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

The following important opinion delivered
in the Supreme Court OF the United States on
Monday last, is OF so much interest that Southern
readers will hardly be content with the telegraphic
abstract already given in THE NEWS. We there
fore publish the decision in full, as pronounced by
Chief Justice Chase:
THoRINGToN vs. SMITH HARTLEY-oPINIoN OF
THE COURT BY CHIEF JUSTICE CHASE.
This is bill in equity for the enforcement of a
vendors lien.
tits not denied that Smith & Hartley purchased
Thorington's land or that they executed to him
their promissory note for part OF the purchase
money, as set forth in his bill; or tnat, II there
was nothing more i'll the case he would be enti-
tied to decree for the amount OF. the note and
interest and for the sale of the land to satisfy the
debt. But it is insisted, by the way OF defence,
that the negotiation for the purchase OF the land
took place, and that the note in controversy pay
able one day after date, was made at Montgome-
ry In the State Of Alabama, where ell the parties
resided in November, 1864, at which time tne
authority Of the United States was excluded from
that portion OF the State, and the only currency
in use consisted OF Confederate Treasury notes,
issued and put in circulation by persons eXercis-
ing the ruling power OF the States IN reDenioh,
known as 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 1orty-
five thousand dollars; that this price, Dy the
agreement OF the parties, was to he paid In Con-
federate notes. that thirty-hve thousand dollars
were actually paid in these notes; anu tllat the
note given for the remaining ten thousand dollars
was to be discharged in the same manner; and 1t
Is claimed on this state Of facts that the vendor
is entitled to no relief In court OF the Unlted
States and this claim was sustained in the court
below, and the bill was dismissed. The questions
before us on appeal are IneSe rs oaea Ta ade
during the late rebellion, between parties residing
within the so-called Confederate States, be en-
forced at al! in the courts OF the United States
Second can evidence be received to prove that q
promise expressed to be for the payment Of dol
lars was in fact and for the payment OF any otner
than lawful dollars Of the United states? Does the
evidence IN the record establish the fact that the
note for ten thousand dollars was to be paid, by
agreement OF the parties, in Confederate notes!
The first question is by no means free from dilli-
Guilty. II cannot be questioned that the Confede-
rate notes were issued i'll iurtnerance OF an un-
lawful attempt to overthrow the Government OF
the United States by inSurrectonary force. NOR
is it doubtful principle OF law that no contracI
made IN aid OF such an attempt can DC enforced
through the courts OF the country whose govern
ment is thus assalled But was the contract OF
the parties to this suit contract OF that cnarac.
ter-can 1t be fairly described as acontract IN ald
OF the rebelon9 In examining this question, the
state Of that part Of the country in which 1t was
made must be considered. 1t Is familiar history
that early in 1861 the authorities OF seven states
supported, as was alleged, by popular maJoritles
Union, and for the establishment within Its
boundaries, OF a separate and Independent con-
federation. governmental organization, repre-
scntlng these States, was established at MONT.
gomery, in Alabama first under provisional
Constitution, and afterwards under constftu-
tiOn intended to be permanent. In the course
of q few months four other States acceded TO thls
confederation and the seat OF tine central au-
thority WAS transferred to Richmond in Virginia.
1t was by the central authority thus organized,
and under its direction, that the civil war was
carried on upon vast scale against the Govern
ment Of the United States Tor more than lour
years. Its power was recognized as supreme In
nearly the whole OF the territory OF the States con-
federated. Il was the actual government OF all
the insurgent States Xcept those portions OF
them protected from lte control by the presence
of the armed forces Of the national government
What was the precise character OF this govern
meut In contemplation OF Law II Is difficult 70
define 1t with exactness. ANY dennltion liat may
be given may not improbably be found 10 require
limitation and qualification. But the general
principles OF law relating to de Jdct0 government
WILL we think, conduct as to CONCLUSION sun,
cientiy accurate. There are several degrees Oh
what is called de .IuctO government. Sach gov
ernment, in its highest degrees, assumes cnar,
acter very closely resembling that OF lawful
government. This is when the usurplng govern
ment expels the regular authortleS ironl tIeir
customary seats and functions, and establishes
itself in their places, and so becomes the actual
government OF a country. The distinguishing
characteristics of such government Is tNat ad-
IL
de jlre do not incur the penalties Of treason; and
under certain limitations, Obligations assuined
by it in behalf OF the country or otherwise WILL IN
general, be respected by the government de J'ne
when restored.
Examples Of this description Of government de
6acto are found in English history. The statute
H. Henry VII, C. !. brit. STAT at Largel reileVes
from penalties for treason oil persons VINO, In de'
fence Of the king for the time being, wage war
against those who endeavor to subvert his author
ity by force OF arms, though warranted in so
doing by the lawful monarch, a Bl. Comm, ~
But this is where the usurper obtains actual pos
session OF the royal authority OF the kinSaoll: !:
not when he has succeeded only in establishing
his power over particular localities. Bcng IN
such possession, allegiance IS Que 10 nm rs king
6e hdctO.
ment OF England under the Commonwealth, first
by Parliament and afterwards by Cromwell, as
Protector 1t was not, IN the contemplation oi
law, q government de Jdfe, but 1t was govern
ment de ntctO in the absolute sense. IL made
laws, treaties and conquesls, which remained the
laws, treaties and conqueStS OF England altcr tnc
restoration. The better opinion is that acts done
in obedience to this government could ,,,t. not DC
Justly regarded as reasonable though Ill hostility
TO the king de jttIe. Such acts were protected
from criminal prosecution by the spirit, II NOT thc
letter, of the statute of Henry the Seventh. IL
was held otherwise by the judges by wh0in SIR
Henry Vanc was tried for treason Is state Trials,
ll9,) In the year following the restoration. But
such o Judgment in such time has little author
ity. ,,,-,.. coor,
mcnt was never acknowledged by the United
States as q de .rIctO government i'll this sense,
nor was it acknowledged Us such 10y foreign pow
ers. No treaties were made by 1t. No obligation
OF national character were created Dy IL Dinq-
lug, after its dissolution, on the States whlch II
represented or on the national government. From
very early period Of the war to its close II was
regarded as simply the military representative or
the instruction against the authority OF the
United States.
ment, called by publiclsts government de Jdcto,
but which might, perhaps. be more aptly denom-
mated a. government of paramount force Its
distinguishing characteristic are ~ that It's eXls-
istence is maintained by active military power
within the territories and against the rlghtiul
authority for established and lawful government;
and t2) that while it exists it must necessarily be
obeyed in civil matters by private citizens, who,
by acts OF obedience rendered In submission TO
such force do not become responsible as wrong
doers for these acts, though not warranted by the
laws OF the rightful government. Actual govern
ments of this sort are established over districts
differing greatly in extent and conditions; they
are usually administered directly by military au-
thorty; but they may be administered also by
civil authority, supported more or less by military
force.
One example of this sort Of government is
found in the case of Castine Of Maine, reduced to
British possession (the war OF 1922 From the
1st OF September, 1914, to the ratification OF the
treaty of peace in 1916, according to the Judgment
OF tile court In the United States vs.. Rice Il
Wheat, 253,) "the British Government exercised
all civil and military authority over the place.
The authority of the United States over the terri
tory was suspended, and the laws or the United
States could no longer be rlghtluly enforced
there or bc obligatory upon the inhabitants VINO
remained and submitted to the conqucror. BY
the surrender the inhabitants passed under q
temporary allegiance to the British Government,