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occasional temporary one as does not suspend the course of business of the two houses, the interval, until the next meeting, should, I think, be deemed a recess. If So, there was here a recess on the adjournment of 27th July last.
“On the third question, I incline to think that if the words 'unless it be then otherwise ordered by the two houses,' had not been contained in the resolution of 220 July, the meeting of the Senate on 21st September would have been such a session that the commission of Mr. O'Neill, if otherwise valid, would have expired upon the adjournment on the same day. The insertion of the words which I quote might not have prevented such a result, if any thing had been done by the two houses to make the transaction of executive business by the President and Senate possible, if the President and Senate had desired it. But the adjournment excluded all business, and nothing had been done before it to permit the transaction of any business. The Senate could not, however long they might have sat, receive a nomination to office from the President; and consequently there was, I incline to think, no such session that a temporary appointment, if otherwise valid, would have been terminated by the adjournment which occurred. I would have avoided intimating an opinion upon this point, if it had not seemed necessary in order to explain my reason for expressing one upon the first question."
The greater part of the opinion is devoted to an elaborate discussion of the point raised by the first question. Judge Cadwalader first expresses the opinion that, if the question be an open one, the power claimed for the President could be supported neither on the clause of the Constitution which gives him power to fill up all vacancies that may happen, during the recess of the Senate, by granting commissions which shall expire at the end of their next session;. nor on that other clause which requires him to take care that the laws be faithfully executed. But the main argument for Mr. O'Neill was, that the question of the rightfulness of the exercise of the power claimed by the President was not an open one; that the existence of the power had been settled by an administrative usage of forty-five years. This argument the learned judge considers and combats at great length, and concludes thus :
“ There has not been opportunity for judicial contestation. The existence of the power in question has not been legislatively recognized, has been denied by the Senate, has been practically asserted by Presidents only, and has not been exercised without constantly recurring suggestions by them of doubts of its existence under the Constitution. Opinions of attorney generals have been its only support; and in these opinions other jurists of eminence have not concurred.
“All this might have been said in language more decidedly showing that the question, whenever directly litigated, will be quite open for judicial contestation. At present I cannot answer it affirmatively."
The whole opinion may be found at 25 Legal Intelligencer, p. 348, in the number for Oct. 30, 1868.
VIRGINIA. UNITED STATES Circuit COURT. — Keppell's Administrator v. Petersburg Railroad Co. This case establishes the right of a citizen of Pennsylvania to dividends declared during the war on the stock held by him in the defendant company, notwithstanding the stock and dividends had been confiscated by the Confederate Government. The opinion of the court was as follows:
CHASE, C.J. This is a suit by the administrators of a stockholder of the Petersburg Railroad Company, who was a citizen of Pennsylvania, and resided in the city of Philadelphia during the late Rebellion, to compel that corporation, created by the statutes of Virginia and North Carolina, and having its principal office for business at Petersburg, to account for dividends declared by the company during 1861, and subsequently, before the filing of the bill on the 22d of November, 1866.
According to the statement of the answer, admitted to be true by written stipulation of counsel, Catharine C. Keppell, before the Rebellion, was the owner of two hundred and three shares of the company's stock, and subsequently, by further issues of stock, became entitled to one hundred and one additional shares, making a total of three hundred and four shares.
After the secession of Virginia, and organization of the Southern Confederacy, the company submitted, without opposition, to the control of the Confederate Government set up over North Carolina and that part of Virginia in which the road lay, in hostile exclusion of the constitutional authority of the United States.
Subsequently, on the 30th of August, 1861, the Confederate Congress passed an act for the sequestration or confiscation of all property found within the rebel States belonging to loyal citizens of the other States of the Union.
Under this act, such proceedings were had by a district judge holding a court under the pretended authority of the Confederate Government, and by a receiver appointed by him, that ninety shares of Mrs. Keppell's stock were sold to sundry purchasers, and dividends were paid on the whole number of shares, partly to these purchasers and partly to the receiver.
These dividends amounted to one hundred and nine per cent, and were paid at different times from July, 1861, to November, 1864, inclusive.
After the overthrow of the Confederacy, the sales made by the receiver were treated as nullities by the railroad company. Scrip for the one hundred and one additional shares was sent to the complainants, as administrators, and if dividends had been subsequently declared, payment would have been made to them on the whole three hundred and four shares.
It appears from this statement that the company itself regarded the Confiscation Act as null, and of no force, so far as the sale of the ninety shares was concerned. That sale was treated as a nullity and the title of the purchasers under it as worthless.
But the company claims, 1st, That payments of dividends, made under the same act, to the receiver and the purchasers, must be upheld as valid payments; and, 2d, If this claim be disallowed, then that the liability of the company was only to pay, on demand, the dividends of Mrs. Keppell, in such currency as was necessarily received, and no demand having been made, except by the commencement of this suit after that currency had become wholly worthless, no decree can now be made against the company.
The first of these propositions rests upon the premises that the Confederate organization was a government de facto, and that acts in obedience to its authority must be presumed to have been done under the compulsion of superior force, by reason of which the actors are discharged from all ulterior responsibility.
Of this it may be observed, in the first place, that the term de facto, as descriptive of a government, has no fixed and definite sense.
It is, perhaps, most correctly used as signifying a government completely, though only temporarily, established in place of the lawful or regular government, occupying its capital and exercising its power.
Examples of this kind of de facto governments are found in English history; some in the violent seizure and temporary possession of royal power, and one, so conspicuous that the world can never lose the sense of it, in the establishment of the Commonwealth and the Protectorate in place of the monarchy.
In this sense certainly, the rebel government was never a de facto government. It never held the national capital. It never asserted any authority to represent the nation. It was only what it professed to be, a revolutionary organization, seeking to establish a confederacy of States, disconnected from the United States, and dependent wholly for success upon the success of the revolution.
The term, however, is often used, and perhaps more frequently, in a sense less precise, as signifying any organized government established for the time over a considerable territory, in exclusion of the regular government. A de facto government of this sort is not distinguishable in principle from other unlawful combinations. It is distinguishable in fact mainly by power, and in territorial control, and by the policy usually adopted in relation to it by the National Government.
Treason in England is not committed against the lawful government by acts of hostility done in support of a de facto government, strictly so called. This is the rule established by the statute 11 Henry VII., passed with reference to the frequent changes in the royal authority during the civil wars of York and Lancaster. And the reason of the rule, doubtless, extended to acts done under the Parliament and the Protector, while in possession of the supreme authority in England; though the benefit of it was denied to many, and in a most conspicuous instance to Sir Henry Vane. And it may be well doubted whether in this country treason against the United States could be committed in obedience to a usurping President and Congress, exercising unconstitutional and unlawful power at the seat of the National Government.
But it cannot be maintained that acts against the king, committed in obedience to a usurper temporarily in possession of a part of the kingdom, would not be treason in England; or that levying war against the United States by persons, however combined and confederated (even though successful in establishing their actual authority in several States), would not be treason here.
What effect, then, is to be given to acts done under the authority of an insurgent body, actually organized as a government, and actually exercising the powers of a government, within a large extent of territory, not merely in hostility to the regular and lawful government, but in complete exclusion of it from the whole territory subject to the insurgent control?
It is not easy to give a general answer to this question. On the one hand, it is clear that none of its acts in hostility to the regular government can be recognized as lawful; on the other, it is equally clear that transactions between individuals, which would be legal and binding under ordinary circumstances, cannot be pronounced illegal and of no obligation because done in conformity with laws enacted or directions given by the usurping power.
Between these extremes of lawful and unlawful, there is a large variety of transactions to which it is difficult to apply strictly any general rule; but it may be safely said that transactions of the usurping authority, prejudicial to the interests of citizens of other States excluded by the insurrection and by the policy of the National Government from the care and oversight of their own interests within the States in rebellion, cannot be upheld in the courts of that government.
In the case before us, for example, Mrs. Keppell was the undoubted owner of three hundred and four shares of the stock of the Petersburg Railroad Company, and was clearly entitled to her just proportion of its earnings. But she was denounced as an alien enemy by the Confederate Government. She was excluded from all control of her stock, and all receipt of dividends. And more than this, the stock was sequestered, or rather confiscated, and partly sold, and the dividends paid to the
purchasers, and to a person called a receiver, appointed under the rebel authority. Can it be maintained that her right to the dividends upon her stock was defeated by these transactions? We think not. We cannot regard the Confederate Government as a de facto government in any such sense that its acts are entitled to judicial recognition as valid. On the contrary, we are obliged to regard it as a combination or unlawful confederacy organized for the overthrow of the National Government, and its acts, for the confiscation or sequestration of the private property of the citizens of the United States, as null and of no effect. The appointment of the receiver, the sale of the stock, the payment of the dividends, must all be regarded as part of the process of sequestration or confiscation, and all as equally void.
But it is said, admitting the character of the Confederate Government, in view of the law, to be such as has been stated, that the company was compelled to pay the dividends to the parties who received them, and, by this compulsory payment, was discharged of responsibility to the lawful proprietor of the stock.
This proposition asserts the exemption of the company from liability on the principle of vis major; that there can be no responsibility where the loss is occasioned by irresistible force. And it may be admitted that if the dividends belonging to Mrs. Keppell had been set apart to her specially, and the money thus set apart had been taken from the officers of the company without consent on their part, by the application of force, either actual or menaced, under circumstances amounting to duress, the loss must have been borne by her. After such an appropriation of dividends, the company would have become, perhaps, the bailee of the stockholder for her proportion, and an excuse which would avail a carrier for hire for non-delivery, might excuse the company for non-payment.
But we cannot agree that this rule is fairly applicable to this case. It does not appear that there was any setting apart of dividends, or that any force was actually used or threatened. On the contrary, the action of the company in employing their railroad in the service of the Confederate Government, and the absence of any protest on the part of any of its officers against the unlawful payment of the dividends, afford a reasonable inference that they were not involuntary accessories to the whole action of that government. No reasonable application of the principle relied upon, therefore, will excuse the company from its liability to its stockholders. And public policy clearly requires the protection of stockholders in the loyal States from any application of this principle not clearly demanded by the law. Mrs. Keppell was deprived of the immediate security, afforded to her rights by the National Government, by the Rebellion. It is the duty of that government, since that Rebellion is suppressed, to afford her, as far as practicable, ultimate security. On the other hand, it is the obvious dictate of sound policy that no encouragement should be given to rebellion by relieving parties within rebel control of private responsibilities, except in very clear cases of compulsory force, without their direct or indirect consent.
We think the second claim of the company as to payment in Confederate notes equally untenable. The liability of the company to Mrs. Keppell for each dividend accrued when it was declared. At that moment the company became debtor, and the stockholder creditor for the amount. It may have been the fault of neither, that payment was not then made. It was not, certainly, the fault of the stockholder. It is no excuse to the company that the particular currency in which its income was received, and in which its dividends were paid to the stockholders, has since become worthless. The dividends were declared in dollars. The debt created by the divi. dend to the stockholder was due in dollars ; and in dollars only can it now be discharged
But we are not more ready to say that it must now be discharged by dollars of greater value than those in which it was received, than to say that it may be discharged by dollars of no value at all.
At the time several of the dividends were declared, the chief currency, and, when the others were declared, almost the entire currency, of that part of the country in which the railroad was operated, was in Confederate notes; and whatever currency of bank notes there may have been in circulation, was of no greater real value. This currency may fairly be said to have been imposed on the country by irresistible force. There was no other in which the current daily transactions of business could be carried on, and there could be no other while the rebel government kept control of the rebel States. The necessity for using this currency was almost the same as the necessity to live. No protest, no resistance, no rejection, could avail any thing. At the same time, this currency, though it depreciated rapidly, had a sort of value. Its redemption, though improbable, was not impossible, and, until the downfall of the Confederacy, it had a greater or less degree of purchasing power.
Under these circumstances, we cannot refuse to take notice of the fact that the dollars which the company received were not of either description of dollars recognized as lawful money by the laws of the United States; nor can we hold the officers of the company as incurring any liability to the stockholders by receiving the currency actually in circulation for its earnings, beyond that of prompt payment in like currency to such stockholders as were in a situation to receive such payment, and payment as soon as practicable in currency of equivalent value to such as were resident in States, intercourse with which was, at the time, not only cut off by the Civil War, but was also interdicted by the Congress of the United States.
In the case of Shortridge v. Mason, 2 Am. Law Rev. 95, it was held that the accrual of interest upon a note for a certain sum and interest was not suspended by the Rebellion. The dividends, in the present case, are in a different predicament. Dividends are only payable on demand, and it is agreed in this case that there was no demand until the filing of the bill. Interest, therefore, can only be allowed from that date.
We shall decree, therefore, that the respondents pay to the complainants the dividends declared upon the stock of their intestate with interest from Nov. 23, 1866. The amount of the several dividends at the several dates when made, will be computed by deducting such percentage as will reduce them to equal value in lawful money, and interest on the aggregate amount will be cast from Nov. 23, 1866, to this date at six per cent. 'And decree will be entered for the sum thus ascertained. The computations may be made by the counsel, or by a master, as they may prefer.
GREAT BRITAIN. New APPOINTMENTS. — At the time of going to press, it is impossible to give with any certainty the legal appointments of Mr. Gladstone's Government. The utterances of the capricious submarine monster are even more than usually unintelligible and absurd. To extract a meaning from them, they require as many and ingenious emendations as the chorus of a Greek tragedy. We venture, though with great diffidence, to suggest that perhaps the statement, that “ Henry Woods is to be Chancellor of the Exchequer, and Sergeant Gifford, Lord Chief Justice," may mean that Sir William Page Wood is to be Lord Chancellor, and that the place of Lord Justice of Appeal in Chancery, which will be, in that case, vacated by him, is to be filled by the promotion of Vice Chancellor Giffard.
THE QUEEN V. ANDERSON. — Case stated by Byles, J.