I concur in the judgment of the court, overruling the motion to annul the judgment of this court, rendered at a former term in this case, on account' of the insufficiency of the reasons assigned in support of the motion.
The reasoning of a justice of the supreme court, to sustain the conclusion of the court in any matter presented for its judgment, is not an adjudication of other questions than those necessarily involved in the decision of the cause. But thd argument is often used in other causes in aid of the propositions it tends to establish, and is a clear indication of the opinion of its author respecting such questions.
The matters treated of in the opinion delivered by the *484chief-justice in this case are of great importance, and my views in reference to some of them are essentially different from his. This is my apology for recording a dissent on issues not material to the conclusion.
I propose to speak in a general way of the subjects herein discussed. The light of many years must fall on our recent history before it can be read with accuracy in detail.
In the case of Hall v. Hall, at the present term, Judge Peters has expressed his opinion that the acts of the legislature and of the courts existing in the State during the rebellion, are absolutely void, except so far as they have been separately and formally re-enacted and adopted since the restoration of the State to the Union. I deem it my duty to dissent in some measure from this declaration.
The ordinance of secession was adopted on the 11th January, 1861, by a State convention elected by the people, under the forms of law. Up to that time, the State, in all the senses in which that word may be politically applied to the territory and the people of Alabama, was in accord with the federal government, a member of the United States, subject to the rightful jurisdiction thereof, and entitled to all the rights and privileges guaranteed by the constitution of the United States, and protected by the constitution of the State. The act of secession was void, and all the legislation in pursuance thereof, and hostile to the United States, was also void, because in violation of the federal constitution.
What became of the- constitution and laws of the loyal State of Alabama, when the insurrectionary government was put in operation? Had they no existence? - Were there no persons in the territory of the State who had no interest in, and a right to, them ? They could not be legally destroyed by that which was legally void. They were simply in abeyance, or suspense, for the want of power anywhere to enforce them. It was the duty of the federal government to enforce them whenever, and as far as it was practicable to do so, in behalf of any citizen of the State loyal to the Union.
It is said that the supreme court of the United States, has- decided that, by the law of nations, each individual, *485residing within the insurrectionary districts of this sectional or territorial war, became, by virtue of his residence, an enemy to the Union, divested of every right and privilege, and entitled only to the humanity of the lawful power.
I can not believe that such a decision has been made by that high tribunal. If the insurrection, instead of being circumscribed by well-defined geographical boundaries, had been diffused over the entire country, the principle would be impossible of application. But what is this law of nations, before which, in war, our great charter- must subside ? Is it anything more than the acts of nations, oscillating between mercy and cruelty, as reason or passion prevails ?
It is easy to see how the government of the United States, seeking to enforce its jurisdiction over the territory and the people of the insurgents States, against fierce opposition, could not stop in the midst of battle to try the rights of individuals. There is sanction in the constitution for taking the property of the citizen for the public use, and reason in postponing the just compensation until peace should be restored. If an insurrectionary district is invaded by the armies of the rightful power, and the loyal inhabitants are injured by them, it is because the paramount right and duty of suppressing the insurrection impels it to be so. If their property on the seas is captured, because owned in the disaffected district, and condemned as lawful prize to the captor, it is because, in the midst of war, justice is silent from necessity — not because the individual has forfeited his right to protection. This is what the supreme court of the United States, in the Prize Gases, and in the case of Mrs. Alexander’s Cotton, has decided; and nothing more than this. The constitutional rights and status of the loyal citizen are not lost by residence in the disturbed district, but, like the constitution and laws of his State, are in suspense, from the inability of his government to assert and defend them.
That the State of Alabama remained a State of the Union, and her citizens continued to be citizens of the Union, entitled to all the rights and privileges of such, except so far as each individual forfeited his own by his conduct, and *486subject to all the duties of such, is proved by the action of the federal government itself.
The proclamation of the president, in April, 1861, declaring the existence of an insurrection in certain States, recognizes the presence in them of loyal citizens. The confiscation act of congress, of August 6th, 1861, is aimed only at property used in aid of rebellion. The act of July 17th, 1862, to punish treason, excepts from its operation persons which held their offices before the attempted secession, and who had not taken an oath of allegiance to the Confederate States. The emancipation of slaves proclaimed by the president, September 22d, 1862, was to have no application within those States in insurrection which should be represented in congress on the 1st of January, 1863. The act of congress of March 12th, 1863, regulating the disposition of captured and abandoned property, provided for the return of its value to loyal owners. These acts, and the recognition of a loyal government in Virginia, and the sanction given to the State governments formed in Louisiana and Arkansas during the war, establish the existence in the rebel States of a population entitled to reorganize their State governments, and to possess and enjoy all the rights and privileges guaranteed by the federal constitution to an American citizen. In addition to this, the emancipation of the slaves, by a^ms and legislation, was not deemed beyond a revival of the rights of the owners, or a claim to compensation, until the 13th and 14th amendments to the constitution were secured.
If residence within an insurrectionary district stamps on each individual therein, the character of enemy to his government, entitled only to its humanity, then residence, more powerful than the constitution, dissolves allegiance, changes patriotism into crime, and makes treason a duty.
The United States, by the various acts mentioned above, acknowledged its obligations to the loyal inhabitants of the southern States, surrounded as they were with perils, as far as it was possible to do. Her judicial history should be a memorial to posterity of justice done, and right acknowledged, that in like dangers in the future, those who love the Union of the States and are willing to suffer for a *487grateful nation, may not seek security under the ruling power of their section, whether it be a frantic mob, a civil rebellion, or the cold tyranny of the lawful power.
On the termination of the war, the president put in operation a provisional government, and re-established the constitution and laws of the State, existing anterior to the adoption of the ordinance of secession. By his authority, a State convention was assembled in September, 1865, which organized a State government. Under this State government two legislatures were convened. Both the convention and the legislatures passed laws which were adjudged by the courts and enforced by the executive department. The acts of the rebel State government were recognized so far as they were not in conflict with the federal and State constitutions.' In March and July, 1867» congress, by the reconstruction laws, instituted a military government in the State, with permission to use the local civil tribunals, which were declared to be provisional only, previous to the admission of representatives into congress-These provisional governments enforced the laws made by themselves, and recognized and enforced the laws and judgments of the rebel State government, allowing, for good cause shown, a review' of the acts of its courts. In November 1867, the State convention, authorized by congress to frame a constitution and civil government for the State, confirmed the acts of the rebel government by clear implication in providing for a review of its judicial action by the legal State courts.
It is insisted that the rebel courts had no jurisdiction of the causes they determined, and that it is beyond the power of State legislation to validate their judgments; that the action of a court without jurisdiction is void, and the statute alone would constitute the adjudication upon the rights of the parties. This is an objection which ought to be conclusive against such legislation, except under those extraordinary circumstances which occur but seldom in the history of a people, and which may be admitted as exceptional cases. The federal constitution does not forbid a State legislature to exercise judicial functions. The ordinances of a State convention are of as high authority as the State *488constitution. During the war the courts remained as they were constituted under the legal government. Most of the judges were legally elected. The jurors were such as were qualified to serve by the valid law. The people retained their right to the administration of justice without denial or delay. They resorted to these courts for a decision of the issues between them. When the war was over, what hindered them, in their sovereign capacity, from enacting a bill of peace to quiet the litigation of years ? What was more just than to stamp the adjudications of the rebel courts with the character of provisional judgments, to be annulled, and a new trial granted for good cause shown.
The principle of the validity of de-facto governments, is undoubtedly applicable to the provisional governments since the war, and, perhaps, on all ordinary subjects, to that existing during its continuance. It depends, solely, on the simple and sufficient reason, that when an illegal government has existed for a considerable time, it is better to acquiesce in what has been done, than to still further convulse and demoralize society, by vainly seeking to run a thread of legality through the mode of its doing.