Hawkins v. Filkins

by the Arkansas Supreme Court

Supreme Court of Arkansas

4 Ark. 286

Hawkins  v.  Filkins

Error to Pulaski Circuit Court.

Syllabus

The thirteen colonies, although dependencies of the British government, were entirely independent of each other; and separately and severally constituted the government of the United States; and it may be safely assumed that the people of the several states, in whom the sovereign power rests, had conferred upon their state governments sovereign and independent powers as such, limited only by the extent to whieh power was afterwards conferred by the constitution upon the federal government, or limited by it to the states,

But whether the constitution was made and adopted by the states, or by the people of the states, as a political question, is of no importance for any purpose of judicial investigation.

There can be no question but that the federal government derived its entire power and authority from the constitution; and is limited in the exercise of its powers to the specific grants of power therein contained, and to such implied powers as are necessary to give effect to the expressly delegated powers.

The powers granted to the federal government were for national purposes only: and the constitution and the laws made in pursuance thereof are the supreme law: and as the expressly delegated powers did not embrace any of the local municipal powers of the state government, they necessarily belong exclusively to the states and to the people; in respect to which the states are independent and sovereign; and to that extent the allegiance of the people is due to their state government.

The convention of this state, which framed the constitution of 1861, was called according to the provisions of the then existing constitution; and no acts of that convention can be void except such as were contrary to the allegiance of the people to the federal government; viz. that which attempted to dissolve the connection of the state with the federal government, and those that were auxiliary to that purpose.

Admitting that the state had no power to withdraw from the compact she had entered into with the United States, and that the act by which she attempted to do this was void; that void act could not affect the validity of the constitution and government of the state in other respects: nor was it intended by that convention to destroy the state government, whose existence as such did not depend upon its connection with the United States.

The position of Arkansas in the national government was equal to that of any other state, her rights and responsibilities the same; and her people owed allegiance to the United States to the extent of the powers delegated for national purposes; but the moment the laws which protected the citizen, were suspended by force of the civil war, that allegiance ceased.

If the state of Arkansas was conquered territory, the laws and government in force at the time of the conquest, remained in force until altered by the conqueror.

If the government of Arkansas was entirely revolutionized, and all of its departments usurped by force, without law or protection, and consequently owing no allegiance to any power, the people of the state as of necessity had a right to establish de facto a government for themselves.

The late war between the United States government and that attempted to be established as the Confederate States was a civil war, and the rights of belligerents apply and govern the conduct and rights of both parties; but the rules of conquest over foreign territory do not apply to their full extent; nor were the civil governments of the states overturned by the result.

The only principle settled by the late civil war, is, that no state has the power to dissolve its connection with the federal government—the powers of the two governments, state and federal, remaining the same—the rights of the people the same.

The state courts derive no power or authority to adjudicate from the United States, but from the constitution and laws of the state government, whose power as to its municipal affairs is independent of any other government.

The state of Arkansas did not, either by the passage of the ordinance of secession, by which she unsuccessfully attempted to dissolve her connection with the United States government, or by any subsequent act of hers, suspend or destroy the existence of her state government.

The government of the state continued to exist de jure, from the time she attempted to secede, until suspended by the action of the convention of 1864; and the acts of the state government during that period, were valid and binding as though no attempt had been made to secede.

No state convention has the power to declare the existing constitution and government void ab initio, and thereby render invalid the executive, legislative and judicial acts

The rule of construction, applicable as well to constitutions as acts of the legislature, is, that such construction, if possible, shall be given, that no clause, sentence or word shall be void, superfluous or insignificent; but if, from a view of the whole act, the intention is different from the literal import of its terms, then the intention shall prevail: construing the ordinance of the convention of 1864, by this rule, it is apparent that tbe intention was to make void the acts of the convention of 1861, only so for as some were in conflict with the constitution and laws of the United States.

Error to Pulaski Circuit Court.

Hon. LIBERTY BARTLETT, Circuit Judge.

Argument for plaintiff in error

ROSE, GALLAGHER & NEWTON, and GARLAND & NASH, for plaintiff.

We respectfully submit that the proposition, that the judgment upon which the execution was issued was rendered by a court whose acts were made void by the preamble to the present constitution of the State of Arkansas, is contrary to law.

The preamble to the constitution does not, ex vi termini, admit of such a construction; nor can the same be given to it by any fair intendment. See preamble to present constitution of Arkansas, page 5 of pamph. Acts, 1864.

The constitution is not to receive a strict construction. "The constitution should receive a fair and liberal construction." State vs. Ashley, 1 Ark., 513; State vs. Scott, 4 Eng., 270.

But there is a part of this clause which must be strictly construed. So far as it would take away vested rights, it is retroactive; and retroactive construction is not favored, and retrospective clauses must be strictly construed. Baldwin vs. Cross, 5 Ark., 510; Crittenden vs. Johnson, 14 id., 464; Couch vs. McKee, 1 Eng., 424.

So far as it deprived individuals of their rights as a "legitimate consequence of the rebellion," this clause must be considered as penal. "Penal acts are to be strictly construed." Hughes vs. State, 1 Eng. 131. Penal laws cannot be so construed as to embrace doubtful cases, and unless it were the clear intention to take away vested rights, then the clause must be held to be inoperative in that respect.

But, above all, let us apply the following rule: "A statute is to be construed, if possible, so that no clause, sentence or word shall be void, superfluous, or insignificant." Wilson vs. Biscoe, 6 Eng. 44; Kelly vs. McGuire, 15 Ark. 555. If the construction contended for by the appellee is to hold good, then the general saving of individual rights may as well be stricken out, since only the rights afterwards specially named are reserved.

For the "RIGHTS OF INDIVIDUALS" therein mentioned, should receive the most liberal construction, for the rule of law is; in the construction of statutes, in all things "favorable" the utmost latitude is to be given to the words, whilst in all things "odious" the words are to be restricted to their narrowest sense. Smith's Commentaries, page 649, secs. 496, 497, 498.

As to what is meant by "rights of individuals," we will simply refer to 1st Black. Com., p. 93; 1st Stephen's Black. Com., pages 128 and 153.

But if the convention did intend to effect the purpose, that it is contended the words used in the preamble import, the same is nugatory and without force for want of authority in the convention to effect the same.

We should bear in mind that this is a question between citizens of the state of Arkansas, simply, and in which no other power, state or individuals have any interest or concern; and that the proposition necessarily results, and which is the law of nations, that as to private rights and quoad its own citizens, when, by revolution or otherwise, a new government is for the time established, it does not need the recognition of other nations to validate it, but quoad its own citizens and internal affairs, it is not only a government de facto but de jure, for it exists, no matter what finally becomes of the government so temporarily established. Wheaton's Int. Law 56, (3d Ed.) and 310; Ib. Lawrence's Wheat., 36, 37 and note 15; McIlvaine vs. Cox's Lessees, 4 Cranch, 212; 1 Burrill's Dic., Word "de facto."

Thus the legislature of the state of Arkansas, at the session of 1860 and '61, (see Acts of 1860, p. 214,) pursuant to the provisions of the constitution of the United States and the constitution of the state of Arkansas, called the convention of the people, which afterwards, on the 6th day of May, 1861, attempted to separate the state of Arkansas from the United States; this convention was duly elected by the people of the state of Arkansas, every county being represented, and organized the government, which, without any sensible or material opposition, governed the state of Arkansas until September, 1863, the capital of the state was occupied by the United States forces; and the present state gevernment was adopted and organized, pursuant to the suggestions of the late president LINCOLN, and put in force on the 18th day of April, A. D. 1864.

Thns it will be seen, that Arkansas, as far as she is concerned, never was conquered by the people of Arkansas, but by the United States, and therefore, the questions of what rights of person and property her citizens retained, as citizens of a conquered country, is not properly in issue; but even admitting, for the sake of argument, that Arkansas is a conquered country, then what is the status of her citizens, and what are their rights of person and property as citizens of a conquered country, under the "law of nations."

"When one country conquers or succeeds to another, all private contracts, &c., are left as they are found, as well as their laws, customs and usages, not inconsistent with the paramount right of the conquering power; this is to protect society itself." Vide 2 Burlamaqui, p. 2, 14—clauses 14 and 15; Crabb's History of English Law, 452; Tucker's Black. Com., chapter 1, page 107; 1 Sharshwood Black., 204; Ware vs. Hilton, 3 Dallas, 199; [1 Con. Rep., 127] 1 Bishop's Cr. Law, sec. 7, et seq. and notes.

Particularly, United States vs. Powers, 11 How., 570; McMullen vs. Hodge, 5 Texas, 44; Cass vs. Dillon, 2 Ohio, 607; Commonwealth vs. Chopman, 13 Metcalf, 68-71; State vs. Raywood, 2 Stewart, 360; and Bishop on Marriage and Divorce, secs. 19 et seq., and authorities cited; Cross vs. Harrison, 16 How., 181; Spence's Equitable Jurisprudence of the Court of Chancery, vol. 1, p. 2, 3, 10, 105.

And in this construction of the law, the past history of civilized nations fully bears us out. In addition to what may be found in the foregoing references, we respectfully call attention to the following additional authorities: Campbell's Lives of Chief Justiees of England, vol. 1, p. 80; [vitae Roger Le Brabacond,] Ib. vitae Oliver St. John, 464-6-7-70, etc.; Jefferson's Works, vol. 7, p. 611-612; Hamilton's Works, vol. 7, pages 844-5; 8 Wheaton, 489; 2 Gallison, 501.

In another view, Arkansas is at least entitled to belligerent rights, always accorded by the laws of war of civilized nations, under the law of nations, to a conquered country, if she is so considered. Hughes vs. Lamy et al., Amer. Law Reg., Jan. No. 1866, p. 148; 2 Blacks. U. S. Sup. Ct. Rep, 635; Lawrence Wheat. 249, 250, note; ib. 605: Hildreth vs. McIntyre, 1 J. J. Marsh., 205.

That the state of Arkansas has never ceased to exist, and that, as to her own citizens and her internal affairs, she has always been sovereign, and independent; or, in other words, that the state of Arkansas never did surrender her sovereignty as to these matters, and that by her abortive attempt to secede from the United States, she did not forfeit any of these rights, or any other rights which she had not previously surrendered to the United States—Martin vs. Hunter's Lessee, 1 Wheaton, 304; [3d Cond. Rep., 473;] McCulloch vs. State of Maryland, 4 Wheaton, 316; [4 Cond. 466.]

But finally, there is an insuperable objection to the construction sought to be put upon the preamble of the present constitution, by the attorney for the defendant in error, namely—that such a construction would be the violation of the constitution of the United States; it would impair the obligations of contracts, and be in the nature of an ex post facto law; and the constitution of the United States is paramount, and her laws of superior force to the action of the state convention, as well as of legislatures.

We refer the court to the following authorities, as to laws impairing the obligation of contracts: 2 Story on Const., p. 236, sec. 1385; Blair vs. Williams, 4 Littell, Ky., 38-47; Lapsley vs. Brashear, ib. 56; ib. 75, 76; Davis vs. Ballard, 1 J. J. Marshall, (Ky.) 570; Tounsend vs. Tounsend, 1 Peck. Tenn., 1; Record Book K., of Opinions Sup. Ct. Ark., Burt vs. Williams—Opinion per Fairchild, (J.) p. 506; Smith's Com. on Constitutional Law, p. 384, sec. 252.

As to ex post facto laws, vide, Fletcher vs. Peck, 6 Cranch, 87, (1 Cond. Rep. 308;) Calder vs. Bull, 3 Dallas 386; (1 Cond. Rep. 172.

And on both the latter points, see Society vs. Wheeler, 2 Gallison 105.

Argument for defendant in error

RICE, for the defendant.

There was no judgment rendered in any court of the United States as a foundation for the execution.

The court will take judicial notice of the fact that there was a revolution on the part of the people of the state against the government of the United States, that the courts held in Arkansas when this judgment was rendered, were rendered under confederate, and not federal authority; that every department of the state, executive, legislative and judicial claimed allegiance to the confederate government; that the revolution, was unsuccessful; and that no civil government was established, that was recognized by any foreign power, or by the United States. The recognizing the "rebels" as belligerents bv the United States was not recognizing them as a civil government. See Secretary Seward's letter to Mr. Adams.

If the confederate government was a civil government, it was foreign to the United States; and the judgment being foreign, this court cannot examine and adjudicate upon the jurisdiction of the foreign tribunal that rendered it. See Bose vs. Hinely, 4 Cranch, 24.

Was this a court de facto or otherwise that rendered this judgment? To be a court of any jurisdiction it must have been a constitutional court. See 24 Wendell, 520,—Chancellor Walworth's opinion, and authorities cited; Obarman vs. Booth, 21 Howard, 515. The authority the court had was derived from the confederacy; and to give it legal power, the confederacy must have been a civil government de facto, or de jure; and the decision of this question belongs to the state department. Hoyt vs. Ghelston, 13 John., 139 ; Rose vs. Hinely, 4 Cranch, 24; Kennett vs. Chambers, 14 How., 38; Luther vs. Borden, 7 How., 1.

There can be no de facto court. There may be a de facto judge of a constitutional court. 1 J. J. Marsh., 205.

The court derived its authority from the confederacy, and that was not a de facto civil government with power to make a constitutional circuit, as has been decided by the political department of the government, and this court must follow that decision.

Belligerent rights do not constitute a civil government. Lawrence Wheaton on Int. Law, 40 and a note.

The constitutional convention which made the constitution under which this court is now acting expressly repudiate and declare null and void all legislative and judicial acts of the state of Arkansas, while acting under the ordinances of the convention of the 4th of March, 1861. The proviso cannot do away with the body of the act or section to which it is a proviso. The rule is thus stated. It is the general rule of law, which has always prevailed and become consecrated almost as a maxim in the interpretation of statutes, that when the enacting clause is general in its language and objects, and a proviso is afterwards introduced, that proviso is construed strictly, and takes no case out of the enacting clause which does not fall fairly within its terms. In short, a proviso covers special exceptions only out of the enacting clause, and those wne set up any such exception must establish it as being within the words as well as within the reason thereof. U. S. vs. Dickson, 15 Pet., 141.

But the clause or exception saving the rights of individuals is not repugnant to the body of the act or section. The convention in the body of the preamble, declare that no individual could acquire any rights under the confederacy, and then saves all their rights derived from any other source.

The question is asked, cannot a state by virtue of its reserved power legally pass laws, create courts, etc., although it has violated its compact with the United States by seceding therefrom? Could Arkansas, after the 6th of May, 1861, exercise that kind of sovereignty and have a civil government which was legal and whose acts would be binding?

The question as to whether she could do so may be a judicial one; but the question as to whether she did exercise soverignty and establish a civil government, is a political one, as decided in the Dorr and Borden cases, and the decision of the political department is binding on the courts.