David Walker

“ The idea of either conquest or coercion, is not to be tolerated from any thing in the history or structure of our government, unless it be that coercion which is necessary to suppress insurrection and rebellion. The public mind has been for a time unsettled upon this question, and, even at this time, it would seem that there exists, in some minds, an impression that, by the exercise of military force, the whole civil governments of the states have been overturned by revolution; in consequence of which, new powers have sprung into existence. ”

“ There can be no estoppel in the way of ascertaining the existence of a law. That which purports to be a law of a State is a law, or it is not a law, according as the truth of the fact may be, and not according to the shifting circumstances of parties. It would be an intolerable state of things if a document, purporting to be an act of the legislature, could thus be a law in one case and for one party, and not a law in another case and for another party; a law to-day and not a law to-morrow! a law in one place, and not a law in another in the same State. ”

“ It may not be unworthy of remark, that it is very unusual, even in cases of conquest, for the conquerors to do more than to displace the sovereign, and assume dominion over the territory. The modern usages of nations, which have become law, would be violated; that sense of justice and of right, which is acknowledged, and felt by the whole civilized world, would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance, their relation to their ancient sovereign is dissolved. ”

“ Where the authority to act is solely conferred by statute, which is, in effect, the letter of attorney of the officer, all persons must, at their peril, see that the act of the agent on which he relies, is within the power under which the agent acts; and this salutary and sound doctrine seems to be recognized by the Supreme Court of the United States in its most recent judgments. Accordingly, the bonds issued in violation of an express statute, or Constitution, are void, though in the hands of innocent holders for value. ”

“ We have seen that the national government was formed by the states, and the people, and is of defined limited powers, under which it must act in time of war, as well as in peace. The power of conquest is no where delegated, and therefore cannot be rightfully exercised. But if such power had been given, it certainly never could be, that the United States could conquer her own territory ”

“ And in addition to these, are, upon principle, those, also, of acquiring, possessing, and protecting property, which, by the express language of the declaration of rights in the constitution of Arkansas, are excepted out of the powers of the government, and are declared to be forever inviolate. Perhaps, in the whole history of man, no more sweeping attempt was ever made, to destroy the rights of property, than the one under consideration, if the construction of the ordinance contended for by the counsel for the defendant should be adopted. ”

“ But in the second class, where the power does exist but has been abused, if the bonds passed into innocent hands for a valuable consideration, an obligation may rest upon the State to pay them, and it would be repudiation to refuse payment. States, as well as all other parties who act through agents, lawfully appointed and acting within the pale of their authority, are bound by the acts of such agents, even though they may be prejudicial to the interest of the party conferring the power to contract. ”

“ Justice LIPSCOMB, who delivered the opinion of the court, after a review of authorities, concludes that no treaty stipulations are necessary to protect the rights of property, upon a change of government, and proceeds: "It would be difficult to conceive, on any known principles of reason, or just regard to the rights of man, why a change made by the people themselves, should subject their rights to harsher rules of construction. ”

“ The authorities upon this point are numergys and clear, and we do not understand counsel as contending that, in order to give effect to this constitutional provision, legislation is not necessary; nor that it is not also necessary, before the passage of an act which provides for loaning the credit of the State for railroad purposes, that the qualified voters of a State, should assent to the passage of a law by a majority vote. But they contend that if a majority so voting, vote for railroad, the law becomes operative and is in force. ”

“ We know that, as the civil war enlarged in proportions, an increased force was used by the national government, and under the plea of national necessity upon a great emergency, powers not provided for under the constitution, were exercised, in which the views of counsel may have taken root, but we must believe that however cultivated and to whatever dimensions they have recently grown, they are a growth, the seeds of which were never scattered by the great arm of the patriot founder of the national government. ”

“ If, upon the foregoing statements of facts, the court shall be of the opinion that the defendant corporation is liable in any form of action or proceeding, or by any process, for the sums of money, so as aforesaid paid by the State for interest, judgment is to be rendered in favor of the State, for the sums so paid with interest thereon from the respective dates of payment, at the rate of six per centum per annum, which judgment may be paid or satisfied in the manner provided in section 7, of the aforesaid act of July 21, 1868, for the payment of the annual tax therein specified. ”

“ There is no government in action, excepting the government de facto, because all the attributes of sovereignty, have, by usurpation, been transferred from those who had been legally invested with them to others, who sustained by a power above the forms of law, claim to act, and do act in their stead. ”

“ They all hold, that a vote of the people, expressive of their assent to be taxed, must be taken under authority of law, before the legislature can enact a valid law to bind the people of the State to pay debts contracted under it.
Our Constitution expressly denies that the credit of the State shall ever be loaned for any purpose, without the consent of the people thereto expressed at the ballot box. ”

“ When a party is formed in a state, who no longer obey the sovereign, and are possessed of sufficient strength to oppose him—or when, in a republic, the nation is divided into two opposite factions, and both sides take up arms—this is called a civil war. ”

“ The officers of such corporations possess no general power to bind them, and have no power except such as the legislature confers. If the statute authorizes such a corporation to issue its bonds only when the measure is sanctioned by a majority of the voters, bonds issued without such sanction (either in fact or according to the decision of some authorized body or tribunal) , or when voted to one corporation, and issued to another, are void, into whosesoever hands they may come. ”

“ And allegiance is due from the people of the state, to their state government, to the full extent of its power and jurisdiction, and in this respect, there is no conflict between the allegiance due to the state, and to the federal government. Thus, there exist within the United States, two sovereign, independent powers, state and federal, but not over the same objects of government, because the one is strictly national, the other local. Each supreme and independent of the other, when acting within its legitimate sphere of action ”

“ Justice STORY said: "The government of the United States can claim no powers which are not granted to it by the constitution, and the powers must be such as are expressly given, or given by necessary implication." ”

“ We must hold the bonds utterly void. The State is not responsible for them, and, as a consequence, has no debt to be secured by lien, nor has the State any claim upon the road for the coupons paid by her. The road is not responsible for them, and is under no obligation to redeem the coupons of void bonds. To pay them was an act of folly on the part of the State. ”

“ The words, "all the action of the state," in the second clause of the ordinance, should receive a like limited meaning, because if all the action of the state, legislative, executive, judicial, and military, without limitation, should be held void ab initio the proviso, which declares that the "rights of individuals" are excepted, can have no effect; because it is utterly inconsistent, to declare all void, and still that a part shall be preserved. ”

“ The most that can be said is, that in referring to the act of 1857, the legislature inadvertently supposed that it had been passed. Not only courts, but individuals, are bound to know the law, and cannot be heard to plead ignorance of it. The holder of the bonds can claim no indulgence on this score, and can take no advantage from the allegation, that he is a bona fide purchaser, without notice. ”

“ It is the duty of the court, if possible, to ascertain the legislative will, and to execute it, because the intention constitutes the law; no construction is to be indulged, that could produce absurd consequences ”

“ Where the party in rebellion occupy and hold, in a hostile manner, a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have engaged in hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war. ”

“ An election was held on the 16th of April, 1863, and if the act mentioned had not then become a law, it is evident that no such vote has been given in favor of the removal of the county site as the Constitution provides. Sec. 3, Art. 3, declares that no public act of the General Assembly shall take effect, or be in force, until the expiration of sixty days from the end of the session at which the same is passed, unless so expressly declared by the legislature. ”

“ Such was the condition of the people of Arkansas. They owed to the United States allegiance, to the extent of her delegated powers for national purposes, bnt the moment the laws, which protected the citizen, were suspended by force of a civil war, that allegiance ceased.
During the suspension, there must, of necessity, be some law to govern the people. All associations of people, when numerous, must of necessity have government; self-protection, indeed their very existence depends upon it. A civilized christian people are not because of war, to be remitted back to a state of barbarism. ”

“ The mere statement of these very important and difficult questions, about which there has been such a diversity of opinion, at all times since the formation of the national government, and which resulted in a most disastrous civil war, shows the magnitude of the questions to be decided, and the difficulties which are to be encountered in their determination. ”

“ Guided, as we are assured we shall be, by well established historical facts, by the decisions of our own courts of the highest authority, and assisted, as we have already been, by the eminent counsel who have argued the case, with an earnestness and ability alike creditable to themselves and to the profession, and profitable to the court, we will proceed briefly to review some of the most prominent circumstances connected with the formation of the two governments, state and federal. ”

“ If we should adopt the latter construction as the true one, in doing so we must depart from flie obvious purpose for which the convention was called, and substitute in its stead, purposes and acts, which could only have resulted from very great ignorance, or an utter disregard to the laws of war, the precedents in the history of modern revolutions, the decisions of our highest courts, made by our most distinguished judges, and to every prompting of humanity. ”

“ It is indeed a principle, that seems to pervade the whole social relations of man, that laws, customs, and usages, when once established, shall continue until abrogated by the introduction of new ones ”