(dissenting.)-* — This Cause was a contest between judgment creditors concerning the disposition to be made of a sum of money obtained by the sheriff on a sale of their debtor’s property. Some of the judgments were rendered before the date of the ordinance of *567•■secession, and others were obtained afterwards. It is immaterial for me to inquire into the minute incidents affecting the superiority of the claims of the respective contestants. The decision of this court was placed entirely upon the ground that judgments rendered during the attempted secession of the State from the Federal Union, must be postponed to those of anterior date. They were treated by Justice Peters, in his opinion, as mere nullities, and by the chief-justice, as foreign judgments, constituting mere causes of action, impeachable for irregularity or undue obtainment. From these enunciations of legal principles I dissent, for many, and, in my opinion, cogent reasons.
It has been now nearly ten years since the commencement of events evolving misfortunes which have penetrated into every household, and demoralized our entire population. The point of greatest depression seems at last to be reached, and our people are beginning to recover from their deep distress, reconciled to what has transpired, and hopeful of repairing their shattered fortunes. During all this past time these judgments have been treated as valid, both by the legislative and judicial departments of the State. The people have contracted in reference to them as such, and the tenure of much property is dependent upon them To unsettle these titles, and launch anew all those whose, interests are inseparably interwoven with them, on a vast sea of litigation, will, I fear, tend to familiarize the people with revolution. It will make them incredulous of any speedy and continuing reign of tranquillity, and desirous of change, though it be for the worse. I should be loth to hold, that there could be any time or place in which human beings might exist without some regulations for the preservation of right, and the restraint and punishment of wrong — some laws and rules of society which would remain obligatory, in their effects, between themselves, at least, even after they had emerged into a more extended theatre, and were living under more propitious auspices. I admit that in ease of either successful or subdued rebellion, or where one independent nation has succumbed to another, the victors may enact such changes of domestic policy as their own government will authorize, or humanity will sane*568tion. This, however, must be done by the legislative power expressly. Otherwise, the courts are bound to recognize the rights and duties of the people between each other, as prescribed and determined by their local laws and judicial decisions, except so far as they militate against the laws and institutions of their own country.
In a practical sense, the people, the territory, the laws, the structure of the courts, the property in great measure, the offices, the government of the State of Alabama, before, during and since the rebellion, are identical. There has been an insurrection of vast proportions; and it has been subdued. The participators in it were alone amenable. Their act of secession was simply void.
The people of the State, during the war, occupied a peculiar and difficult position. If they refused to recognize and to participate in the litigation of the courts, the establishment of the Confederacy would have worked the forfeiture of their rights, through their defaults If it failed, and all the acts done under the authority of its State government were to be null and void, serious injury would result to them on account of their recognition. The issue of good or evil was thus presented to them, dependent alone upon the success or failure of the Confederacy, without regard to the purity of their intentions.
If the legislative department of the Federal or State government has defined their status during that time, it is the duty of the courts to conform their decisions to it. Has this been done ?
In the first place, the rebellion was one of great proportions, embracing at least one-half the territory and one-third of the population of the Union. It organized and conducted for four years a government complete in all its forms and functions, dealing with the lives, liberties and property of all its people. The United States exercised towards it belligerent rights, in the exchange of prisoners, the establishment of blockades, and the capture and condemnation of prizes in the prize courts. After its suppression, none of its adherents were dealt with criminally, which would have been an imperative duty if it had been merely a popular commotion or seditious obstruction of the laws.
*569There have been repeated positive expressions of the legislative will concerning these judgments. The Constitutional convention of 1867 established them, by providing for new trials under certain circumstances within a limited time. — Ordinance No. 39. The legislature of 1868 repeatedly recognized them as valid and subsisting judgments ; on the 12th of August, by an act authorizing appeals to the supreme court, and proceedings in chancery, for the correction of errors in them, if prosecuted within a specified time ; on the 10th of October, by an act extending the time granted by ordinance 39, on proof of meritorious defense, provided the judgment had not been fully paid ; on the 29th of July, by an act adopting the Revised Code of 1867, containing section 2832, providing for the issue of an execution on judgments rendered between the 11th day of January, 1861, and the 15th of December, 1865, without a revival. In addition to these instances of express recognition and adoption, there are many others of incidental and implied recognition by allusion to, repeal or amendment of laws affecting them.
The judicial and administrative departments of the government also recognized and executed them throughout, the time of the provisional government established by congress under its immediate supervision and control.
It is objected that no act of legislation can validate the pretended judicial action of a usurper, or of tribunals which had no lawful jurisdiction of the subject-matter or the parties over whom they assumed to exercise judicial authority. The fault of the proposition is in its application.
The supreme court of the United States has characterized the government established in the insurgent States as a government of paramount force, to which the United States conceded the rights and obligations of belligerents, regarding its territory as that of an enemy, and holding its citizens, in many respects, for enemies. The same high tribunal has said that it made obedience to its authority in civil and local matters, not only a necessity, but a duty, without which civil order was impossible. — Thorington v. Smith, 8 Wall. 1.
Note by Reporter. — At a subsequent day of the term, Messrs. Chilton & Thorington applied for a rehearing, and filed the following argument in support thereof.The chief-justice, in Martin v. Hewitt (present term) holding these judgments to be foreign, says : “ Accurately speaking, they (the insurgent governments) were not foreign governments, nor were the judgments of their courts foreign judgments. ”
The United States supreme court, in Texas v. White, (7 Wall. 700,) says: “Each insurgent State continued to be a State, and a State of the Union, with her obligations as a member of the Union, and of every citizen of the State, as a citizen of the United States, remaining perfect and unimpaired.” “ 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 to person and estate, and other similar acts, which would be valid, if emanating from a lawful government, must be regarded, in general, as valid when, proceeding from an actual, though unlawful government; and acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void.”
Against these legislative sanctions, judicial interpretations, and undeniable deductions from facts, are we permitted to treat these judgments otherwise than as valid domestic judgments ? Ought we to do so, if at liberty ? The law is not a Procrustean bed by which human affairs must be measured, nor does it furnish a water of jealousy, ascertaining truth beyond doubt. Like the Sabbath, it was made for man, and not man for it.
We are free to admit that this court will take judicial notice of the ordinance of secession, and of the war, and after hostilities commenced and were recognized by the government of the United States, and the Southern States *571declared in rebellion, and non-intercourse laws passed, we concede that every one domiciled in the Confederate territory must be regarded for the time as an enemy of the United States government; but the ordinance of secession had no such effect. That was a mere brutum filmen. It was the action which followed it — the forcible resistance to the authority of the government, culminating in a public war, which fixed the status of the Confederate States, and suspended the operation of the constitution and laws of the United States, not de jure, but simply because of the impracticability of their enforcement. Suppose, for illustration, that one hundred or one thousand people should assemble now in Alabama, and declare that the ties which bind Alabama to the Union are henceforth severed, and, that the State is an independent republic. What of it ? Would this affect the status of the State as respects her relation to the Union? Certainly not 1 Such a proceeding might be never so foolish or so wicked, but in law it would affect nothing. Just so; the ordinance of secession of 11th January, 1861, abstractedly considered, amounted to nothing. It was a void act, and as such could not change the status of the State, nor deprive any citizen of that protection which the constitution and laws of his country confer upon him. Now, when our judgments were rendered there had been no act of hostility, no rebellion then existed, no force applied, but simply paper declarations of independence of the United States government. It was not until the middle of April, 1861, that the first force was used in the capture of Eort Sumter. Suppose the day before this first attempt at actual hostility, the whole scheme for setting up an independent government had been abandoned, could it be said that the judgments of a State court were invalid simply because of the act of secession ? Would this, or any court have tolerated the argument, that the proclamation of a self-constituted body of men in the State, striving to withdraw from the parent government, should have the effect of placing the loyal citizens beyond the pale of protection under that government ?
We then insist upon our right to the fruit of our judg*572ment into which our contract has been merged, and which the decision of the court strikes down, thus destroying the obligatory force of the contract, and our vested right under the constitution of the United States. We submit that our right to the fruits of our judgment is secured by the fundamental law of the Union, which was over us as a shield when the judgment was rendered, and the money in controversy was levied under- it. — See Bronson v. Kinzie, 1 How. 311; McCracken v. Haywood, 2 How. 608; Gautty v. Ewing, 3 How. 707; Howard v. Bugbee, 24 How. 461; Rue v. Decker, 3 McLean, 575; Stockwell v. Kemp, 4 McLean, 80; United States v. Conway, Hemp. Rep. 313; Moore v. Fowler, Hemp. Rep. 536.
The obligation of the contract, or the judgment into which it is merged, may as readily be destroyed by acting on the remedy as upon the contract. It is the remedy, the right to recover and have satisfaction, that gives to any executory contract its binding force and obligation.
Did Alabama ever cease to be a State in the Federal Union ? If so, at what point of time, and by what act or acts ? We say, she made an attempt to withdraw, but her attempt was abortive, and she has in legal contemplation never been out of the Union. The court, in the opinion in this case, declares secession a nullity, and being void, no such tremendous consequences as putting the State out of the Union could result from this void act. If resistance and force put her out, she certainly remained in until such force was used; but we have shown that no such force was resorted to until long after our judgments were rendered. So that it results that our judgments rendered in March, 1861, are valid, even though we were to admit that judgments rendered flagrante hello, were void.
The case of Chisholm v. Coleman, 43 Ala. 204, is cited, as furnishing a correct exposition of the law, and according to that case this case must be decided for us, for in that case the court decreed pay to Judge Coleman from the 31st of March, 1862, up to the 16th of May of that year, when he joined the army as colonel of one of the regiments of the Confederate States. The court say that they can not Icnoiu that he did not remain loyal up to the latter period. *573This shows clearly that the court, in the absence of all proof to sustain the assumption, will not intend that a sworn officer of the law, a judge of one of our courts, without being impelled by some irresistible force, would, in disregard of his oath of office, commit, what this court denounces as treason against the government of the United States, by making his court an adjunct to the rebellion, and thus assisting in overthrowing the power which brought his court into being, and conferred upon him the honor of presiding over it. We invoke the maxim on ■which courts uniformly apt, “omnia presumuntur rite esse acta.” As, then, the court rendering our judgments, and the judge who presided over it, might have been loyal, as nothing is shown to the contrary, they must be presumed to have been loyal, and the judgments must be presumed to have been properly rendered.
3. We insist, that these judgments have been validated by virtue of authority conferred by the act of congress known as the reconstruction act, passed 2d March, 1867. The third section provides, among other things, “ that it shall be the duty of each officer, assigned as aforesaid, to protect all persons in their rights of person and property,’ &a.; and by the last section (§ 6) it is provided, “ that until the people of said rebel states shall be admitted by law to representation in the congress of the United States, any civil government that may exist therein shall be deemed provisional only,” &o. Now, the provisional government that did exist therein, both by its convention and laws, declared these judgments, and the several acts of the legislature not passed in aid of the war, nor opposed to the constitution of the United States, valid and binding. — See ordinance 28th September, 1865, Code, pp. 58, 59 ; Act adopting the Code, February 19, 1867; Preface to Rev. Code, page 4; Revised Code, §§ 2832, 2825, 2827.
The Revised Code was not only adopted by the provisional government, but was also adopted by the present State government, on the 29th day of July, 1868.
The ordinance of 1865, validating judgments rendered during the war, forms a part of this Revised Code; besides this, various provisions of said Code treat such judgments *574as valid beyond all question. Section 2419 of the Revised Code requires that, if no execution be sued out upon a judgment within one year from its rendition, a scire facias shall issue quare executionem non before an execution can issue, but inasmuch as the unsettled condition of the country during the war might have prevented parties from enforcing their judgments, by the issue of an execution within the year, section 2832 of the Code provides as follows: “In all cases where judgments have been rendered in any of the courts in this State since the 11th day of January, in the year 1861, and prior to the 15th day of December, in the year 1865, on which no execution has issued, execution may issue without a revival of such judgments, but no lien of any j udgment or execution existing at the last mentioned day shall in any manner be affected by the provisions of this section.” Again, in section 2825, Revised Code, the validity of judgments rendered during the war, on contracts made between the 1st day of May, 1865, (which was the period in which Confederate money was in circulation) might be tested by being vacated and set aside on motion of defendants, upon proof made, before the courts in which such judgments were rendered, that the defendants were by any means deprived of such defense as they would have been entitled to under the provisions of an ordinance entitled, “ An ordinance to ratify certain acts, judgments,” &c. Again, in section 2827, it is provided as follows: “ The parties against whom judgments or decrees were rendered in courts of record, after the 11th day of January, 1867, are, upon application within one year after the approval of this law, on the 11th of February, 1867, entitled to a new trial, upon affidavit showing that the failure to make defense to the suits, in which such judgments or decrees were rendered, was not owing to any fault on their part, and that they had no attorney present in court when such judgments or decrees were rendered; provided, that the court shall be satisfied from all the facts that may be submitted by affidavits of both parties, that a good and meritorious defense exists either in whole oy part. This section applies to plaintiffs as well as defendants.”
By ordinance of the convention of December 6th, 1867? *575(see ordinance 39,) judgments rendered since January, 1861, are expressly recognized as valid, and new trials are allowed to be had upon such judgments, provided the courts shall be satisfied from all the facts that a good and meritorious defense exists, and provided the application is made within twelve months from the date of the ordinance ; and by an act of the legislature of this State, approved October 10th, 1868, this ordinance, (No. 39,) was re-enacted, and the time for applying for new trials extended until the 20th June, 1869, provided the court should be satisfied upon the hearing of the application that a good and meritorious defense existed. — See Acts 1868, pp. 186, 187; and for the act extending said ordinance, see ib. 269,
The same legislature fully recognized the validity of those judgments, even though rendered by default, by the attempt to declare certain of them void, and to repeal the lien given to them by sections 2867, and 2b77 of the Code, but this act has been declared unconstitutional and void. Weaver et al. v. Lapsley, 43 Ala. 224.
Thus, we find that our judgments, if we concede they were rendered during the war, and were void for that reason, have been recognized and validated by both the provisional and present State conventions and legislatures, in almost every conceivable form. We submit, whether a judgment rendered in March, 1861, even though no execution had been issued upon it before, may not be enforced by execution, and this without sdre facias to revive it. If the court decide that execution can not issue upon it, then your honors annul section 2832 of the Code which declares that such execution may issue. This section of the Code is not opposed to the laws or constitution of the United States, and was not made in aid of the war; it is, therefore, a legitimate portion of the Code, as provided by the law of 186?, above quoted, adopting it, and the act of 1868, which continues it in force. We insist that the court has no power to go behind the Code to ascertain from what source its provisions have been derived; they may have been copied from the ordinances of the convention of 1865 ; from the acts of the legislature during the war, or of the provisional legislature since the war; they may have been *576taken from the statutes .of New York, as many of them were, or from other States; the simple question is, have they been adopted as a part of the Code of laws of the State of Alabama, and are they in accord with the constitution and laws of the United States and of the State of Alabama ? These questions being decided in the affirmative, we submit, that it is the duty of the court to uphold and administer them; otherwise, the court exercises legislative powers, which is prohibited to it by the constitution.
4, We come next to consider whether judgments and legislative acts simply affecting private rights rendered and enacted by the State under her Confederate organization, but wholly disconnected from the war, and not opposed, in themselves considered, to the constitution and laws of the United States, or the State of Alabama, shall be held invalid by reason of their having been rendered, or enacted, by the judiciary or legislature of the rebel government.
The great effort of all civilized governments is to assuage, as far as possible, the horrors and evil consequences resulting from war. This is demanded by the instincts of a common humanity, and the punctilious observance of this principle has marked the progress of civilization and Christianity of modern times. The judgment which the court has rendered in this case, in its results, will work out a train of evils upon the people of this State which can scarcely be computed ; such a decision, therefore, should have for its predicate the clearest and most indubitable, as well as the most inexorable rules of law and logic. It affects alike the loyal and the disloyal; those who were active in getting up the rebellion, and those who were forced involuntarily to take part in it, or persistently refused to countenance it.
We think we have shown that the rules of law do not justify, much less require, such a decision, and we now propose to fortify our position by citing some of the authorities in the supreme court of the United States, and of eminent publicists and writers on the law of nations. In Thorington v Smyth & Hartley, (8 Wall. p. 1,) the supreme court of the United States clearly defines the character of the Confederate government. It was a government of paramount force, and like Castine, while in the British posses*577sion in the war of 1812, or Tampico, while in our possession during the Mexican war, it was supreme in its authority and control while it existed. “ It made,” (says the court,) “ obedience to its authority in civil and local matters, not only a necessity but a duty.” In the case of White v. The State of Texas, (7 Wallace, 700,) it is said that, “considered as transactions under the constitution, the ordinance of secession adopted by the convention, and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The State did not cease to be a State, nor her citizens to be citizens of the Union.” — See 7th head-note, pp. 700, 701. And in the 16th head-note, page 702, it is said, “that acts necessary to peace and good order among the 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 to person and estate, and other similar acts, which would be valid if emanating from a lawful government, must be regarded, in general, as lawful when proceeding from an actual though unlawful government; and that acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void.”
All the judges of the supreme court, except Justice Grier, were agreed upon the merits of said cause; and he went further than any of the judges, in holding that the act of the government of Texas, during the war, in disposing of her United States bonds, although for war purposes, was valid and binding on the State. — See p. 739. If this decision of Texas v. White is to be maintained as the law, and the remedy given by the rebel States for the securing of private rights resulting in a judgment, is to be upheld as though the judgment had been obtained in the court of the State of Alabama while a member of the Union, then this controversy is ended and our judgments must be held valid. Why should not this court so hold?
*578The supreme court thus holds, in the absence of all recognition of the validity of such acts by the loyal State government, what this court, as we have shown, are fully authorized to decide by the ordinances and statutes of the loyal State.
The people of the State must need have some law and some mode of administering and enforcing it, even during a rebellion. They can not live, and ought not to be required to live, in a state of anarchy. Upon principles of pure Christian humanity, no Christian sovereign would require of subjects, even in a state of rebellion against him, thus to live. — 3 Phill. Int. Law, pp. 718, 719; Lawrence’s Wheat. on Int. Law, 536; Foster's Crown Cases, 188; Gro. on War and Peace, book 1, ch. 4, § 15; Halleck on International Law, 792.