The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1879-05-24
A GOLDEN OPINION.
THE TREASURES OF THE EVACUATION
JUDGE HUGHEs's INSTRUCTIONS TO THE
JURY IN THE CASE OF THE UNITED
STATES AGAINST EX-GOVERNOR SMITH
AND oTHERs-ARGUMENT CoMAENCED.


AND oTHERs-ARGUMENT COMMENCED.
In the case Of the United States against
Ex-Governor Smith, now on trial in the
United States Court--Judge Hughes pre-
siding-Mr. l.. L. Lewis is counsel for
plaintiff, and Attorney General Field, r.
H. Stiles, and Judge FL. W. Thomas for
defendant. :r .....s
Yesterday morning Ex-Governor Smith
concluded his testimony. Judge Thomas,
Colonel George Wythe Munford, and Col
onel S. Bassett French were also examined
for defendants.
The United States sues to recover of Gov
ernor Smith $4,000 paid to him in gold from
the State Treasury on the night OF the evac-
uation. =, .....,....4:. .-... 4: .,-zf
After debate on instructions, the Judge
gave the following statement and instruc-
tions., The Judge said:
The people and State OF Virginia remain
the people and State OF Virginia under all
governments that may. be. in power over
them. The government at any time over
them may be legal or II may be illegal. :,
The government which exercised power
overtt greater part or Virginia in the. pc
riod Of 1861 TO 1865 must now be considered
only de facto or insurgent government;
| for, by the arbitrament OF war, it has been
determined to have been so. The opinions
OF different classes Of people as to the right
| fu!ness or wrongfulness Of that decision
cannot affect its finality or validity. There
is no appeal from it.
| The government which held sway in Vir-
| ginia from 1861 to 1865, and was overthrown
| on the Sd Of April, 1865. was not, therefore,
legal government after, and as result OF
| protracted war. 1t was overthroWn and
! conquered; and in the opinion OF the Court
Whatever property belonged particularly to
that conquered government, As such, and all
claims it held against
INDIVIDUALS, OR DEBTS ..
due to it from individuals, became the pro-
perty of the conqueriDg power-to wit, tue
| United States OF America.
Such property and claims Of that govern
ment, as such, as distinguished from pro-
perty and claims belonging to Virginia as a
State (Which latter did not pass, passed to
| the United States.
The question OF law here is whether or
not the money, which is the subject Of these
suits, so far rs received by the persons sued
as advances OF salaries for services not rem
dered, can be recovered by the United
States: and my decision rendered on de-
murrer was and is that the United States
may recover them. The question Of fact is
how much Of these moneys were advances
for salaries never earned, and are to be ac-
counted for as moneys OF the conqnering
power had ard received by the defend dants
! to the use Of the United States. The jury
are to pass upon the latter fact.
AT THE FoRMER TRIAL
OF this case / gave the following instruc-
| ton:
"The question for the jury is very SIM
pie one. The decision of this Court on the
demurrer was that il tue defendant owed
the Confederate Government OF Virginia
on the 9th OF April, 1865, sum Of money
which that government could claim OF right
and recover by suit against him, then the
| United States may recover that. sum OF
money in this suit, the United States hav-
ing succeeded by conquest to oil the rights
| of the then State government OF Virginia.
"The question for you, therefore, is sim
ply whether or not the defendant owed the
Confederate Government OF Virginia, or
the 9th Of April, 1865, q sum Of money moi
exceeding $1,000, which that government
was entitled TO recover by suit"
But at that trial the question OF the time
during, which services had been rendered
was not raised, and the foregoing instruc
ton virtually allowed credit for only the
short period Of week between the I'd ant
9th Of April, 1865
| AT THIS TRIAL.
the Court has been asked to allow for an ad
diGOnal period Of time. 1t is claimed tha
the Governor of the then government, after
its overthrow, was still bound, and was au
thorized by public law, to continue to eXer
else such of his functions as were propel
for protecting society from violence an(
preserving its peace and good order. A:
this is an action OF dSSumpsit in which tht
United States seeks only TO recover what l:
due eI eQuo ct bono on principles OF equity
and fair-dealng for such services as were
rendered after April 9th until his function:
in that character finally ceased,
-. THIS cLAN, .'..s..
l think, ought to be allowed; anC
that makes it necessary to fix the time
at which such services finally ceased. The
!, date has been legally determined. By ar
executive order Of President johnson, bear
ing date the 9th day Of May, 1865, it was
declared formally that call acts and pro
ceedings'of the political, military, and clvi
organizations which have been in state oil
instruction and rebellion within the State
OF Virginia against the authority and laws
of the United States, and Of which Jefferson
Davis, John ,,Letcher, and William Smitt
.. were late the respective chiefs, are declared
null and void" and the further exercise O
such authority and all such proceeding
were forbidden. tE
IF THE JURY i
believe from the evidence that the defendan
was de tacto Governor OF the de facto gov
/: ernment Of Virginia, which held authorit,
in the State for some time previous to April
1865, and that he was acting in the perform
ance OF his duties as such Governor on th
I'd day of April, 1865, when he received th'
$4,000 in. gold which is the subject Of thi
suit, the Court instructs them that it wa
the duty OF the defendant after that date a
such Governor to continue in the perform
ance OF his duties over the territory OF Nir
ginia for the necessary purposes OF civi
goyernment-to wit, the preservation O
life and property, peace and order, and th'
due administration OF the laws OF civil so
ciety-until such territory as he was in at any
time fell under the sway Of the conquerins
power-to wit, on the 9th day Of May
1S65-proyided he gave no aid in doing 81
to the enemies OF the United States after 9tl
OF April, 1876.
"THRY ARE FURTHER INSTRUCTED
that for so long time as the defendant wa
engaged as abeVe described he is entitled t
a pro rata allowance OF salary, and is alst
entitled to such proper disbursements as HI
made during the said period OF such ser
vice, all to be credited upon the amoun
| sued for" ~. 2ysz, j
The argument was opened by United
| A yghn uag fn1lotyaT