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soon suppressed, do not suspend or interrupt the sovereignty of the Government. The power is there; all that is necessary is to exert it.

Sovereignty, independence, subjection, are permanent conditions, though the degree of permanence is incapable of precise definition. A revolted community seldom succeeds in establishing a Government, and achieving independence, at a blow; and some time must usually elapse before it can be safely and prudently recognized as independent by other nations. There is commonly a period of transition and struggle, until the expiration of which it is uncertain whether the old state of things will be re-established or no. During this period the sovereignty of the original Government over its refractory subjects has really ceased to exist, for power which cannot be exercised is not power: there remains only the hope or expectation that it will be restored, coupled in the minds of its adherents with the opinion that it ought to be restored-an opinion which is expressed by the phrase "Sovereignty de jure." A de jure Government is one which, in the opinion of the person using the phrase, ought to possess the powers of sovereignty, though at the time it may be deprived of them. A de facto Government is one which is really in possession of them, although the possession may be wrongful or precarious.

This is a period in which troublesome questions are likely to arise, both in respect of the administration of law within the country thus divided against itself and in respect of its international relations. For both municipal and international law assume, as they necessarily must, the existence in every State of a Government exercising a reasonable and substantial, though not an absolute, control within every part of its dominions; and on this basis all their rules are framed. But this assumption may be displaced in particular cases, just as the analogous assumption, common to all law whatsoever, that men are masters of their own actions, is displaced in

cases where the mind is unhinged and the understanding Chap. V. clouded by disease. Here is a Government, supposed to be sovereign, at war with those who are supposed to be its subjects; here is a body of people supposed to be subject to a Sovereign against whom they are fighting with all their might, and who is fighting with all his might against them. Such anomalies baffle the application of general rules; and, in order to provide for them without breaking in more than is absolutely necessary on the rule itself, nations and Governments have had recourse to shifts and expedients.

Thus it is clear-although courts of justice may shut their eyes to it-that the character of a subject or citizen of a State, and that of a public enemy of the same State, are really incompatible with one another. Yet it has been decided, as we have already seen, in the Supreme Court of the United States, not only that the same person may be both a citizen and a public enemy, but that this double character belonged in fact to all persons residing in the Confederate States, whether they had personally shared in the revolt or no. Their status, in the view of the law, was changed by the acts of others, in which they had not participated. A citizen is entitled to claim, for his property as well as his person, the protection of the law, and is liable to punishment for breaking the law; a public enemy, as such, is exempt from that liability, and has no claim to that protection. Loyal Southerners, resident in the South, though regarded by the law as citizens, were placed, as regards their property, out of the pale of its protection; disloyal Southerners, taken in arms against the United States, though regarded by the law as malefactors, were not punished as such, but detained and exchanged as prisoners of war. Further, the Federal Courts, whilst regarding the Governments of the revolted States as unlawful because in open rebellion, have recognized the fact that they were really Governments in a country where there was no other, and

Chap. V. have regarded their acts as valid, so far as those acts were unconnected with the rebellion.1

If it is found in practice that considerations, too powerful to be resisted, force such expedients and compromises as these on the authorities whose duty it is to compel obedience to the laws; it would certainly be very unreasonable to expect foreign nations, who are under no such obligation, to apply a more rigid rule. The practice of nations does not require this of them. As long as it is uncertain whether the new Government will succeed in establishing its independence, it is usual for them to abstain from official intercourse with it. But the existence of a large body of people yielding

1 In the case of Texas v. White (Wallace, vii, 700), the question arose whether a sale during the war, under the authority of the Texas Legislature, of certain United States' Bonds, transferable by delivery and belonging to the State of Texas, was valid. In the course of the judgment, delivered by Chief Justice Chase, the Court made the following observations:

"The Legislature of Texas, at the time of the repeal, constituted one of the Departments of a State Government established in hostility to the Constitution of the United States. It cannot be regarded, therefore, in the Courts of the United States as a lawful legislature, or its acts as lawful acts. And yet it is a historical fact that the Government of Texas, then in full control of the State, was its only actual Government; and certainly, if Texas had been a separate State and not one of the United States, the new Government, having displaced the regular authority, and having established itself in the customary seats of power and in the exercise of the ordinary functions of administration, would have constituted, in the strictest sense of the word, a de facto Government; and its acts, during the period of its existence as such, would be effectual, and in almost all respects valid. And to some extent, this is true of the actual Government of Texas, though unlawful and revolutionary as to the United States.

It

"It is not necessary to attempt any exact definitions within which the acts of such a State Government must be treated as valid or invalid. may be said, however, that Acts necessary to peace and good order among citizens, such for example as Acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding from an actual though unlawful

obedience to no recognized Government, and therefore Chap. V. formally shut out from the pale of public law, is in itself an evil, and may be a source of grave inconveniences. If such persons commit wrongful acts against the subjects of other States, to whom is complaint to be made, and who is responsible ? Their original Sovereign? But he is helpless; no redress can be obtained from him; and he would refuse, with justice, to be answerable for the misdeeds of those who are wholly beyond his control. Foreign nations, which must for awhile endure these inconveniences, have a right to protect themselves and their subjects against them in every reasonable way. In

Government, and that acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must in general be regarded as invalid and void."

Applying this test, the Court held the sale invalid as against the State of Texas.

In Thorington v. Smyth and Hartley, decided by the Supreme Court in December 1868, it was held that, where a contract had been made in Alabama during the war for the purchase of an estate, the price to be paid in Confederate notes, a Bill to enforce the vendor's lien for the unpaid purchase-money could be sustained, after the restoration of peace,

in a Court of the United States.

"It is familiar history," said Chief Justice Chase, "that early in 1861 the authorities of seven States, supported as was alleged by popular majorities, combined for the overthrow of the national Union, and for the establishment within its boundaries of a separate and independent Confederation. A governmental organization representing these States was established at Montgomery, in Alabama, first under a Provisional Constitution, and afterwards under a Constitution intended to be permanent. In the course of a few months four other States acceded to this Confederation, and the seat of the central authority was transferred to Richmond, in Virginia. It was by the central authority thus organized, and under its direction, that civil war was carried on upon a vast scale against the Government of the United States for more than four years. Its power was recognized as supreme in nearly the whole of the territory of the States confederated in insurrection. It was the actual Government of all the insurgent States, except those portions of them protected from its control by the presence of the armed forces of the national Government." The precise character of such a Government, the Court proceeded, cạn

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formal communications, exchanged as occasion may arise, with the persons who actually exercise control within the revolted community, are among the means of doing this. It is an expedient, however, which like most temporary makeshifts, is troublesome and imperfect. As to the contest itself, it is to foreign Powers a war in which they are neutral; the contending parties-two portions of a people with the whole of which they have been accustomed to live in friendship-are to them two belligerents, between whom they have to hold an even hand.

Neutrality, in wars which do not extend to the

hardly be defined with exactness. It was a de facto Government; but not "such a Government in its highest degree." This exists where a usurper has succeeded not only in establishing his power over particular localities, but in gaining actual possession of the whole authority of the Sovereign. It was analogous rather to cases in which a temporary but complete authority over part of a country is established by conquest. (United States v. Rice, Wheaton's R., iv, 253; Fleming v. Page, Howard's R., ix, 614.) The Government here " did not indeed originate in lawful acts of regular war, but it was not on that account less actual or less supreme. It is to be observed that the rights and obligations of a belligerent were conceded to it in its military character very soon after the war began, from motives of humanity and expediency, by the United States. The whole territory controlled by it was thereafter held to be enemies' territory, and the inhabitants of that territory were held to be in most respects enemies. To the extent, then, of actual supremacy, however gained, in all matters of government within its military lines, the power of the insurgent Government cannot be questioned. That supremacy did not justify acts of hostility to the United States. How far it should excuse them must be left to the lawful Government upon the re-establishment of its authority. But it made obedience to its authority in civil and local matters not only a necessity but a duty; without such obedience civil order was impossible." Hence, although notes of the Confederate Government were, as contracts, mere nullities, they must be regarded as having constituted, while the revolt lasted, the actual currency of the Confederate States, exactly as if they had been issued by a foreign Government temporarily occupying the territory of those States. Contracts, therefore, made in that currency ought to be enforced "after the restoration of peace," and the vendor was held entitled to recover "the actual value of the notes at the time and place of the contract in lawful money of the United States."