ed to repeal the North Carolina Ordinance of 1789 by

which the Constitution of the United States was ratified,

and to repeal also al] subsequent acts by which the assent of

North Carolina was given to amendments of the Constitu-

tion,—did in fact repeal that Ordinance and those acts, and

thereby absolved the people of the State from all obligation

as citizens of the United States, and made it impossible to

commit treason by levying war against the National gov-

ernment.

No elaborate discussion of the theoretical question thus

presented seems now to be necessary. The question as a

practical one is at rest, and is not likely to be revived. It is

enough to say here that, in our judgment, the answer which

it has received from events is that which the soundest con-

struction of the Constitution warrants and requires.

Nor can we agree with some persons, distinguished by abili-

ties and virtues, who insist that when rebellion attains the

proportions and assumes the character of civil war, it is

purged of its treasonable character, and can only be punish-

ed by the defeat of its armies, the disappointment of its’

hopes and the calamitiés incident to unsuccessful war.

Courts have no policy and can exercise no political powers.

They can only declare the law. On what sound principle,

then, can we say judicially that the levying of war ceases to

be treason when the war becomes formidable? that war,

levied by ten men or ten hundred, is certainly treason, but

is no longer such when levied by ten thousand or ten hun-

dred thousand ? that the armed attempts of a few, attended

by no serious danger to the Union, and suppressed by slight

exertions of the public force, come, unquestionably, within

the constitutional definition, but attempts by a vast combi-

nation, controlling several States, putting great armies in

al

IN THE U. S. CIRCUIT COURT.

Shortridge v. Macon.

the field, menacing with imminent peril the very life of the

Republic, and demanding immense efforts and immense ex-

penditures of treasure and blood for their defeat and sup-

pression, swell beyond the boundaries of the definition and

become innocent in proportion to 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 gov-

ernments attacked by organized and formidable rebellion,

to exercise and to concede belligerent rights. Under such

circumstances, instead of punishing rebels when made pris-

oners in war as criminals, they agree on cartels for exchange,

and make other mutually beneficial arrangements; and, in-

stead 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 are concessions made by the Legislative and

Executive departments of government in the exercise of po-

litical 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 also 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 many.

Wise governments never forget that the criminality of

individuals is not always or often equal te that of the acts

committed by the organization with which they are con-

nected. 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.

When the strife of arms is over, such governments, there-

JUNE TERM, 1867.

Shortridge v. Macon.

fore, exercising still their political discretion, address them-

selves 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 author-

ity, and individuals not included in these classes, with some

exceptions of the greatest offenders, are absolved by pardon,

either absolutely or upon conditions prescribed by the gov-

ernment.

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 exceed all example. While hostilities were yet fla-

grant, one act of Congress practically abolished the death

penalty for treason subsequently committed, and another

provided a mode in which citizens of rebel States, maintain-

ing a loyal adhesion to the Union, could recover after war

the value of their captured or abandoned property.

The National Government has steadily sought to facilitate

restoration with adequate guaranties of uniun, 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 admitted the existence of any

government de facto hostile to itself within the boundaries

of the Union.

In the Prize cases the Supreme Court simply asserted the

right of the United States to treat the insurgents as bellig-

erents, and to claim from foreign nations the performance

of neutral duties under the penalties known to international

IN THE U. 8. CIRCUIT COURT.

Shortridge v. Macon.

law. These decisions recognized, also, the tact of the exercise

and concession of belligerent rights, and affirmed, as a ne-

cessary 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 tu the Union,

were enemies reciprocally each of the other. But there is

nothing in that opinion which gives countenance to the doc-

trine 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 inhab-

itants alien enemies.

This proposition being denied, it must result that in com-

pelling debtors to pay to receivers, for the support of the re-

bellion, debts due to any citizen of the United States, the

insurgent authorities committed an illegal violence, by which

no obligation of debtors to creditors could be cancelled or

in any respect affected.

Nor can the defence 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 Eng-

lish 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 en-

forced by the insurgent authorities, been afterwards ques-

tioned 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.

JUNE TERM, 1867.

Shortridge v. Macon.

2 But it hardly needs remark that those decisions were

. made under circumstances widely differing from those which

now exist.

They were made by the courts of States which had suc-

ceeded in their attempt to sever their colonial connexion

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 self-styled government, seek-

ing 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 consider the conse-

quences. If they succeed, rebellion becomes revolution, and

the new government will justify its founders. It they fail,

all their acts hostile to the rightful government are viola-

tions of law, and originate no rights which can be recog-

nized by the courts of the nation whose authority and ex-

istence 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 de-

fendant, 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 prin-

cipal. There are, indeed, some authorities to the point that

interest which has accrued during war between independent

nations cannot be afterwards recovered, though the debt,

with other interest, may be. But that rule, in our judg-

ment, is applicable only to such wars. We perceive

nothing in the act of the 13th July, 1861, which suspended

for a time all pacific intercourse between the loyal and in-

IN THE U. S. CIRCUIT COURT.

Shortridge v. Macon.

surgent portions of the country, that requires or justifies the

application of that rule to the case 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.

Per Curiam.