Shortridge v. Macon.

States, putting great armies in the field, menacing with imminent peril the very life of the republic, and demanding immense efforts and immense expenditure of treasure and blood for their defeat and suppression, swell beyond the boundaries of the definition, and become innocent in the proportion of their enormity ?

But it is said that this is the doctrine of the supreme court. We think otherwise.

In modern times it is the usual practice of civilized governments, attacked by organized and formidable rebellion, to exercise and concede belligerent rights. Instead of punishing rebels, when made prisoners in war, as criminals, they agree on cartels for exchange, and make other mutually beneficial arrangements; and instead of insisting upon offensive terms and designations in intercourse with the civil or military chiefs, treat them, as far as possible without surrender of essential principles, like foreign foes engaged in regular warfare.

But these concessions are made by the legislative and executive departments of government in the exercise of political discretion, and in the interest of humanity, to mitigate vindictive passions inflamed by civil conflicts, and prevent the frightful evils of mutual reprisals and retaliations. They establish no rights, except during the war.

It is true that when war ceases, and the authority of the regular government is fully re-established, the penalties of violated law are seldom inflicted upon the

many.

Wise governments never forget that the criminality of individuals is not always or often equal to that of the acts committed by the organization with which they are connected. Many are carried into rebellion by sincere though mistaken convictions, or hurried along by excitements due to social and State sympathies, and even by the compulsion of a public opinion not their own.

Shortridge v. Macon.

When the strife of arms is over, such governments, therefore, exercising still their political discretion, address themselves mainly to the work of conciliation and restoration, and exert the prerogative of mercy rather than that of justice. Complete remission is usually extended to large classes by amnesty, or other exercise of legislative or executive authority; and individuals not included in these classes, excepting sometimes a few of the greatest offenders, are absolved by pardon, either absolutely or upon conditions prescribed by the government.

These principles, common to all civilized nations, are those which regulated the action of the government of the United States during the war of the rebellion, and have regulated its action since rebellion laid down its arms.

In some respects the forbearance and liberality of the nation have exceeded all example. While hostilities were yet flagrant, one act of Congress practically abolished the death penalty for treason subsequently committed, and another provided a mode in which citizens of rebel States maintaining a loyal adhesion to the Union could recover, after the war, the value of their captured or abandoned property.

The national government has steadily sought to facilitate restoration with adequate guarantees of union, order, and equal rights.

On no occasion, however, and by no act have the United States ever renounced their constitutional jurisdiction over the whole territory, or over all the citizens of the republic, or conceded to citizens in arms against their country the character of alien enemies, or to their pretended government the character, generally, of a de facto government.

In the prize cases the supreme court simply asserted the right of the United States to treat the insurgents as belligerents, and to claim from foreign nations the per

Shortridge v. Macon.

formance of neutral duties under the penalties known to international law. The decision recognized, also, the fact of the exercise and concession of belligerent rights, and affirmed, as a necessary consequence, the proposition that during the war all the inhabitants of the country controlled by the rebellion and all the inhabitants of the country loyal to the Union were enemies reciprocally each of the other. But there is nothing in that opinion which gives countenance to the doctrine which counsel endeavor to deduce from it: that the insurgent States, by the act of rebellion and by levying war against the nation, became foreign States, and their inhabitants alien enemies.

This proposition being denied, it must result that in compelling debtors to pay to receivers, for the support of the rebellion, debts due to any citizen of the United States, the insurgent authorities committed illegal violence, by which no obligation of debtors to creditors could be cancelled, or, in any respect, affected.

Nor can the defense in this case derive more support from the decisions affirming the validity of confiscations during the war for American independence.

That war began, doubtless, like the recent civil war, in rebellion. Had it terminated unsuccessfully, and had English tribunals subsequently affirmed the validity of colonial confiscation and sequestration of British property, and of debts due to British subjects, those decisions would be in point. No student of international law or of history needs to be informed how impossible it is that such decisions could have been made.

Had the recent rebellion proved successful, and had the validity of the confiscations and sequestrations actually enforced by the insurgent authorities been afterwards questioned in Confederate courts, it is not improbable that the decisions of the State courts made during and after the revolutionary war might have been cited with approval.

Shortridge v. Macon.

But it hardly needs remark that those decisions were made under widely different circumstances from those which now exist.

They were made by the courts of States which had succeeded in their attempt to sever their colonial connection with Great Britain, and sanctioned acts which depended for their validity wholly upon that success, and can have no application to acts of a rebel government seeking the severance of constitutional relations of States to the Union, but defeated in the attempt, and itself broken up and destroyed.

Those who engage in rebellion must expect the consequences. If they succeed, rebellion becomes revolution, and the new government will justify its founders. If they fail, all their acts hostile to the rightful government are violations of law, and originate no rights which can be recognized by the courts of the nation whose authority and existence have been alike assailed.

We hold, therefore, that compulsory payment under the sequestration acts to the rebel receiver, of the debt due to the plaintiffs from the defendant, was no discharge.

It is claimed, however, that whatever may be the right of the plaintiffs to recover the principal debt from the defendant, they cannot recover interest for the time during which war prevented all communication between the States in which they respectively resided.

We cannot think so. Interest is the lawful fruit of principal. There are, indeed, some authorities to the point that the interest which accrued during war between independent nations cannot be afterwards recovered, though the debt, with other interest, may be. But this rule, in our judgment, is applicable only to such wars. Nor do we perceive any thing in the act of July 13, 1861, which suspended for a time all intercourse between the loyal and insurgent portions of the country, that warrants its application to the case

United States v. Walsh.

before us.* Legal rights could neither be originated nor defeated by the action of the central authorities of the late rebellion.

The plaintiff must have judgment for the principal and interest of his debt without deduction.

UNITED STATES v. WALSH.

District Court; District of Oregon, July T., 1867. ARREST.-STATE LAWS ON IMPRISONMENT.

A statute providing in general terms that an order of arrest may be issued whenever certain facts appear by affidavit is satisfied if the requisite facts appear by a fully verified complaint, and this complaint is laid before the court on applying for the order of arrest. The extent to which State laws abolishing or restricting imprisonment for debt, are adopted for the guidance of the United States courts, explained.

It seems, that a State law forbidding "imprisonment for debt, except in cases of fraud," should be construed as meaning to prohibit imprisonment for debt arising upon contract, except in cases of fraud; and should not be deemed to extend to imprisonment upon a judgment for a statute penalty. The obligation of one who has manufactured or sold goods in violation of a revenue law requiring him to pay a duty thereon, to pay a penalty imposed by the law for such violation, is a case of fraud, and within the exception in a State law prohibiting imprisonment for debt, except in cases of fraud. This penalty is incurred by acts which constitute a fraud upon the United States.

Motion to vacate an order of arrest.

* In the case of Bigler v. Waller, decided at the May term, 1870, of the circuit court of the United States for the district of Virginia, the CHIEF JUSTICE held that, under the special circumstances of that case, interest was suspended during the civil war; and intimated a doubt as to the correctness of the above ruling.