The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-08-06

named and not excepted were, at that
Itime, in "insurrectiou and rebellion
| Giving then to the language of the
| proclamation this construction, Stuart
the Clerk of the Circuit Court of Green
| brier county. was by il declared to bt
in tinsurrection and rebellion" SO thai
| by the declaration and ordinances oi
the restored government the office was
declared to be vacant, and Stuart was
not exercising the functions of an ottict
de jWre; therefore his acts were null and
void. '-- '
But it is claimed that ,inasmuch as
the Clerk did in fact issue the process
in the cause, therefore he was "A Clerk
de Iacto and his acts valid. 1 have
shown that he was not acting in subor.
dination to The United States Govern
ment, but that he was acting in
hostility thereto, and as an officer o.
the insurgent government which was
then being attempted to be Established
What would be the effect il this Couri
holds his acts valid 2 1t would be TO hc-
knowledge the existence and validity
Ofthe insurgent government, so far as
this Court could do il, for this clerk was
| Just as much part of 1t as was any
other officer in 1t. $3.50
It would be to repudiate the result OF
the war as well as the purposes for
which it was waged by the Government
of the United States, for the purpose for
which it WAS waged was TO suppress
| the insurrection and prevent the tnsur-
lished, and such was its result:
The Judicial department of the
insurrection was just as vital a
part of 1t as was the legislative or
executive departments, or its military
power, and its acts cannot be any more
valid or durable than the acts of the
legislative or executive departments, or
It's military orders. Fa1
But still 1t is Insisted that we must
decide that he was nm officer de ydcto
exercising the duties of "A de Jdcto othce,
and his acts valid .or else array our
selves in opposition to the rulings of
other courts on similar questions.
There has not been single case cited
before this court in the argument of
this case, or in any other argued before
us, in which any principle has been set
tied which would require, or even JUS
tify, this courtin holding that he was
an officer de Jdcto exercising the duties
of a de Idct0 office.
No case has been cited, nor have I
been able TO find one, in which the acts
of II de Jdct0 officer have been held valid,
unless it was where he was exercising
the functions of either a de jlire or de
JuctO office. -
Most OF the cases cited are where the
offices were legal and constitutional,
but where there was some irregularity
in the eligibility, election or qualitica-
tion of the officers. A de IdctO office
cannot exist under u constitutional gov
ernment, but when the government is
entirely reyolutionized, and all its de-
partments usurped by force, then pru-
dence recommends and necessity en-
forces obedience to the authority of
those who may act as the public func-
tionaries; and in such a case the acts OF
a de JGcLo executive, de Jdcto judiciary
and de JdctO legislature, must be re-
cognized as valid. And such. is the
character OF the cases referred to In
Jenkins, l3l, cited in argument.
He was not exercising the duties OF
de fdctO office unless the Government
of the United States was subverted and
the insurgent government had become
u de Jdcto government. Hildreth's heirs
Us. McIntire's devisees, ! MarshalPs
Rep. 206. If it was de JdctO govern
ment, its offices were all de JGctO Offices
aud its officers de Jdcto officers. Wheth-
er or not the insurgent government
ever became a de JdctO government this
Court cannot know judicially. That is
n fact which the political department of
the government must determine and
its determination is conclusive OF the
question on all other departments, and
of which they must take notice. Prize
cases, 2 Black; Luther Us. Borden,
Howard, /; ellison Us. Hoyt, 8 Wheat
246; United States US. Palmer, Wheat
6IO; United States Us. Keynes, Howard
l27. The political departments If
the government never acknowledged
the insurgents as government
de 6dct0 or in any sense a political
power, but always held the contrary.
Stuart, therefore, was not exercising
the functions of even de JGcto office,
and his acts are void, even as to third
parties.
II 10 c)oIYnad that undar the cOnstitu-
ton and laws of this State, officers
elected or appointed, and acting under
the laws of Virginia, within this State,
are continued in office until their sue
cessors are elected and qualified. The
fair Interpretation of these provisions
is that they apply only to persons in
office under the restored government OF
Virginia, and who recognized its au-
thority. sr.
The petition in this case asserts that
this is question of great magnitude to
the community from which the case
comes, and that If the order of the
Court is right 1t would make confusion
confounded and harass the community
excessively. While this may be true,
yet 1t is one of the many unhappy re-
suits growing out of the late unfortu-
nate rebellion, and which this Court
has no power to relieve against.
q Ithink the order complained of VIII
have to be affirmed. sa..
81. NATIONAL SHORTCOMINGS. - John
- II - T..