Ab. 279 title of-
ces and officers. Blackstoue says the
King, in England, is the fountain of
honor, auti of office, and the reason
given is that the law supposes that no
one can be so good a judge of an offi
cer’s merits, and services, as the King
who employs him.
“ From tbe same principle also arises
the prerogative of creating and dispos
ing of offices; for houors and offices
are in their nature convertable and
synonymous. All officers under the
Crown carry in the eye of the law an
honor along with them ; because they
imply a superiority of parts, and abil
ities, being supposed to be always fill
ed with those that are most able to
execute them.” 1st BE Com. 271, 2.
Offices, says Blackstone, are a right to
exercise a public or private employ
ment and to take the fees and emolu-
y ments thereunto belonging, and are
2d
Bl. Com. 36.
All citizens of the State, whether
white or colored, male or female, mi
nors or adults, idiots or lunatics, are
entitled to have all the privileges and
immunities of citizens, but it does not
follow that all of these different classes
of citizens are entitled to hold office
under the public authority of the
State, because the privileges and im
munities of citizens are secured to them.
The State, in this country, as the
Crown in England, is the fountain of
honor, and of office, and she who de
sires to employ any class of her citi
zens in her service, is the best
judge of their fitness and qualica-
ations therefor. An officer of the
State, as we have shown, “ hath to do
with another’s affairs against his will
and without his leave," and such officer
must have the authority of the State