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


Enforcement or u VcnGor's Lien ia IA
Contract Entered into under the IIntr
Confederate Govrrnuncnt-'Thc Conrcd-
crate Dollar Md it's status tn The
Contract ana nftcr the War.
The following important opinion delivered
III The Supreme Court OF The Gnilc.l States on
Monday last. is OF 81 much interest that Southern
readers will hardly bc cnt with the tclcgrnphic
abstract already given in i'iiE NEWS We there
fore publish the decision in full, rs pronounced 10y
Chief Justice Chase:
TnORINGToS W.. SMITH ( uAKTLEY-oriStoS or
THE COURT BT CHIEF JUSTICE CHASE.
This is n bill in equity for the enforcement or Il
vendors lien.
ris no, denied that Smith& Hartley purchased
Thorington land, ar that they executed To him
their promssOry note for part vf the purchase
money, rs sci forlh in his hili: or tn,t If there
WAS nothing more i'll the case, hr would hc cni-
tied To Il decree for the amount OF the note ami
interest and for the sale Of The land to satisfy the
that the negotiation for The purchase OF the iand
took place, and that Tie note in controversy, pay
able One day afcr date, was una,lc at Monips6nic-
ry. i'll the Slate or AiahaMa where I'll the parties
resided in November. leil, 1T which time the
authority of the United states was excluded from
that portion of the state and the only currency
in usc consisted ur Confederate Treasury notes,
issucd ami put lii circulation hy persons cXcrcis-
Ing the ruling power OF The States in rebellion,
known rs the Confederate government.
II was also insisted that the land purchased
lawful money; that the contract price was forty
five thousand dollars; that ihls price, Icy The
aerae Notes; H !G s Ms se y o! "S @ m oS nS,
were actually paid In these notes; ai'l that the
note given for tile remaining len thousand dollars
was to lie discharged in the same manner; ana il
Is claimed on this state Of Gcts, that the vendor
h entitled to no relief in conrt OF the United
States, ana this claim WAS susiaincin tie court
below, and the hill WAS dismissed. Tie questions
before us on appeal are these: First, can 4 con-
tract for the payment of Confederate notes, made
within the So-callcd Confederate States. bc en-
forced nj all in the courts OF the United S;atys:
Second, can evidence bc received 10 prove TINT u
promise expressed To nc for The payment Of dol
lars was In fact, and for the payment OF any other
than lawful dollars Of The united States? Docs the
evidence In the record establish the fact that the
note for ten thousand dollars was To he paid, 10y
agreement OF the parties, in Confederate notes?
The first question is by no means free from DIM
Guilty. II cannot he questioned that the C0nfctIc.
lawful attempt to overthrow the Government OF
the United States 10y insurrcctiunary force. Nor
Is 1t II doubtful principle Of law that no contract
made In all Of such an attempt can DC enforced
through the courts Of the country whose govern
ncnt il thus assailed Hut was the contract ur
the parties to thts suit contract OF that charac
tcr-c.ln II lie fairly described as contrc in aid
Of the rebclion? In examining this question, the
made must he considered. II Is familiar history
that, early in 1861 the authorities Of seven States,
supported, MS was alleged, by popular miyori'icSS
Union, and for the establishment within its
boundaries, OF separate and independent con
scnting these States, was established NJ Mont
gomery, Ia Alabama, first under Il provisional
onslitntion and afterwards under :; cousiitu-
lion intended to bc permanent. In The course
of Il few months four other States accclcd to this
ihority was iransierrcd to Richmon, in Virginia.
II was by the central authority thus organized,
and under lis direction, THAT the civil war was
carried upon vast scale against the Govern
mcnt OF the United States for more than four
years. It's power was rccognizcd as surrchlc i'll
nearly the whole OF tctcrritory OF the STATES con.
federated II WAS the actual government Of all
the insurgcnt States, except inosc portions or
them protected from It's control by the presence
OF the armed forces Of the national government.
What was the precise character OF ihis govern
se sn Il w Of i i aen to
hs given may M not imrro616y be found to rs r.
WILL we think, conduct us to n conclusion: 4 81,
eien!ly accurate. There are several degrees OF
what Is called dr .htct0 government. Such Il gov
ernmcnt, in its highest degrees, assumes char
ac,cr very closely resembling that OF n lawful
government. This Is when the usurping govern
mcnt eNpcls the regular authorities from their
customary seats and functions, and est stahlishcs
Itself IN their places, and 50 becomes the actual
government OF = country. The distinguishing
characteristics OF such a government is that :ld-
dc jaie do not ucur the penalties Of treason; and,
under certain Limitations, obligations assumed
by II In behalf OF the country or otherwise WILL In
general, he respected by the government a" jurr
when restored.
Examples Of this description of government de
.ficio are found in English history. The statute
H. Henry VII g. !. Qiri. stat. al Iargc,) relieves
from penalties for treason all persons wl!o in de.
fence Of the king for the time bcng, wage war
against those WHO endeavor TO subycrt his author
ity by force of arms, though warranted in so
doing by The lawful monarch, Il ILL., Comm, I'D
I'nt This is where the lsurlcr obtains actual pos-
session of The royal authority Of ihe knG,om;
not when lie has succeeded only in establishing
his power over particular localities. Icing in
suc possession, allegiance is due to him :S king
dc .hitF0.
Another example may lie found In the govern.
ment ol England under The Commonwealth, fist
hy Parliament and afterwards by Cromwell, ~
Protector. IL ~as not, in the contemplation of
law, government de jnpe, hut il WAS II govern.
men, q" .firi" in The absolute sense. |; mai.
laws treaties and cOrGncs,s, wlich remained he
restoration. The better opinion is thai acts done
IN Ul'cdlchcc 10 this government could NOT In
Justly regarded rs reasonable, ih0ngh i'll hostility
10 The King Il" iHfr. Such :cts were protected
Tram criminal prosecution hy The spirit ii not the
letter. of The statute of ilcnry The Seventh. IL
was held Otherwise by the judges by whu!, sir
Henry Naiic wS Tried for treason. e. State TriaiS
llo,) in the year following Tie restoration. Gui
such u Judgment In such time has .lc author
hy.
1t iEvery certain iat thc Confederate Govern.
mcnt was never acknowledged 10y the United
States rs dr .hictO government in this sense,
nor was IL ackno Ylrdsc,l ui such hy foreign pow
crs. No treaties were made by it. No obligation
oi national character were created ly IL b.nl-
ing, after IFS dissolution, OH the Slate. which II
represented or on the national government. From
very early period Of The war to lis close II was
regarded as simply the military representative Of
me iiisircciion against the authority vi the
United States.
lut there Is another description OF govern
nent, called by publicists government ae Gicio.
but which might, perhaps, he more aptly dcis0ni-
mated government Of paramount force. lis
distinguishing characteristic are ~ tla: It's cXiS-
lsiclicc Is maintained by active military power
within lhe territories AMI against The right ful
authority for established and lawful government;
and t2l thu; while H. exists IL necessarily 10
0iIcycd i'll civil matters by private citizens who,
10y acls OF obedience rendered In submission Ia
siith force, do not become responsible as wrong
docrS for these acts, though moi warranted by The
laws Of the rightful government. Actual govern
*
differing greatly In extent and conditions; they
are usually administered directly by military a,i-
ihOrity; hut they may he administered also 10y
civil authority, supported more or less by military
force.
one example OF this sort Of government Is
found in the case OF Castinc OF Maine reduced TO
u British posscssion uhc war Of 1922 From The
Isl OF September, 1874, TO the ratification uf tile
treaty OF peace in 1915, according tO the Judgment
OF the court, In the United States W. Rice a
wheat, 2hil "the british Government exercised
~. a1i civil nnd military authority over The place.