The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-11-05

Contract und after the WAR.
The following important opinion delivered
in the Supreme Court OF The United States OH
Monday last, Is Of 80 much interest that Southern
rcndcrs will hardly he content with the tccgraphic
abstract already given in THE NEWS. We there
fsrc publish the decision in full, as pronounced by
Chief Justice Chase:
TIiOnINGToN VS.. SMITH & rIARTLEY-orISIoN or
THE COURT BY CHIEF JUSTICE CHASE.
This Is bill In equity for the enforcement OF a
vendors lien.
II is not denied that Smith 4 Hartley purchased
ThOrlngtons land, OF that they cNcciltcd To him
their promissory note for part of the purchase
money, as set forth In his hill; or that, If there
WAS nothing more in the case, lie would hc enti-
tied to n decree for the amount of the note and
interest and for the sale Of the land to satisfy the
nen Sa n mt m IS inss.e sic ey inc way OF GeemcS
took place, and That the note in controversy, pay
able one ,iay utter date, was ma'ie at M Monlgomo-
ry, In the State OF Alabama, where r the parties
authority Of the United States was excluded, from
In use consisted Of Confederate Treasury notes,
issued and put In circulation by persons eXercls-
Known MS The Confederate government. '
1t was also insisted that the land purchased
was worth more than three thousand dollars In
lawful money; that the contract price was forty
five thousand dollars; that this price, by The
agreement of the parties, was to he paid In Con-
rctlerate notes; that thlriyivc thousand dollars
were actually paid In these notes; ami that the
note given for the remaining ten thousand dollars
was to be discharged in the same manner; and it
Is claimed OH this state of ftcts that the vendor
Is entitled to 10 RELIEF In court OF the United
below, and the bill was dismissed. Tie questions
before us on appeal are these: First, can con-
tract for the payment OF Confederate notes, made
during the late rebellion, between parties residing
within the socallcd Confederate States lie cli-
forced ut all In the courts OF the United S:atcss
promise expressed 10 be for the payment or dol
lars was In fact, and for the payment Of any other
evidence in the record establish the fact that the
note for ten thousand dollars was to be pad 10y
agreement OF the parties, IN Confederate noles2
Tile first question iS by no means free from tlin-
Guilty. II cannot be questioned that the C0nfcde-
rate notes were issued In furthcrancc Of an un-
lawful ATTEMPT TO overthrow the Government OF
the United States by insurrectonary force. Nor
is 1t doubtful principle Of law that no contract
made In aid OF such an attempt can be enforced
through the courts of the country whose govern.
lncnt Is thus assaed. But was the contract OF
the parties to this suit contract OF that charac-
tcr-can Ii be fairy described rs contract In lid
OF tile rebellion? In examining this question, the
state OF that part OF the country in which il was
that early I'm 1861 the authorities Of seven States
supported, rs was alleged, by popular maloritics
Union, and for the establishment, within its
boundaries, OF separate and independent coli
sentna these States, Was esta6iisncd ai Mpnt.
gOmery, In Alabana, first under IL provisional
constitution, and afterwards under u cOnstitu-
tion intended 10 lie permanent. In the course
OF few months four other States accciled tn this
confederation and the sent Of the central nu-
thorty was transferred to Richmond, In Virginia.
IL was by the central authority thus organized,
and under It's direction, that the civil war was
carried on upon vast scale aganst the Govern
mcnt OF the United States for more than four
years. lts power %as recognized as supreme In
nearly the whole OF the territory OF the States
federated. IL was the actual government OF all
the insurgent Staies except those portions of
them protected from It's control by tile presence
What was the precise character OF this govern.
ment IN contemplation OF law Il is difficult to
S be given may may not aprobaSS be founa t,ns as
e'ImItation and qualification. But the Gfs5issal
viii Me think G sondae. % Us to
ciently accurate. There arc several degrees or
ernment, in its highest degrees, assumes char
goyernment. This IS when the usnrping govern
ment eNpels the regular authorities from their
customary seats anf functions, and establishes
itself in their places, and So becomes the actual
characteristics OF such q government Is that adj
herents to It in war against the government
under certain limitations, obligations assumed
by II in behalf OF the country otherwise wiil In
general, he respected !y the government tie jioe
Examples OF this description OF government de
.Jacto are found In English history. The statute
II, Henry VII, e. J. ti|rit stat. ut arge) relieves
from penalties for treason all persons Who In ,le
fence of the king for the time being, wage war
against those who endcaSOr To subvcrt his author
ity by force or arms, though warranted in so
doing by the lawful monarch, q III. Comm, III
But this is where the usurper obtuins actual pos.
session OF the royal authority Of tile Kingdom;
not when lie has succeeded only in establishing
his power over particular localities. BEING In
such possession, allegiance Is due TO him rs King
de GictO.
Another example may he found In the govern.
mcnt OF England under the Commonwealth, first
hy Parliament AMI afterwards by Cromwell, as
Protector. IL was not, In the contemplation of
law, II government de jur6 hut II WAS Il govern
mcnt de htctO In the absolute sense IL made
laws, treaties and cOnqucsts, which remained ihc
lnws, treaties and conqucs's of England after the
restoration. The better opinion IS that acts done
IN obedience TO this government could not he
Justly regarded as trcasOnable, though In hostility
to The king de jme. Such acts were projected
letter, OF the statute OF Henry the Seventh. II
was held otherwise BY the Judges by WHOM Sir
Henry fane was tried for treason q State Iriais
1lo,) In the year following the restoration. Eut
such Judgment In such n time has little author
1t is very certain that the Confederate Govern
mcntwas never acknowledged by the United
states as II dc .6tctO government in this sense
crs. No treaties were made by 1t. No obligation
OF national character We're created by II bind
represented or on the national government. From
avery carly period Of the war to Its close IL was
the Instruction against the authority of the
United States
But there Is another description OF govern.
@ nent. called by pnbliests government de Jascto,
but which might perhaps, be more apily denoni-
mated Il government or paramount force. It's
istencc Is maintained by active military power
within the territories and against the rlghtful
authority for established and lawful government;
ana (2l that while It exists It must necessarily Id
obcycd in civil matters by private citizens, who,
by acts or obedience rendered In submission to
such force, do not become responsible us wrong
docrs for these acts, though not warranted by the
laws Of the rlghtful government. Actual govern
ments OF this sort are established over districts
differing greatly in extent and conditions; they
are usually administered directly by military ali-
.h,S,rIisy; ,S,I ht they may be administered also by
force.
One example OF this sort OF government IA
found In the case OF Caslne, OF Maine reduced to
British possespion Ghc war Of 1922 From The
lst OF September, 1914, to the ratification of tile
treaty Of peace In 1916, according to the judgment
Of the court, In the United States vs.. islce q
wheat, 2b3l 'the British Government exercised
all CIVIL ana military authority over the lluce.n
The authority OF the United States over the terri.
tory was suspended and the laws OF the United
states could no longer be rightfuliy enfort
There, or be obligatory upon the inhabitants who
remained and submitted tO'the conqucror. by
The surrender the inhabitants passed under n
temporary allegiance to the Ilrltiah linYcrnlnrnL