sipated, its armies scattered, and the whole fabric of its government broken in pieces. The very property it had amassed passed to the nation. The United States during the whole contest, never for one moment renounced their claim to supreme jurisdiction over the whole country, and to the allegiance of every citizen of the republic. They never acknowledged in any form, or through any of their departments, the lawfulness of the rebellious organization or the validity of any of its acts, except so far as such acknowledgment may have arisen from conceding to its armed forces in the conduct of the war the standing and rights of those engaged in lawful warfare. They never recognized its asserted power of rightful legislation.

There is nothing in the language used in Thorington v. Smith, 8 Wall. 1, 19 L. Ed. 361, which conflicts with these views. In that case, the Confederate government is characterized as one of paramount force, and classed among the governments of which the one maintained by Great Britain in Castine, from September, 1814, to the treaty of peace in 1815, and the one maintained by the United States in Tampico, during our war with Mexico, are examples. Whilst the British retained. possession of Castine, the inhabitants were held to be subject to such laws as the British government chose to recognize and impose. Whilst the United States retained possession of Tampico, it was held that it must be regarded and respected as their territory. The Confederate government, the court observed, differed from these temporary governments in the circumstance that its authority did not originate in lawful acts of regular war: but it was not, on that account, less actual or less supreme; and its supremacy, while not justifying acts of hostility to the United States, "made obedience to its authority in civil and local matters, not only a necessity, but a duty." All that was meant by this language was, that as the actual supremacy of the Confederate government existed over certain territory, individual resistance to its authority then would have been futile, and, therefore, unjustifiable. In the face of an overwhelming force, obedience in such matters may often be a necessity, and, in the interests of order, a duty. No concession is thus made to the rightfulness of the authority exercised.

Nor is there anything in the decision of this court in the Prize Cases which militates against the views expressed. It was there simply held, that when parties in rebellion had occupied and held in a hostile manner a portion of the territory of the country, declared their independence, cast off their allegiance, organized armies, and commenced hostilities against the government of the United States, war existed; that the President was bound to recognize the fact, and meet it without waiting for the action of Congress; that it was for him to determine what degree of force the crisis demanded, and whether the hostile forces were of such magnitude as to require him to accord to them the character of belligerents; and that he had the right to institute a blockade of ports in their possession, which neutrals were bound to recognize.

It was also held that as the rebellious parties had formed a confederacy, and thus become an organized body, and the territory dominated by them was defined, and the President had conceded to this organization in its military character belligerent rights, all the territory must be regarded as enemy's territory, and its inhabitants as enemies, whose property on the high seas would be lawful subjects of capture. There is nothing in these doctrines which justified the Confederate States in claiming the status of foreign states during the war, or in treating the inhabitants of the loyal states as alien enemies.

Nor is there anything in the citations so often made from Wheaton and Vattel, as to the rights of contending parties in a civil war, which, if properly applied, militates against these views. After stating that, according to Grotius, a civil war is public on the side of the established government, and private on the part of the people resisting its authority, Wheaton says: "But the general usage of nations regards such a war 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, sect. 296. The writer is here referring to the consideration with which foreign nations treat a civil war in another country. So far as they are concerned, the contending parties to such a war, once recognized as belligerents, are regarded as entitled to all the rights of war. As between the belligerent parties, foreign nations, from general usage, are expected to observe a strict neutrality. The language used has no reference to the rights which a sovereign must concede, or is expected to concede, to insurgents in armed rebellion against his authority. Upon the doctrine stated in the citation the United States acted towards the contending parties in the civil war in South America. In speaking on this subject, in the case of The Santissima Trinidad, 7 Wheat. 283, 5 L. Ed. 454, this court said: "The government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed a determination to remain neutral between the parties, and to allow to each the same rights of asylum and hospitality and intercourse. Each party is, therefore, deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights. We cannot interfere to the prejudice of either belligerent, without making ourselves a party to the contest, and departing from the position of neutrality."

Vattel says: "A civil war breaks the bands of society and government, or, at least, suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge. Those two parties, therefore, * * * On must necessarily be considered as thenceforward constituting at least for a time, two separate bodies, two distinct societies. earth they have no common superior. They stand, therefore, in precisely the same predicament as two nations who engage in a contest,

and, being unable to come to an agreement, have recourse to arms. This being the case, it is very evident that the common laws of war— those maxims of humanity, moderation, and honor, which we have already detailed in the course of this work-ought to be observed by both parties in every civil war. For the same reasons which render the observance of those maxims a matter of obligation between state and state, it becomes equally and even more necessary in the unhappy circumstance of two incensed parties lacerating their common country." Vattel, Law of Nations, p. 425. All that Vattel means by this language is, that in a civil war the contending parties have a right to claim enforcement of the same rules which govern the conduct of armies in wars between independent nations-rules intended to mitigate the cruelties which would attend mutual reprisals and retaliations. He has no reference to the exercise of legislative power by either belligerent in furtherance of its cause. The validity of such legislation depends not upon the existence of hostilities, but upon the ultimate success of the party by which it is adopted.

It is unnecessary to pursue the subject further. Whatever de facto character may be ascribed to the Confederate government consists solely in the fact, that it maintained a contest with the United States for nearly four years, and dominated for that period over a large extent of territory. When its military forces were overthrown, it utterly perished, and with it all its enactments. Whilst it existed, it was regarded, as said in Thorington v. Smith, "as simply the military representative of the insurrection against the authority of the United States." 8 Wall. 1, 19 L. Ed. 361; Keppel's Adm'rs v. Petersburg Railroad Co., Chase, 167, Fed. Cas. No. 7722.

Whilst thus holding that there was no validity in any legislation of the Confederate States which this court can recognize, it is proper to observe that the legislation of the states stands on very different grounds. The same general form of government, the same general laws for the administration of justice and the protection of private rights, which had existed in the states prior to the rebellion, remained during its continuance and afterwards. As far as the acts of the states did not impair, or tend to impair, the supremacy of the national authority, or the just rights of citizens under the Constitution, they are, in general, to be treated as valid and binding. As we said in Horn v. Lockhart, 17 Wall. 570, 21 L. Ed. 657: "The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated, precisely as in time of peace. No one, that we are aware of, seriously questions the validity of judicial or legislative acts in the insurrectionary states touching these and kindred subjects, where they were not hostile in their

purpose or mode of enforcement to the authority of the national government, and did not impair the rights of citizens under the Constitution." The same doctrine has been asserted in numerous other cases.

It follows from the views expressed that the state court erred in overruling the demurrers to the special pleas. Those demurrers should have been sustained, and the plaintiffs should have had judgment upon the agreed statement of facts for the amount of their claim, with interest from its maturity, deducting in the computation of time the period between the 27th of April, 1861, at which date the war is considered to have commenced in Virginia, and the 2d of April, 1866, when it is deemed to have closed in that state. The Protector, 12 Wall. 700, 20 L. Ed. 463; Brown v. Hiatts, 15 Wall. 177, 21 L. Ed. 128.

The action of the Court of Appeals of Virginia in refusing a supersedeas of the judgment of the circuit court must, therefore, be reversed, and the cause remanded for further proceedings in accordance with this opinion and it is

So ordered.10

16 See Keith v. Clark, 97 U. S. 454, 24 L. Ed. 1071 (1878), holding that the state of Tennessee, notwithstanding its attempt to secede, remained a state o the Union, and that its legislation during the period of secession was valid, in so far as it was not contrary to the Constitution of the United States.

In Baldy v. Hunter, 171 U. S. 388, 18 Sup. Ct. 890, 43 L. Ed. 208 (1897), Mr. Justice Harlan says (after an elaborate enumeration and discussion of the leading cases dealing with the status of Confederate States): "From these cases it may be deduced that the transactions between persons actually residing within the territory dominated by the government of the Confederate States were not invalid for the reason only that they occurred under the sanction of the laws of that government or of any local government recognizing its authority; that, within such territory, the preservation of order, the maintenance of police regulations, the prosecution of crimes, the protection of property, the enforcement of contracts, the celebration of marriages, the settlement of estates, the transfer and descent of property, and similar or kindred subjects were, during the war, under the control of the local governments constituting the so-called Confederate States; that what occurred or was done in respect of such matters under the authority of the laws of these local de facto governments should not be disregarded or held to be invalid merely because those governments were organized in hostility to the Union established by the national Constitution; this, because the existence of war between the United States and the Confederate States did not relieve those who were within the insurrectionary lines from the necessity of civil obedience, nor destroy the bonds of society, nor do away with civil government or the regular administration of the laws, and because transactions in the ordinary course of civil society as organized within the enemy's territory, although they may have indirectly or remotely promoted the ends of the de facto or unlawful government organized to effect a dissolution of the Union, were without blame 'except when proved to have been entered into with actual intent to further invasion or insurrection'; and that judicial and legislative acts in the respective states composing the so-called Confederate States should be respected by the courts if they were not hos tile in their purpose or mode of enforcement to the authority of the national government, and did not impair the rights of citizens under the Constitution." Generally de facto judgments are valid, as in the case of a Spanish judg ment made in Louisiana after the cession, but before delivery of possession to the United States; for it was the judgment of a competent Spanish tribunal, having jurisdiction of the case, and rendered whilst the country, though ceded, was, de facto, in the possession of Spain, and subject to Spanish laws,

GUSTAVE GAULTIER et al.

(Court of Cassation of France, 1911. 116 Bulletin des Arrêts de la Cour de Cassation Rendus en Matière Criminelle, 453.)

The question of the status of the Papacy was finally presented in a juridical way in the following manner:

On July 4, 1909, upon the occasion of the beatification of Jeanne d'Arc, flags of white and yellow, the Pontifical colors, were flown in. certain localities from windows of various buildings which faced the street. In the town of Mans, prosecutions were begun for the violation of a decree of the prefect of La Sarthe, of February 16, 1894. The persons accused of infringement of this decree were prosecuted before the Police Court of Mans. They were acquitted by a judgment of this Court under date of July 26, 1909.17

THE COURT. Whereas, M. X. has been prosecuted for having displayed, on July 4 last, from the window of his house overlooking the public street, flags of the Holy See, and for having thus violated the Prefectoral Decree of February 16, 1894, reading as follows:

"Article 1. The displaying and the bearing of flags, either on public streets or in buildings, grounds and places, freely open to the public are interdicted in the Department of La Sarthe.

"Article 2. The flags of French or foreign national colors and those serving as insignia for authorized or approved societies are excepted from this measure;"

Whereas, all the citizens, without exception, are subject to the laws regularly promulgated, as well as to the regulations legally issued by the administrative authorities;

Whereas, the application of these regulations should be restricted to the cases for which they provide, and, whereas, the present case is concerned solely with determining whether the Pontifical flag should be included or not in the category of flags exceptionally authorized; Whereas, the personal flag of a sovereign enjoys the same privilege as that of a State;

Whereas, until the law of December 9, 1905, was passed, the quality of the sovereign was, without dispute, accorded to the Pope by all foreign Powers, with all the prerogatives attached to sovereignty, among them that of having a special flag with colors distinctive of and such judgments, so far as they affect the private rights of the parties thereto, must be deemed valid. Keene v. McDonough, 8 Pet. 308, 8 L. Ed. 955 (1834); Trevino v. Fernandez, 13 Tex. 630, 662, 666 (1855); Daniel v. Hutcheson, 86 Tex. 51, 22 S. W. 933 (1893), affirming the validity of judgments of military courts established in Texas during the reconstruction period.

17 Statement taken from an article by Gilbert Gidel, "Quelques Idées sur la Condition Internationale de la papauté," in Revue Générale de Droit International Public, tome XVIII, p. 589 (1911).

The text of the judgment is likewise taken from this article. Id. 595, 596, note.

SCOTT INT. LAW-4