The decree was as follows: who was not a party to the suit, changing the bill against Irick and Effinger, must that investment, is binding upon the widow be reversed. and heirs, unless made by their consent, or upon notice to them. Upon one hypothesis it was to set aside a decree of the court; upon the other, it was to rescind an agreement-neither of which could be done on motion without notice. The court is of opinion, for reasons stated in writing and filed with the record, that the order of court of October 1862, author izing A. B. Irick to pay to the receiver of the court the fund in his hands, which had been set apart for the widow of Abra The court is, therefore, of opinion that the order of the court authorizing the debtor, on his motion, to change the invest- 626 ham Beery during her life, *upon or's lien. which she was to receive the interest ment of the widow's fund and to pay it to the receiver of the court, being made without the consent of the widow and heirs, or annually, in lieu of dower, was not binding notice to them, is not binding on them and on the widow and heirs, but was null and cannot discharge the appellee from his ob- void as to them; and that the payment ligations, or release the land from the vend-made by the said Irick to the receiver of the court, under said order, does not discharge his obligation to the widow and heirs, or release the land from the vendor's lien; and that the appellants are entitled to a decree against the said Irick for the principal of said bonds which had been set apart for the widow, to be safely invested by the court during the lifetime of the widow: and that she is also entitled to a decree against him for the interest which is in arrear and unpaid upon said bonds, subjecting the land to the payment of both principal and interest with a proviso, that if the said Irick shall pay up the interest due and in arrear to the widow in a reasonable time, to be designated by the Circuit court, and shall pay the balance which the said court may ascertain to be due on the bonds, which were set apart for the heirs, and shall execute his bond for the principal sum which was set apart as a fund for the lifetime of the widow, and punctually pay the interest accruing thereon annually, to the widow during her life, then and in that case the execution of said decree requiring the payment of the principal sum aforesaid set apart for the widow, shall be suspended during her life and for six months after her death, but shall be a charge upon the whole land, for which the said debt, as a part of the purchase money, was originally contracted by the said Irick." The court is further of opinion that the payment made by the appellee to the receiver, being under an order of court which is null and void as to the widow and heirs, the relation of the debtor to them is as if such payment had not been made; and their right of action to have and demand the same of their debtor is direct and immediate, and no question as to the liability of the receiver can be interposed to impede its assertion. The liability of the receiver, or the extent of his liability, are questions between him and A. B. Irick; and do not concern the appellants. But whilst this is so, the receiver, having been made a party to this suit, if he is liable to Irick, 625 *the latter might have had a decree over against him, if he had asked it. But the court below has not passed upon the question of the receiver's liability to Irick, and has not been asked to do so. It would seem to be most proper, therefore, that this court, which has only appellate jurisdiction-though in a proper case it might do so should not undertake, primarily in the state of the pleadings in this case, to decide upon their reciprocal rights and liabilities; but the parties should be allowed, when the cause goes back to the lower court, to litigate those matters, if they think proper, before that court, that the respective rights and liabilities of the said parties as to each other may be settled and determined in this suit. The court is of opinion that so much of the decree of the Circuit court, of November 23, 1867, as dismissed the plaintiffs' bill, so far as it seeks to charge A. B. Irick and M. H. Effinger with liability for the sum of $4,269.89, paid by the said Irick under the decree of October 1862, to the receiver and invested by him in Confederate States bonds, is erroneous, and that the Circuit court did not err in granting the plaintiffs leave to file their bill of review. And the court is further of opinion, for reasons already stated, that the decree of the 25th of November 1870, is erroneous in re-affirming the decree of November 23d, 1867, and in dismissing the bill of review; and that the same, as also the decree of the 23d of November 1867, so far as it dismisses It is, therefore, decreed and ordered by the court, that the decree of November 23, 1867, so far as it dismisses the plaintiffs' bill against Irick and Effinger, and the decree of November 25, 1870, re-affirming said decree and dismissing the plaintiffs' bill of review, be reversed and annulled; and that the appellee, Irick, pay to the appellants their costs expended in the prosecution of their appeal here. And the cause is remanded to the Circuit court of Augusta 627 county, to be proceeded with in conformity to the principles of this decree; in which proceedings the said Irick and Effinger, or either of them, if they, or he, desire it, may litigate the question of liability of the latter to the former, and the extent of such liability, if there be any, to be settled and determined by the said Circuit court, and to be decreed accordingly. Which is ordered to be certified to the said Circuit court of Augusta county. 628 *Newton's Ex'or v. Bushong & als. August Term, 1872, Staunton. [12 Am. Rep. 553.] Confiscation by Confederate Government-Executor.* -Money received by an executor during the war, belonging to a citizen of Indiana, was confiscated by the Confederate government. HELD: The Confederate government in the exercise of her belligerent rights, had authority to confiscate the property of alien enemies, and the executor is not responsible for the money confiscated. Michie not to require him to report their shares for confiscation. After which he deposited the amount he considered due the estate in the Central Bank of Virginia, where he kept it for some considerable time; when finding that Confederate money was depreciating very fast, he concluded to invest the fund in Confederate eight per cent. bonds; believing that to be safe and better than the money; and there it still remained. He was ready to pay it over at any time after the settlement, in the bonds or in the money, if the parties preferred it. The amount due. There was a small legacy due amount invested did not quite equal the This was a suit in equity in the Circuit court of Augusta county, brought in April 1866, by Samuel Bushong and others, legatees of Mary C. Bushong, against Johna grandson, a minor, which he kept out to Newton, as her executor, for an account of pay, but he never could get him to choose the estate of his testatrix, and the payment Confederate bonds were procured in March a guardian, and could not pay it. The of their legacies. Mary C. Bushong died in the year 1860, having made her will, which was duly admitted to probate, and John Newton qualified as her executor. He delivered to the legatees the specific articles bequeathed to them, sold the other personal estate on the 7th of September 1860, on a credit of nine months, and in November 1861, the commissioner reported his administration account to the court; showing the amount in his hands on the 1st of July 1861, to be $1,720.24. Mrs. Bushong by her will gave to her son Samuel, who lived in Indiana, one hundred dollars; to Peter V. Bushong, four hundred dollars; to her grandson Jacob Cox, who was a minor, and so continued during the war, fifty dollars; and the residue of her estate she gave to Peter V. and Mary A. Bushong. not return until the war was over. The money remained in his hands for a considerable time, until he was ordered by Thomas J. Michie, the receiver of the Confederate States government, to report the amount of the fund for confiscation. He reported that there was $100 due to Samuel Bushong; and that was confiscated. He then stated to the commissioner the circumstances under which Peter V. and Mary A. Bushong had left for Indiana, in the spring of 1861, on a visit to their brother and sisters, with the positive assurance that they would return in a short time; and this induced Mr. *Confederate Government.-The principal case is cited and strongly approved in several subsequent cases as anthority for the proposition that the Confederate government had all the attributes of a de facto, if not a de jure, government. See Dinwiddie Co. v. Stuart, etc., Co., 28 Gratt. 538; Pilson v. Bushong. 29 Gratt. 236; Bier & Mann v. Dozier, 24 Gratt. 10: Ruckman v. Lightner, 24 Gratt. 28; Miller v. Cook, 77 Va. 818. V R, 22 Gratt-15 1863. sioner; who reported, charging the executor with the whole fund in his hands, and crediting him with his payments made since the settlement of his account; and he reported that there was due of principal 630 to Peter V. Bushong, *$831.63; to The accounts were referred to a commis Samuel Bushong and Cox, their legacies. revived against his executor, Isaac Newton; H. W. Sheffey & Bumgardner, for the appellant. Fultz, for the appellee. in this case relates to the legacy of Samuel STAPLES, J. The important question Bushong, a resident of the state of Indiana. This legacy was, in March 1862, reported by the executor to a Confederate receiver, and was confiscated as the property of an alien enemy. According to the statement of the executor the fund had been in his hands since July 1861, part of the proceeds of the sale of personal estate belonging to the testatrix. There is no evidence of his assent to, or his participation in, the act of confiscation. On the contrary, it is to be inferred that he only made the report and payment because he was ordered so to do by the proper authorities. The question is now presented, whether the payment thus made protects the executor against the claim of the legatee. In order properly to discuss this question, the acts of confiscation or sequestration passed by the Confederate Congress must be briefly noticed. The first of these was passed 30th of August 1861, the second, amendatory thereof, the 15th February 1862. It is unnecessary to state in detail the various provisions of these acts. It will be seen by a reference thereto, it was made 225 631 In the duty of every person having in his In support of this view, an opinion of possession or under his control *the Chief Justice Chase, delivered at Richmond effects of an alien enemy speedily to in Keppell's administrator v. Petersburg inform the receiver in his district of the Railroad company, is relied on. It seems fact. A failure so to do was declared a that Mrs. Keppell was a stockholder in that high misdemeanor, punishable by fine and company, and that a part of her stock was imprisonment, and also a forfeiture of confiscated and sold during the war. double the amount, at the suit of the gov-a suit against the company by Mrs. Kepernment. It was also provided, that any pell's administrator, the company claimed person who, after giving such information, a credit for the dividends paid to the Conshould fail to pay over and deliver on de- federate receiver and to the purchasers of mand made by the receiver, the money or the stock sold. The learned Chief Justice effects in his hands, shall stand in con- conceded that if the dividends belonging tempt, and be proceeded against as in other to Mrs. Keppell had been set apart to her cases of contempt. And the court or judge specially, and the money thus set apart was authorized to imprison the offender had been taken from the officers of the until he should fully comply with the re- company without their consent, by the quirements of the act. application of force, either actual or menaced, under circumstances amounting to duress, the loss must have been borne by her. But nothing of the kind appeared. No dividends were set apart; there was no force actual or threatened. On the contrary, the conduct of the company afforded a reasonable inference that they were not invol untary accessories to the whole action of the government. The *facts of the case are not reported in the volume to which we have been referred. It is therefore somewhat difficult to understand what is meant by the expression "application of force actual or menaced, under circumstances amounting to duress." We are not told how far the person holding the effects of an alien enemy was required to go-what amount of resistance he was expected to display in defence of property belonging to a loyal citizen of the United States. Under the provisions of the original act, the court was empowered to leave the sequestered property or effects in the possession of the debtor or other person, requiring security for its safe-keeping, and payment or delivery whenever required by the court. The amended act, however, makes a very material change in this respect. That act creates a distinction between persons in 633 actual possession of, or having under their control, the effects of alien enemies, and persons owing debts to alien creditors. In the former case immediate payment or delivery was required to be made to the receiver without qualification or condition. In the latter case payment of interest was only exacted, and no execution could be issued during the war against the debtor who faithfully complied with the statute in giving information of his indebtedness. The reason of this distinction is apparent. A trustee, fiduciary or other person having A government of supreme authority property or money in his actual possession, denouncing the penalties of fine, imprisonor under his control, could not justly de- ment and forfeiture upon acts of disobedimand any delay or indulgence. There could ence to its proclaimed will, affords as strong be no valid reason why payment should an illustration of "menaced force" as can not at once be made to the receiver. A mere well be imagined. What does it matter that debtor, on the other hand, might be sub- such a government is unlawful. A citizen jected to considerable inconvenience in may be justified in resisting tyranny and making such payment, and as by the laws oppression, but he is under no obligation, of nearly all the states South, the collection nor can he be required to engage in a hopeof debts was stayed, the Confederate gov- less and dangerous contest with the governernment extended the same indulgencement under which he lives, however illegal 632 *to parties indebted to alien enemies. it may be, in defence of property confided In the present case the fund was to his care either as bailee, agent or executor. deposited in bank to the credit of the exec- In Thorington v. Smith, 8 Wall. U. S. R. utor, and was therefore under his control. 1, Chief Justice Chase declared that obeHe was within the express terms of the law, dience to the authority of the Confederate and the question is, was he bound to obey it. government in civil or local matters was It will be observed that these provisions not only a necessity but a duty. Why should were of a highly stringent character. That a different rule be established with respect the Confederate government had the power to this executor. Had he refused to pay to enforce them, no one familiar with the over the money, everyone familiar with the history of that period will question. It history of that period, and the temper of was a government of paramount force, to the public mind, knows well the whole whose laws and mandates every citizen power of the courts and the laws would within its jurisdiction was constrained to yield implicit obedience. Indeed this was conceded in the argument. It was said, however, that this government was an unlawful and treasonable organization, and no act done under its authority prejudicial to the rights of loyal citizens of the United States can be recognized as valid by the courts. have been exerted against him to enforce obedience. What was he to do under such circumstances? How far was he to go in his resistance to the law? Was he to submit to fine and imprisonment, or would the threat of an attachment for contempt have excused him in surrendering the fund? I think the executor was well justified in refusing to incur these hazards. He wisely declined a contest with a government | organization of all its parts, containing which the whole naval and military within its limits more than eleven millions 634 power of *the United States could not of people, and of sufficient resources in men subdue under four years. We are not and money to carry on a civil war of undisposed, however, to rest the decision of this exampled dimensions; and during all which case upon this narrow and restricted view. time the exercise of many belligerent rights It may be placed upon a higher ground. In were either conceded to it, or were acquiesced Walker v. Christian, 21 Gratt. pp. 291, 301, in by the supreme government; such as the Judge Moncure, speaking for the court, treatment of captives both on land and sea said, "It is immaterial to enquire whether as prisoners of war, the exchange of pristhe Confederate government was de jure or oners; their vessels captured, recognized as de facto only; and if de facto only for prizes of war, and dealt with accordingly; what purpose and to what extent it was a their property seized on land referred to de facto government. That it was such a the judicial tribunals for adjudication; their government to a considerable extent and ports blockaded, and the blockade mainfor many purposes, if not entirely and for tained by a suitable force, and duly notified all purposes, cannot be denied." It is said, to neutral powers, the same as in open and however, by an eminent Federal judge that public war. the Confederate government did not possess all the attributes of a government de facto in the highest degree. The reason, he assigns, is it never expelled the regular authorities from their customary seats and functions. It never held the national capital. It never asserted any authority to represent the nation. The conclusion he deduces therefore is, it must be regarded as an unlawful organization, and all its acts and proceedings for the confiscation of the property of loyal citizens must be treated as absolutely null and void. Again, elsewhere he declares, "We refer to the conduct of the war as a matter of fact for the purpose of showing that the so-called Confederate States were in the possession of many of the highest attributes of government, sufficiently so to be regarded as the ruling of supreme power of the country, and hence captures *under its commission were among those excepted out of the policy by the warranty of the insured." 636 All will acknowledge the force of this description, the accuracy and truth of the The test here suggested may be a correct picture. If the laws and mandates of a one, when applied to a people having but government thus organized and powerful, one central consolidated government. In will not protect those who were subject to such States or communities, as a general its jurisdiction and yielded it obedience, it thing, the object of every revolutionary is idle to say that the citizens or subjects movement is to overthrow and expel the of a mere de facto government in any case, existing government, to occupy the capital can claim exemption under its authority. and give laws to the nation. So long as the In Thorington v. Smith, Chief Justice organization falls short of this result, it Chase expresses the opinion, that the Conmay be a question whether it possesses the federate government may be classed among attributes of a de facto government in the the governments of which those established highest degree. However this may be, the at Castine and Tampico are examples. test suggested cannot in justice be applied Let us see then what was decided with refto the Confederate States. They did not erence to Castine. It was an American port attempt or desire to occupy the national captured by British forces in 1814, and held capital as their seat of government, nor to in possession of British authorities until give laws to the people of the United States. the treaty of peace in 1815. During that The whole scope and object of the move-period foreign goods were received into the ment was a separation from the North- | port, under regulations established by the ern States: the formation of an enemy. Some of these goods remained in 635 *independent confederation; the es- Castine until after the close of the war. tablishment of a new government over The United States government then asserted their own people within their own territorial a right to levy imports and duties upon limits and jurisdiction. How eminently them. The supreme court of the United successful this struggle was for four years, States decided this claim could not be susat least, in the attainment of these objects, tained; that by the conquest and military let the Supreme court of the United States occupation of Castine, the enemy acquired answer. In Mauran v. Insurance Company, that firm possession which enabled him to 6 Wall. U. S. R. 1, the question was pre- exercise the fullest rights of sovereignty. sented, whether a Northern insurance com- By the surrender the inhabitants passed pany was liable for the value of a vessel under a temporary allegiance to the British captured by the naval forces of the Con- government; and were bound by such laws, federate government. Mr. Justice Nelson, and such only, as it chose to recognize and in discussing the principles governing the enforce. Now, if the learned Chief Justice rights and liabilities of underwriters in be correct in likening the Confederate govsuch cases, used the following language: ernment to the military occupation of "Still it cannot be denied but that by the Castine, it would seem that the same results use of these unlawful and unconstitutional must follow in both cases. The law of means a government in fact was erected, paramount force, which protected the citizen greater in territory than many of the old against the claim of the United States, governments of Europe, complete in the would also protect the bailee or fidu 637 ciary, who had surrendered the *fund around the citizen, by declaring that no in his hands to the supreme authority one shall be deprived of life, liberty or of the country. In such cases it does not property, except by due process of law. matter that such authority is denounced as When, however, civil war exists, and the unlawful and treasonable. The same thing government asserts the rights of a belligmay be said of every mere de facto govern-erent, such as appertain to a state of war ment. It is unlawful, because it is simply between independent nations; treating all de facto. The right to confiscate the prop- the inhabitants of the opposing section as erty of enemies during war does not depend upon the lawfulness of the government which enforces it. It is derived from a state of war, and is called the right of war. Accordingly, when things in action are confiscated, peace being made those which are paid are deemed to have perished; but those not paid revive and are restored to their true creditors. Ware v. Hylton, 3 Dall. R. 227; Vattel Book 3, chap. 8, 138, and chap. 9, 161. public enemies; blockading their ports against neutral powers; seizing and confiscating their property without trial and without conviction; it must be content to accept all the results which flow from the position thus assumed. In the prize cases, it is admitted by Mr. Justice Grier, that the parties in a civil war usually concede to each other belligerent rights. In the same cases, Mr. Justice Nelson delivering a dissenting opinion, in which Judges Taney, Catron and Clifford concurred, said: "In the case of a rebellion or resistance of the people of a country against the established government, there is no doubt, if in its progress and enlargement, the government thus sought to be overthrown sees fit, it may by the competent power recognize or declare the existence of a state of civil war, which will *draw after it all the consequences and rights of war between the contending parties, as in the case of a public war. And in defining the legal consequences resulting from a public war, he declares, "All the property of the people of the two countries on land or sea are subject to capture and confiscation by the adverse party as enemy's property; with certain 639 In Wheaton the same doctrine is thus announced: "But the general usage of nations requires such a war (civil) as entitling both the contending parties to all the rights of war as against each other, and even as respects neutral nations. Wheaton Int. Law, page 296; The Tropic Wind, Law R., July 1861; Hughes v. Letsey et al., 5 Law R. 148; Price v. Poynter, 1 Bush. Ken. R. 387; Coolidge v. Guthrie, U. S. Circuit court for Southern district of Ohio, vol. 8 Am. Law Reg. 22. In the prize cases, 2 Black. U. S. R. 636, the doctrine that the parties to a civil war are in the same predicament as two nations who engage in a contest, and have recourse to arms, was fully recognized and sustained. It was also there held, that the civil war between the United States and the Confederate States, attained such character and magnitude as to give to the United States the same rights and powers which they might exercise in the case of a national or foreign war. Among these was the right to blockade Southern ports against neutral nations; the right to treat as public enemies all persons residing within the territory controlled by Confederate authorities, and to seize and confiscate their property. These were declared to be belligerent rights resulting from a state of war-applicable qualifications as respects property in land. alike to civil and to foreign wars. It was upon this principle the United States authorities seized and confiscated the cotton of Mrs. Alexander, a widow lady residing in the State of Arkansas, who did not even sympathize with the people of the South in the struggle for independence. The Supreme court of the United States sustained the act, declaring that the personal dispositions of individuals inhabiting enemy's territory, cannot in questions 638 of capture, *be the subject of enquiry. 2 Wall. U. S. R. 405. It has been urged here and elsewhere that According to the laws of nations, the the government of the United States might justice of the cause being reputed equal at the same time exercise both belligerent between two enemies, whatever is per- rights and sovereign rights: belligerent mitted to one in virtue of a state of war, is with regard to the opposing section, and also permitted to the other. Vattel, 382. sovereign in punishing individuals engaged It does not matter how the struggle in resisting its authority. It might be terminated-who the victor and who the demonstrated, I think, that inasmuch as vanquished. The question is not one of the war was carried on by sovereign states, right, but of power, appertaining to a state associated in a common confederacy, exerof war-power flagrante bello. The gov-cising the highest attribute of government, ernment of the United States may exercise that no citizen taking up arms under the both sovereign and belligerent powers. authority of that government, and yielding In its sovereign capacity it may punish obedience to its laws and mandates, can treason by seizing and confiscating the be held amenable to the penalties of property of the guilty party. This, how- treason. It is, however, unnecessary for ever, can only be done by the convic- the purposes of this case to establish that tion of the offender according to the proposition. Let it be conceded that the forms and requirements of the consti- government having reduced the people of tution and laws. His guilt must be the South to submission has the right to made to appear judicially. The constitu- treat them as rebels and traitors. The tion throws the shield of its protection | same may be said of every established gov |