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Perkins v. Rogers.

Justice, says: "It is a well settled principle, that contracts made before war are only suspended by the war, whereas contracts made during the war are void. This principle is fully recognized by the Supreme Court in regard to our late civil

war.

"In ancient times private property of alien enemies, and debts of every kind, were confiscated to the state. Happily all this has been changed in modern times, and now, while contracts made during war between alien enemies are absolutely void, being against public policy, private interests are protected, and bona fide contracts made before the breaking out of a war are suspended during its existence, but revive at its termination. To the honor of the United States and Great Britain, be it said that these rights have always been respected by them.

"It has been repeatedly decided, by both state and federal courts, that where, by a legislative enactment, parties are prevented from prosecuting their claims, the interval during which such prevention lasts is not to be counted as part of the time allowed by the statute of limitations. Now, the power to make war and peace is, by the constitution of the United States, delegated exclusively to the federal government; and as during the war the plaintiff, being a corporation of the State of Tennessee, had no right to bring suit against the defendant, who was a citizen of Maryland, the Maryland statute of limitations was suspended during such period.

"The general rule unquestionably is, that where the statute of limitations has once begun to run, no subsequent disability will arrest it. But we have already seen that a legislative en actment supends the running of the statute, and the same result follows from the declaration of war by the supreme power of the land.

"For it is a well recognized principle of the law of nations, that the right of a creditor to sue for the recovery of his debt is not extinguished by the war; it is only suspended during the war, and revives in full force on the restoration

Perkins v. Rogers.

of peace. A war then certainly existed between Tennessee and the federal government, from the President's proclamation of August 16th, 1861, and although a civil war, yet, according to the decision of the Supreme Court in the Prize Cases, it carried with it all the consequences and disabilities of a public war, one of which (as we have seen) was the suspension of the right to sue during the war. It follows, therefore, that the plaintiff in this case could have instituted no proceedings in this court until peace was proclaimed by the President's proclamation of June 13th, 1865.

"This suspension being by the exercise of the paramount authority of the government, cannot he held to work a forfeiture of a plaintiff's cause of action; but that his right to sue, suspended by the war, revived when it ceased. And as it has not been three years from the maturity of the cause of action to the commencement of the war, and from the termination of the war to the commencement of this suit, the suit is not barred by limitation, and the demurrer is therefore overruled."

In Brown v. Hiat, in the circuit court of U. S., district of Kansas, reported in Am. Law Times for March, 1871, which was an action brought by a person who was a citizen of Virginia during the war, against a person who was a citizen, during said time, of Kansas, the defendant pleaded the statute of limitations, to which the plaintiff replied the existence of war.

DILLON, C. J., says: "In arriving at this conclusion, viz., that unlicensed intercourse during the war was unlawful, and that pre-existing contracts are only suspended by it, the Supreme Court has frequently had occasion to refer to the legislation of Congress, and particularly to the important act of July 13th, 1861, the essential prohibitions of which continued in force during the whole period of the rebellion.

"It is important to notice with care the provisions of the fifth section of this statue (12 Stat. at Large, 225, 257).

"It authorizes the President to proclaim and declare, inhabitants' of certain states or any section or part thereof, to be in a state of insurrection against the United States, and there

Perkins v. Rogers.

upon all commercial intercourse, by and between the same, and the citizens thereof and the citizens of the rest of the United States, shall cease and be unlawful so long as such condition of hostility shall continue; and all goods, etc., coming from said state or section into the other parts of the United States, and all proceeding to such states or section by land or water, shall, together with the vessel or vehicle conveying persons to or from such state or section, be forfeited to the United States.

"Then follows a provision authorizing the President, in his discretion and for the public interest, to permit intercourse under regulations to be prescribed by the Secretary of the Treasury.

"The statute is a valid exercise of legislative power, for the Congress of the United States was not, by the rebellion, deprived of the power to legislate in this manner with a view to its suppression.

"Its prohibition of intercourse is as broad as the prohibition of the law of nations in the case of a war between independent states. By recurring to the act, it will be seen to extend to 'all' unlicensed 'commercial intercourse.'

"It admits of no exceptions as to persons, for it prohibits intercourse not simply between citizens of the insurrectionary states who were in fact disloyal, and citizens of loyal states, but it makes unlawful all unlicensed intercourse between all citizens of the states of hostile sections. All goods are prohibited to come from the insurrectionary sections into the other parts of the United States, and all goods are prohibited likewise from being sent from loyal to disloyal states. Vessels and vehicles are prohibited from conveying persons to or from the respective states or sections.

"It is obvious that this act contemplates a condition of entire non-intercourse of a pacific character between the two opposing sections, except such as should be authorized by the President for the public interest.'

"What is the necessary effect and consequence of this condition? It is the same as when a war existed between inde

Perkins v. Rogers.

pendent nations. All existing contracts between citizens of the different sections are suspended; this from necessity, because the act forbids all intercourse, and intercourse is essential in order to fulfil, or perform, or enforce contracts. The courts of the one section are shut, by the act of Congress, to the people of the other, for citizens of the insurrectionary states are forbidden to come into the other states, or hold any intercourse with their people, and without this, suits cannot be instituted or carried on, and the same is true as to citizens of the loyal states.

"It is manifest from the foregoing that the complainant, was he ever so loyally disposed towards the Union, had, by reason of his domicil in a state declared to be in insurrection, no right to institute or maintain, during the war, a suit in the courts of the United States or of Kansas, for the recovcry of his debt against the respondent. In a proceeding of this nature the courts cannot, under the act of July 13th, 1861, inquire whether the particular plaintiff was loyal to the Union or aided the rebellion; for if he was a citizen of a rebellious state he is regarded as an enemy, irrespective of his personal sentiments, sympathy, or acts. Mrs. Alexander's Cotton, 2 Wal. 404; The Venus, 8 Cranch, 253; The Indian Chief, 3 C. Rob. Adm. 12; The Friendschaft, 4 Wheat. 105. We may observe that it has been accordingly held by courts and judges of great respectability, that citizens of rebellious states could not, during the recent war, maintain suits in the courts of the other portions of the United States,"

In the case of Chapelle v. Olney, supra, the court say, "From and after the date of August 16th, 1861, all commercial intercourse was prohibited between the inhabitants of Arkansas and the people of the United States, and the transportation or removal of property to or from Arkansas and other parts of the United States, not declared to be in a state of insurrection, was punishable by forfeiture thereof. For the time being, the plaintiff was a citizen or inhabitant of a country at war with the United States, and therefore could not maintain an action in the courts within this State,

Perkins v. Rogers.

against the defendant, to secure this money. 1 Kent Com. 66. The plaintiff's remedy was suspended until the cessation of hostilities and the restoration of peace and lawful intercourse between the people of the two countries. Ibid, 68.

"The next question to be considered is, when did this state of insurrection or hostilities cease? Without stopping to consider whether the President has any power to declare the beginning or ending of an insurrection, except in pursuance of legislative authority, and conceding that all power over questions of war and peace, domestic or foreign, is vested by the constitution in Congress, except that vested in the treaty-making power, I am of the opinion that the authority conferred upon the Executive by the act of July 13th, 1861, to declare Arkansas in a state of insurrection, impliedly authorized him, if the state of things amounting to such insurrection should cease or change, to then declare it at an end, unless in the meantime Congress had otherwise provided. Assuming that the insurrection as to Arkansas was at an end from and after the proclamation in April 2d, 1866, the remedy of the plaintiff, the right to sue defendant for his money, was suspended for four years, seven months, and sixteen days. Deducting this period from the time between: the accruing of the right of action and the commencement of this action, leaves five years, one month, and one day, a period of eleven months and twenty-nine days less than that allowed by law within which to begin the action. This view of the matter is the most favorable one that can be taken for the defendant, for there is no ground upon which the court can assume that the insurrection, including the prohibition of intercourse between the people of the United States and Arkansas terminated at an earlier date. Actual war, the marching of hostile forces, and the conflict of opposing armies in battle, may have ceased sooner, but this proclamation is the earliest act of the government to which the attention of the court has been called, which purports or has the effect to relieve the inhabitants of Arkansas from the status. VOL. XXXV.-11

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