The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1872-12-02
liffcrent rule be established with reference


different rule be established with reference
to this executor? Had he refused to pay
over the money, every one familiar With the
history of that period and the temper Of the
public mind knows well that the whole
power Of the courts and the law would have
| been eXerted against him to enforce ODE.
dicnce. What was he TO do under such cir
cumstauces? How FAR was he to 90 in his
resistance to- the aw9 Was he to submit to
fIne and Imprisonment? ? Or would the threat
Of an attachment for contempt have excused
him in surrendering the funds? / think the
executor was we'll justified In refusing to in
| cur those hazards-he wisely declined con-
test with a Government which the whale
naval and military power of the United
States could not suhdue under four years.
We are not disposed, however, to rest
the discussion Of this case upon this
narrow and restricted view. 1t may be
placed upon higher ground. In
"Walker us. Christian" q Grat, 301, Judge
| Moncure, speaking for tue court, said "It
"iS immatera to inquire whether the Confed-
"erate Government was de jure or de .fdcto
"only, and If de .fncto only, for what pur-
"poSes and to what extent it was a de .facto
government; that 1t was such govern
"mcnt, to a considerable extent andfor many
"purpo>es, If not entirely and for all pur-
"poses, cannot be denied" It is said, how
ever by an eminent Federal Judge, that the
Confederate Government did not possess all
the attributes Of government de facto in
the highest degree. The reason he assigns
is, that it never expelled the regular authori-
ties from their seats and functions; it never
held the national capital: it never asserted
any authority to represent the nation. The
conclusion he adduces, therefore, is that it
must be regarded as an unlawful organiza-
ton, and all its acts and proceedings for the
confiscation of property of loyal citizens must
be treated ase absolutely null and void.
Now, the test here suggested may be
a correct one where applied to people har.
ing but one central, consolidated govern
ment. In such States or communities, as u
general thing, the object of every revolution
ary movement is to overthrow and eXpei the
existing government, 70 occupy the capital,
| and give laws to the nation. So long as the Or
ganization falls short of this result it may be
| question whether it possesses the attributes
of de .fdcto government in the highest de-
gree. However this may be, the rest sug-
ge>ted cannot in justice be applied to the
Confederate States. They did not attempt
| or desire to occupy the national capital as
| their seat Of government, nor TO give laws 10
the people of the United States. The whole
scope and object of the movement was a
separation from the northern States, the
formation of an independent confederation,
the establishment of new government over
| their own people within their own terrific
rial limits and jurisdiction. How eminently
successful this struggle was, for four years
at least, in the attainment of these objects
| let the Supreme Court of the United States
answer:
| In Mauran rs. The Insurance Co., 6 Wall,
| p. l, the question was presented whether q
northern insurance company was liable Tor
the value of vessel captured by the naval
forces of the Confederate Government. MIR.
| Justice Nelson. in discussing the principles
governing the rights and liabilities OF under
writer's in such cases, used the following
| language: "Still it cannot be denied but that
| "by the use of these unlawful and unconst-
"tlltional means government was erected
! "grcater in territory than many Of the old
governments Of Europe, complete in the
| 4" organization Of all lis parts, containing
| within its limits more than eleven millions
| "of people. and of sufficient resources in
"mcn and money 10 carry on civil war OF
uneXampled dmensions; and during oil
(which time the exercise of many bclliger-
| cent rights were either conceded to ii or
"were acquiesced in by the supreme gov
"ernment; such as the treatment Of cap
"tives, both on land and sea, as prison.
| ..ers of war, the exchange of prisoners,
"their vessels captured recognized rs prizes
'sof war and dealt with accordingly, their
property seized OH land referred to Judicial
"tribuulls for adjudication, their ports block
| 1.o1, nt,ntn lktI
equitable force, and duly notified to neutral
"powerS, the same as i'll open and public
"war." Again, elsewhere, he declares: 1--WE
| "rcfer to the conduct Of the war us matter
"of fact for the purpose Of showing that the
| so-caled Confederate States were in the
| possession of many of the highest attri-
butes of government, sufficiently so to be
"rcgarded as the ruling or supreme power OF
1.-THE country, and hence captures under its
commission were among those excepted
"out Of the policy by the warranty OF the
Ensured" All will acknowledge the force
of this description, the accuracy and truth Of
the picture. If the laws and mandates of a
| government thus organized and powerful
| will not protect those who were subject to its
jurisdiction and yielded it obedience it is
idle to say that the citizens or subjects of a
mere dc .facto government in any case can
claim exemption under its authority. In
Thorington Us. Smyth, Chcf-Justice Chase
expresses the opinion that the Confederate
Government may be classed among the 60
yernmentS of which Castine and Tampico
are examples. Let us see, then, what was de-
cided with reference to Castine. 1t WAS an
American port, captured by British forces in
1914. and held in possession of British al-
thortics until the treaty of peace IN lSlo.
| During that period foreign goods were re-
ceived into the port under regulations
established by the enemy. Some OF these
goods remained in Castine until after the
close of the war. The United States Co
yernment then asserted right to levy I'LL
posts and duties upon them. The Supreme
Court of the United States decided that
this claim could not be sustained; that by
the conquest and military occupation OF Cas-
tine the enemy acquired that firm pos
session which enabled him to exercise
the fullest rights Of sovereignty. BY
the surrender the inhabitants passed
under a temporary allegiance to the
British Government, and were bound by such
laws, and such only, as it choosed TO recoS--
nize and enforce. Now, If the learned
Chicf.Justice be correct in likening the Con-
federate Government to the military occupa-
tion of Castine, it would seem that the same
| results must follow in both cases. The law
| of paramount force, which protected the cltl-
zen against the claim of the United States,
would also protect the bailee Or fiduclary
who had surrendered the fund in his hands
70 the supreme authority of the country. In
such case it does not matter that such au-
10. .,r Il md