Syllabus.
1. The word State describes sometimes a people or community
of individuals united more or less closely in political relations, inhabiting
temporarily or permanently the same country; often it denotes only the country,
or territorial region, inhabited by such a community; not unfrequently it is
applied to the government under which the people live; at other times it
represents the combined idea of people, territory, and government.
2. In
the
Constitution the term State most frequently expresses the combined idea
just noticed, of people, territory, and government. A State, in the ordinary
sense of the Constitution, is a political community of free citizens, occupying
a territory of defined boundaries, and organized under a government sanctioned
and limited by a written constitution, and established by the consent of the
governed.
3. But the term is also used to express the idea of a people
or political community, as distinguished from the government. In this sense it
is used in the clause which provides that the United States shall guarantee to
every State in the Union a republican form of government, and shall protect
each of them against invasion.
4. The Union of the States never was a purely artificial and
arbitrary relation. It began among the Colonies, and grew out of common origin,
mutual sympathies, kindred principles, similar interests, and geographical
relations. It was confirmed and strengthened by the necessities of war, and
received definite form, and character, and sanction, from
the
Articles of Confederation. By these the Union was solemnly declared to “be
perpetual.” And, when these Articles were found to be inadequate to the
exigencies of the country, the Constitution, was ordained “to form a more
perfect Union.”
5. But the perpetuity and indissolubility of the Union by no
means implies the loss of distinct and individual existence, or of the right of
self-government by the States. On the contrary, it may be not unreasonably
said, that the preservation of the States, and the maintenance of their governments,
are as much within the design and care of the Constitution, as the preservation
of the Union and the maintenance of the National government. The Constitution,
in all its provisions, looks to an indestructible Union, composed of
indestructible States.
6. When Texas became one of the United States, she entered
into an indissoluble relation. The union between Texas and the other States was
as complete, as perpetual, and as indissoluble as the union between the
original States. There was no place for reconsideration or revocation, except
through revolution or through consent of the States.
7. Considered as transactions under the Constitution,
the
ordinance of secession, adopted by the convention, and ratified by a
majority of the citizens of Texas, and all the acts of her legislature intended
to give effect to that ordinance, were absolutely null. They were utterly
without operation in law. The State did not cease to be a State, nor her
citizens to be citizens of the Union.
8. But in order to the exercise, by a State, of the right to
sue in this court, there needs to be a State government, competent to represent
the State in its relations with the National government, so far at least as the
institution and prosecution of a suit is concerned.
9. While Texas was controlled by a government hostile to the
United States, and in affiliation with a hostile confederation, waging war upon
the United States, no suit, instituted in her name, could be maintained in this
court. It was necessary that the government and the people of the State should
be restored to peaceful relations to the United States, under the Constitution,
before such a suit could be prosecuted.
10. Authority to suppress rebellion is found in the power to
suppress insurrection and carry on war; and authority to provide for the
restoration of State governments, under the Constitution, when subverted and
overthrown, is derived from the obligation of the United States to guarantee to
every State in the Union a republican form of government. The latter, indeed,
in the case of a rebellion which involves the government of a State, and, for
the time, excludes the National authority from its limits, seems to be a necessary
complement to the other.
11. When slavery was abolished, the new freemen necessarily
became part of the people; and the people still constituted the State: for
States, like individuals, retain their identity, though changed, to some
extent, in their constituent elements. And it was he State, thus constituted,
which was now entitled to the benefit of the constitutional guaranty.
12. In the exercise of the power conferred by the guaranty
clause, as in the exercise of every other constitutional power, a discretion in
the choice of means is necessarily allowed. It is essential only that the means
must be necessary and proper for carrying into execution the power conferred,
through the restoration of the State to its constitutional relations, under a
republican form of government, and that no acts be done, and no authority
exerted, which is either prohibited or unsanctioned by the Constitution.
13. So long as the war continued, it cannot be denied that
the President might institute temporary government within insurgent districts,
occupied by the National forces, or take provisional measures, in any State,
for the restoration of State government faithful to the Union, employing,
however, in such efforts, only such means and agents as were authorized by
constitutional laws. But, the power to carry into effect the clause of guaranty
is primarily a legislative power, and resides in Congress, though necessarily
limited to cases where the rightful government is subverted by revolutionary
violence, or in imminent danger of being overthrown by an opposing government,
set up by force within the State.
14. The several executives of Texas, partially, at least,
reorganized under the authority of the President and of Congress, having
sanctioned this suit, the necessary conclusion is, that it was instituted and
is prosecuted by competent authority.
15. Public property of a State, alienated during rebellion
by an usurping State government for the purpose of carrying on war against the
United States, may be reclaimed by a restored State government, organized in
allegiance to the Union, for the benefit of the State.
16. Exact definitions, within which the acts of a State
government, organized in hostility to the Constitution and government of the
United States, must be treated as valid or invalid, need not be attempted. It
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 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.
17. Purchasers of United States bonds issued payable to the
State of Texas or bearer, alienated during rebellion by the insurgent
government, and acquired after the date at which the bonds became redeemable,
are affected with notice of defect of title in the seller.
Statement of the
case.
ON original bill.
The Constitution ordains that the judicial power of the
United States shall extend to certain cases, and among them “to controversies
between a State and citizens of another State; . . . and between a
State, or the citizens thereof, and foreign States, citizens or
subjects.” It ordains further, that in cases in which “a State” shall be a
party, the Supreme Court shall have original jurisdiction.
With these provisions in force as fundamental law, Texas,
entitling herself “the State of Texas, one of the United States of America,”
filed, on the 15th of February, 1867, an original bill against different
persons; White and Chiles, one Hardenberg, a certain firm, Birch, Murray &
Co., and some others,1 citizens of New York and other States;
praying an injunction against their asking or receiving payment from the United
States of certain bonds of the Federal government, known as Texan indemnity
bonds; and that the bonds might be delivered up to the complainant, and for
other and further relief.
The case was this:
In 1851 the United States issued its bonds—five thousand
bonds for $1000 each, and numbered successively from No. 1 to No. 5000, and
thus making the sum of $5,000,000—to the State of Texas, in arrangement of
certain boundary claims made by that State. The bonds, which were dated January
1st, 1851, were coupon bonds, payable, by their terms, to the State of Texas or
bearer, with interest at 5 per cent. semi-annually, and “redeemable after the 31st day
of December, 1864.” Each bond contained a statement on its face that the debt
was authorized by act of Congress, and was “transferable on delivery,” and to each were
attached six month coupons, extending to December 31, 1864.2
In pursuance of an act of the legislature of Texas, the
controller of public accounts of the State was authorized to go to Washington,
and to receive there the bonds; the statute making it his duty to deposit them,
when received, in the treasury of the State of Texas, to be disposed of “as may be provided by law;” and
enacting further, that no bond, issued as aforesaid and payable to bearer,
should be “available in the hands of any holder until the same shall
have been indorsed, in the city of Austin, by the governor of the State of
Texas.”
Most of the bonds were indorsed and sold according to law,
and paid on presentation by the United States prior to 1860. A part of them,
however,—appropriated by act of legislature as a school fund—were still in the
treasury of Texas, in January, 1861, when the late Southern rebellion broke
out.
The part which Texas took in that event, and the position in
which the close of it left her, are necessary to be here adverted to.
At the time of that outbreak, Texas was confessedly one of
the United States of America; having a State constitution in accordance with
that of the United States, and represented by senators and representatives in
the Congress at Washington. In January, 1861, a call for a convention of the
people of the State was issued, signed by sixty-one individuals. The call was
without authority and revolutionary. Under it delegates were elected from some
sections of the State, whilst in others no vote was taken. These delegates
assembled in State convention, and on the 1st of February, 1861, the convention
adopted an ordinance “to dissolve
the union between the State of Texas and the other States, united under the
compact styled, ‘the Constitution of the United States of America.’”
The ordinance contained a provision requiring it to be submitted to
the people of Texas, for ratification or rejection by the qualified voters
thereof, on the 23d of February, 1861. The legislature of the State, convened
in extra session, on the 22d of January, 1861, passed an act ratifying the election
of the delegates, chosen in the irregular manner above mentioned, to the
convention. The ordinance of secession submitted to the people was adopted by a
vote of 34,794 against 11,235. The convention, which had adjourned immediately
on passing the ordinance, reassembled. On the 4th of March, 1861, it declared
that the ordinance of secession had been ratified by the people, and that Texas
had withdrawn from the union of the States under the Federal Constitution. It
also passed a resolution requiring the officers of the State government to take
an oath to support the provisional government of the Confederate States, and
providing, that if “any officer refused to take such oath, in the manner and
within the time prescribed, his office should be deemed vacant, and the same
filled as though he were dead.” On the 16th of March, the convention passed an
ordinance, declaring, that whereas the governor and the secretary of state had
refused or omitted to take the oath prescribed, their offices were vacant; that
the lieutenant-governor should exercise the authority and perform the duties
appertaining to the office of governor, and that the deposed officers should
deliver to their successors in office the great seal of the State, and all
papers, archives, and property in their possession belonging or appertaining to
the State. The convention further assumed to exercise and administer the
political power and authority of the State.
Thus was established the rebel government of Texas.
The senators and representatives of the State in Congress
now withdrew from that body at Washington. Delegates were sent to the Congress
of the so-called Confederate States at Montgomery, Alabama, and electors for a
president and vice-president of these States appointed. War having become
necessary to complete the purposed destruction by the South of the Federal
government, Texas joined the other Southern States, and made war upon the
United States, whose authority was now recognized in no manner within her
borders. The oath of allegiance of all persons exercising public functions was
to both the State of Texas, and to the Confederate States of America; and no
officer of any kind representing the United States was within the limits of the
State except military officers, who had been made prisoners. Such was and had
been for several months the condition of things in the beginning of 1862.
On the 11th of January, of that year, the legislature of the
usurping government of Texas passed an act—“to provide arms and ammunition,
and for the manufacture of arms and ordnance for the military defences of the
State.” And by it created a “military board,” to carry out the purpose
indicated in the title. Under the authority of this act, military forces were
organized.
On the same day the legislature passed a further act,
entitied “An act to provide funds for military purposes,” and therein
directed the board, which it had previously organized, “to dispose of any
bonds and coupons which may be in the treasury on any account, and use such
funds or their proceeds for the defence 6f the State;” and passed an
additional act repealing the which made an indorsement of the bonds by the
governor of Texas necessary to make them available in the hands of the holder.
Under these acts, the military board, on the 12th January,
1865, a date at which the success of the Federal arms seemed probable, agreed
to sell to White & Chiles one hundred and thirty-five of these
bonds, then in the treasury of Texas, and seventy-six others deposited with
certain bankers in England, in payment for which White & Chiles were to
deliver to the board a large quantity of cotton cards and medicines. The former
bonds were delivered to White & Chiles on the 15th March following, none
of them being indorsed by any governor of Texas.
It appeared that in February, 1862, after the rebellion had
broken out, it was made known to the Secretary of the Treasury of the United
States, in writing, by the Hon. G. W. Paschal, of Texas, who had remained
constant to the Union, that an effort would be made by the rebel authorities of
Texas to use the bonds remaining in the treasury in aid of the rebellion; and
that they could be identified, because all that had been circulated before the
war were indorsed by different governors of Texas. The Secretary of the
Treasury acted on this information, and refused in general to pay bonds that
had not been indorsed. On the 4th of October, 1865, Mr. Paschal, as agent of
the State of Texas, caused to appear in the money report and editorial of the
New York Herald, a notice of the transaction between the rebel government of
Texas and White & Chiles, and a statement that the treasury of the United
States would not pay the bonds transferred to them by such usurping government.
On the 10th October, 1865, the provisional governor of the State published in
the New York Tribune, a “Caution to
the Public,” in which he recited that the rebel government of
Texas had, under a pretended contract, transferred to White & Chiles “one
hundred and thirty-five United States Texan indemnity bonds, issued January 1,
1851, payable in fourteen-years, of the denomination of $1000 each, and coupons
attached thereto to the amount of $1287.50, amounting in the aggregate, bonds
and coupons, to the sum of $156,287.50.”
His caution did not specify, however, any particular bonds
by number. The caution went on to say that the transfer was a conspiracy
between the rebel governor and White & Chiles to rob the State treasury,
that White & Chiles had never paid the State one farthing, that they had
fled the State, and that these facts had been made known to the Secretary of
the Treasury of the United States. And “a protest was filed with him by Mr.
Paschal, agent of the State of Texas, against the payment of the said bonds and
coupons unless presented for payment by proper authority.” The substance of
this notice, it was testified, was published in money articles of many of the
various newspapers of about that date, and that financial men in New York and
other places spoke to Mr. Paschal, who had caused it to be inserted in the
Tribune, about it. It was testified also, that after the commencement of the
suit, White & Chiles said that they had seen it.
The rebel forces being disbanded on the 25th May, 1865, and
the civil officers of the usurping government of Texas having fled from the
country, the President, on the 17th June, 1865, issued his proclamation
appointing Mr. A. J. Hamilton, provisional governor of the State; and directing
the formation by the people of a State government in Texas.
Under the provisional government thus established, the
people proceeded to make a constitution, and reconstruct their State
government.
But much question arose as to what was thus done, and the
State was not acknowledged by the Congress of the United States as being reconstructed.
On the contrary, Congress passed, in March, 1867, three certain acts, known as
the Reconstruction Acts. By the first of these, reciting that no legal State
governments or adequate protection for life or property then existed in the
rebel States of Texas, and nine other States named, and that it was necessary
that peace and good order should be enforced in them until loyal and republican
State governments could be legally established, Congress divided the States
named into five military districts (Texas with Louisiana being the
fifth), and made it the duty of the President to assign to each an officer
of the army, and to detail a sufficient military force to enable him to
perform his duties and enforce authority within his district. The act made it the
duty of this officer to protect all persons in their rights, to suppress
insurrection, disorder, violence, and to punish, or cause to be punished, all
disturbers of the public peace and criminals, either through the local civil
tribunals or through military commissions, which the act authorized. It
provided, further, that when the people of any one of these States had formed a
constitution in conformity with that of the United States, framed in a way
which the statute went on to specify, and when the State had adopted a certain
article of amendment named, to the Constitution of the United States, and when
such article should have become a part of the Constitution of the United
States, then that the States respectively should be declared entitled to
representation in Congress, and the preceding part of the act become
inoperative; and that until they were so admitted any civil governments which
might exist in them should be deemed provisional only, and subject to the
paramount authority of the United States, at any time to abolish, modify,
control, or supersede them.
A State convention of 1866 passed an ordinance looking to
the recovery of these bonds; and by act of October of that year, the governor
of Texas was authorized to take such steps as he might deem best for the
interests of the State in the matter; either to recover the bonds, or to
compromise with holders. Under this act the governor appointed an agent of the State
to look after the matter.
It was in this state of things, with the State government
organized in the manner and with the status above mentioned, that this
present bill was directed by this agent to be filed.
The bill was filed by Mr. R. T. Merrick and others,
solicitors in this court, on behalf of the State, without precedent written
warrant of attorney. But a letter from J. W. Throckmorton, elected governor
under the constitution of 1866, ratified their act, and authorized them to
prosecute the suit. Mr. Paschal, who now appeared with the other counsel, in
behalf of the State, had been appointed by Governor Hamilton to represent the
State, and Mr. Pease, a subsequent governor, appointed by General Sheridan,
commander under the reconstruction acts, renewed this appointment.
The bill set forth the issue and delivery of the bonds to
the State, the fact that they were seized by a combination of persons in armed
hostility to the government of the United States, sold by an organization
styled the military board, to White & Chiles, for the purpose of
aiding the overthrow of the Federal government; that White & Chiles
had not performed what they agreed to do. It then set forth that they had
transferred such and such numbers, specifying them, to Hardenberg, and such and
such others to Birch, Murray & Co., &c.; that these transfers were not
in good faith, but were with express notice on the part of the transferees of
the manner in which the bonds had been obtained by White & Chiles; that the
bonds were overdue at the time of the transfer; and that they had never been
indorsed by any governor of Texas. The bill interrogated the defendants about
all these particulars; requiring them to answer on oath; and, as already
mentioned, it prayed an injunction against their asking, or receiving payment
from the United States; that the bonds might be delivered to the State of
Texas, and for other and further relief.
As respected White & Chiles, who had now largely parted
with the bonds, the case rested much upon what precedes, and their own answers.
The answer of CHILES, declaring that he had none of the bonds
in his possession, set forth:
1. That there was no sufficient authority shown to prosecute
the suit in the name of Texas.
2. That Texas by her rebellious courses had so far changed
her status, as one of the United States, as to be disqualified from suing
in this court.
3. That whether the government of Texas, during the term in
question, was one de jure or defacto, it had authorized the
military board to act for it, and that the state was stopped from denying its
act.
5.That the articles which White and Chiles had agreed to
give the State, were destroyed in
transita, by disbanded troops, who infested Texas, and that the loss of the
articles were unavoidable.
The answer of WHITE went over some of the same ground with
that of Chiles. He admitted, however, “that he was informed and believed that
in all cases where any of the bonds were disposed of by him, it was known to
the parties purchasing for themselves, or as agents for others, that there
was some embarrassment in obtaining payment of said bonds at the treasury of
the United States, arising out of the title of this respondent and his
co-defendant Chiles.”
As respected HARDENBERG, the case seemed much thus:
In the beginning of November, 1866, after the date of
the notices given through Mr. Paschal, one Hennessey, residing in New York, and
carrying on an importing and commission business, then sold to Hardenberg
thirty of these bonds, originally given to White and Chiles; and which thirty,
a correspondent of his, long known to him, in Tennessee, had sent to him for
sale. Hardenberg bought them “at the rate of 1.20 for the dollar on their
face,” and paid for them. Hennessey had “heard from somebody that there was
some difficulty about the bonds being paid at the treasury, but did not
remember whether he heard that before or after the sale.”
Hardenberg also bought others of these bonds near the same
time, at 1.15 per cent., under circumstances thus testified to by Mr. C. T.
Lewis, a lawyer of New York:
“In conversation with Mr. Hardenberg, I had learned that he
was interested in the Texas indemnity bonds, and meditated purchasing same. I
was informed in Wall Street that such bonds were offered for sale by Kimball
& Co., at a certain price, which price I cannot now recollect. I informed
Mr. Hardenberg of this fact, and he requested me to secure the bonds for him at
that price. I went to C. H. Kimball & Co., and told them to send the bonds
to Mr. Hardenberg’s office and get a check for them, which I understand they
did. I remember expressing to Mr. Hardenberg the opinion that these bonds,
being on their face negotiable by delivery, and payable in gold, must, at no
distant day, be redeemed according to their tenor, and were, therefore, a good
purchase at the price at which they were offered.
“My impression is, that before this negotiation I had
read a paragraph in some New York newspaper, stating that the payment of the
whole issue of the Texas indemnity bonds was suspended until the history of a
certain portion of the issue, supposed to have been negotiated for the benefit
of the rebel service, should be understood. I am not at all certain whether I
read this publication before or after the date of the transaction. If the
publication was made before this transaction I had probably read the article
before the purchase was made. My impression is, that it was a paragraph in
a money article, but I attributed no great importance to it. I acted in this
matter simply as the friend of Mr. Hardenberg, and received no commission for
my services. I am a lawyer by profession, and not a broker.”
Kimball & Co. (the brokers thus above referred to by Mr.
Lewis), testified that they had received the bonds thus sold, from a firm which
they named, “in perfect good faith, and sold them in like good faith, as we
would any other lot of bonds received from a reputable house.” It appeared,
however, that in sending the bonds to Kimball & Co., for sale, the firm had
requested that they might not be known in the transaction.
Hardenberg's own account of the matter, as declared by his
answer, was thus:
“That he was a merchant in the city of New York; that he
purchased the bonds held by him in open market in said city; that the parties
from whom he purchased the same were responsible persons, residing and doing
business in said city; that he purchased of McKim, Brothers & Co., bankers
in good standing in Wall Street, one bond at 1.15 per cent, on the 6th of November,
1866, when gold was at the rate of $1.47}, and declining; that when he
purchased the same he made no inquiries of McKim, Brothers & Co.,
but took the bonds on his own observation of their plain tenor and effect at
what he conceived to be a good bargain; that afterwards, and before the payment
of said bonds and coupons by the Secretary of the Treasury, and at the request
of the Comptroller, Hon. R. W. Tayler, he made inquiry of said firm of McKim,
Brothers & Co., and they informed him that said bonds and coupons
had been sent to them to be sold by the First National Bank of Wilmington,
North. Carolina; that he purchased on the 8th of November, 1866, thirty of said
bonds, amounting to the sum of $32,475, of J. S. Hennessey, 29 Warren Street,
New York City, doing business as a commission merchant, who informed him that,
in the way of business, they were sent him by Hugh Douglas, of Nashville,
Tennessee; that he paid at the rate of 120 cents at a time, to wit, the 8th of
November, 1866, when gold was selling at 146 and declining; that the three
other bonds were purchased by him on the 8th of November, 1866, of C. H.
Kimball & Co., 30 Broad Street, brokers in good standing, who informed him,
on inquiry afterwards, that said bonds were handed them to be sold by a banking
house in New York of the highest respectability, who owned the same, but whose
names were not given, as the said firm informed him they could see no reason
for divulging private transactions; and that he paid for last-mentioned bonds
at the rate of 120 cents, on said 8th day of November, 1866, when gold was
selling at 146 and declining.
“Further answering, he saith that he had no knowledge at the
time of said purchase, that the bonds were obtained from the State of Texas, or
were claimed by the said State; that he acted on information obtained from the
public report of the Secretary of the Treasury, showing that a large portion of
similar bonds had been redeemed, and upon his own judgment of the nature. of
the obligation expressed by the bonds themselves, and upon his own faith in the
full redemption of said bonds; and he averred that he had no knowledge of the
contract referred to in the bill of complaint, nor of the interest or relation
of White & Chiles, nor of any connection which they had with said complainant,
or said bonds, nor of the law of the State of Texas requiring indorsement.”
The answer of White mentioned, in regard to Hardenberg's
bonds, that they were sold by his (White's) broker; that he, White, had no
knowledge of the name of the real purchaser, who, however, paid 115 per cent
for them; “that at the time of the sale, his (White's) broker informed him that
the purchaser, or the person acting for the purchaser, did not want any
introduction to the respondent, and required no history of the bonds proposed
to be sold; that he only desired that they should come to him through the hands
of a loyal person, who had never been identified with the rebellion.”
Another matter, important possibly in reference to the
relief asked by the bill, and to the exact decree3 made, should,
perhaps, be mentioned about these bonds of Hardenberg.
The answer of Hardenberg stated, that “on the 16th of
February, 1867, the Secretary of the Treasury ordered the payment to the
respondent of all said bonds and coupons, and the same were paid on that
day.” This was literally true; and the books of the treasury showed these bonds
as among the redeemed bonds; and showed nothing else. As a matter of fact, it
appeared that the agents of Texas on the one hand, urging the government not to
pay the bonds, and the holders, on the other, pressing for payment—it being
insisted by these last that the United States had no right to withhold the
money, and thus deprive the holder of the bonds of interest—the Controller of
the Treasury, Mr. Tayler, made, a report, on the 29th of January, 1867, to the
Secretary of the Treasury, in which he mentioned, that it seemed to be agreed
by the agents of the State, that her case depended on her ability to show a
want of good faith on the part of the holders of bonds; and that he had stated
to the agents, that as considerable delay had already been incurred, he would,
unless during the succeeding week they took proper legal steps against the
holders, feel it his duty to pay such bonds as were unimpeached in title in the
holders’ hands. He accordingly recommended to the secretary payment of
Hardenberg's and of some others. The agents, on the same day that the
controller made his report, and after he had written most of it, informed him
that they would take legal proceedings on behalf of the State; and were
informed in turn that the report would be made on that day, and would embrace
Hardenberg's bonds. Two days afterwards a personal action was commenced, in the
name of the State of Texas, against Mr. McCulloch, the then Secretary of the
Treasury, for the detention of the bonds of Hardenberg and others. This action
was dismissed February 19th. On the 15th of the same February, the present bill
was filed. On the 16th of the month, the personal suit against the secretary
having at the time, as already above stated, been withdrawn, and no process
under the present bill having then, nor until the 27th following, been served
on Hardenberg, Mr. Tayler, Controller of the Treasury, and one Cox, the
agent of Hardenberg, entered into an arrangement, by which it was agreed that
this agent should deposit with Mr. Tayler government notes known as
“seven-thirties,” equivalent in value to the bonds and coupons held by
Hardenberg; to be held by Mr. Tayler “as indemnity for Mr. McCulloch, against
any personal damage, loss, and expense in which he may be involved by reason of
the payment of the bonds.” The seven-thirties were then delivered to Mr.
Tayler, and a check in coin for the amount of the bonds and interest was
delivered to Hardenberg's agent. The seven-thirties were subsequently converted
into the bonds called “five-twenties,” and these remained in the hands of Mr.
Tayler, being registered in his name as trustee. The books of the treasury
showed nothing in relation to this trust; nor, as already said, anything more
or other than that the bonds were paid to Hardenberg or his agent.
Next, as respected the bonds of BIRCH, MURRAY & Co. It
seemed in regard to these, that prior to July, 1855, Chiles wanting
money, applied to this firm, who lent him $5000, on a deposit of twelve of
the bonds. The whole of the twelve were taken to the treasury department. The
department at first declined to pay them, but finally did pay four of them
(amounting with the coupons to $4900), upon the ground urged by the firm, that
it had lent the $5000 to Chiles on the hypothecation of the bonds and coupons
without knowledge of the claim of the State of Texas, and because the firm was
urged to be, and was apparently, a holder in good faith, and for value; the
other bonds, eight in number, remaining in the treasury, and not paid to the
firm, because of the alleged claim of the State of Texas, and of the allegation
that the same had come into the possession of said White and Chiles improperly,
and without consideration.
The difficulty now was less perhaps about the four bonds,
than about these eight, whose further history was thus presented by the answer
of Birch, one of the firm, to the bill. He said in this answer, and after
mentioning his getting with difficulty the payment of the four bonds—
“That afterwards, and during the year 1866, Chiles
called upon him with the printed report of the First Comptroller of the
Treasury, Hon. R. W. Tayler, from which it appeared that the department would,
in all reasonable probability, redeem all said bonds; and requested further
advances on said eight remaining bonds; and that the firm thereupon advanced
said Chiles, upon the said eight bonds, from time to time, the sum of $4185.25,
all of which was due and unpaid. That he made the said advances as well upon
the representations of said Chiles that he was the bonâ fide holder of
said bonds and coupons, as upon his own observation and knowledge of their
legal tenor and effect; and of his faith in the redemption thereof by the
government of the United States.”
The answer said further, that—
“At the time of the advances first made, the firm had no
knowledge of the contract referred to in the bill; nor of the interest or
connection of said White & Chiles with the complainant, nor of the law of
the State of Texas referred to in the bill passed December 16, 1851; and that
the bonds we taken in good faith.”
It appeared further, in regard to the whole of these bonds, that,
in June, 1865, Chiles, wanting to borrow money of one Barret, and he,
Barret, knowing Mr. Hamilton, just then appointed provisional governor, but not
yet installed into office, nor apparently as yet having the impressions which
he afterwards by his caution made public, went to him, supposing him well
acquainted with the nature of these bonds, and sought his opinion as to their
value, and as to whether they would be paid. Barret's testimony proceeded:
“He advised me to accept the proposition of Chiles, and gave
it as his opinion that the government would have to pay the bonds. I
afterwards had several conversations with him on the subject, in all of which
he gave the same opinion. Afterwards, (I
can't remember the exact time), Mr. Chiles applied to Birch,
Murray & Co. for a loan of money, proposing to give some bonds as
collateral security; and at his request I went to Birch, Murray & Co.,
and informed them of my conversations with Governor Hamilton, and of his
opinion as expressed to me. They then seemed willing to make a loan on the
security offered. In order to give them further assurance that I was not
mistaken in my report of Governor Hamilton's opinion verbally expressed, I
obtained from him a letter [letter produced]. It reads thus:
NEw York, June 25th, 1865.
HON. J. R. BARRET.
DEAR SIR: In reply to your question
about Texas indemnity bonds issued by the U. S., I can assure you that they are
perfectly good, and the gov't will certainly pay them to the holders.
Yours
truly,
A.
J. HAMILTON.
The witness “mentioned the conversations had with Governor
Hamilton, and also spoke of the letter, and sometimes read it to various
parties, some of whom were dealing in these bonds,” and, as he stated, had
“reason to believe that Governor Hamilton’s opinion in regard to the bonds
became pretty generally known among dealers in such paper.” The witness,
however, did not know Mr. Hardenberg.
The questions, therefore, were:
1. A minor preliminary one; the question presented by
Chiles's answer, as to whether sufficient authority was shown for the
prosecution of the suit in the name and in behalf of Texas.
2. A great and principal one; a question of jurisdiction,
viz., whether Texas, at the time of the bill filed or now, was one of the
United States of America, and so competent to file an original bill here.
3. Assuming that she was, a question whether the respective
defendants, any, all, or who of them, were proper subjects for the injunction
prayed, as holding the bonds without sufficient title, and herein—and more
particularly as respected Hardenberg, and Birch, Murray & Co.—a
question of negotiable paper, and the extent to which holders, asserting
themselves holders bonâ fide and for value, of paper payable “to
bearer,” held it discharged of precedent equities.
4. A question as to the effect of the payments, at the
treasury, of the bonds of Hardenberg and of the four bonds of Birch, Murray
& Co.
The case was argued by Messrs. Paschal and Merrick, in
behalf of Texas; and contra, by Mr. Phillips, for White; Mr. Pike, for Chiles;
Mr. Carlisle, for Hardenberg; and Mr. Moore, for Birch, Murray & Co.
The CHIEF JUSTICE delivered the opinion of the court.
This is an original suit in this court, in which the State
of Texas, claiming certain bonds of the United States as her property, asks an
injunction to restrain the defendants from receiving payment from the National
government, and to compel the surrender of the bonds to the State.
It appears from the bill, answers, and proofs, that the
United States, by act of September 9, 1850, offered to the State of Texas, in
compensation for her claims connected with the settlement of her boundary,
$10,000,000 in five per cent. bonds, each for the sum of $1000; and that this
offer was accepted by Texas. One-half of these bonds were retained for certain
purposes in the National treasury, and the other half were delivered to the
State. The bonds thus delivered were dated January 1, 1851, and were all made
payable to the State of Texas, or bearer, and redeemable after the 31st day of
December, 1864. They were received in behalf of the State by the comptroller of
public accounts, under authority of an act of the legislature, which, besides
giving that authority, provided that no bond should be available in the hands
of any holder until after indorsement by the governor of the State.
After the breaking out of the rebellion, the insurgent
legislature of Texas, on the 11th of January, 1862, repealed the act requiring
the indorsement of the governor,4 and on the same day provided for
the organization of a military board, composed of the governor, comptroller,
and treasurer; and authorized a majority of that board to provide for the
defence of the State by means of any bonds in the treasury, upon any account,
to the extent of $1,000,000.5 The defence contemplated by the act
was to be made against the United States by war. Under this authority the
military board entered into an agreement with George W. White and John Chiles,
two of the defendants, for the sale to them of one hundred and thirty-five of
these bonds, then in the treasury of the State, and seventy-six more, then
deposited with Droege & Co., in England; in payment for which they engaged
to deliver to the board a large quantity of cotton cards and medicines. This
agreement was made on the 12th of January, 1865. On the 12th of March, 1865,
White and Chiles received from the military board one hundred and thirty-five
of these bonds, none of which were indorsed by any governor of Texas.
Afterward, in the course of the years 1865 and 1866, some of the same bonds
came into the possession of others of the defendants, by purchase, or as security
for advances of money.
Such is a brief outline of the case. It will be necessary
hereafter to refer more in detail to some particular circumstances of it.
The first inquiries to which our attention was directed by counsel,
arose upon the allegations of the answer of Chiles (1), that no sufficient
authority is shown for the prosecution of the suit in the name and on the
behalf of the State of Texas; and (2) that the State, having severed her
relations with a majority of the States of the Union, and having by her
ordinance of secession attempted to throw off her allegiance to the
Constitution and government of the United States, has so far changed her status
as to be disabled from prosecuting suits in the National courts.
The first of these allegations is disproved by the evidence.
A letter of authority, the authenticity of which is not disputed, has been
produced, in which J. W. Throckmorton, elected governor under the constitution
adopted in 1866, and proceeding under an act of the State legislature relating
to these bonds, expressly ratifies and confirms the action of the solicitors
who filed the bill, and empowers them to prosecute this suit; and it is further
proved by the affidavit of Mr. Paschal, counsel for the complainant, that he
was duly appointed by Andrew J. Hamilton, while provisional governor of Texas,
to represent the State of Texas in reference to the bonds in controversy, and
that his appointment has been renewed by E. M. Pease, the actual governor. If
Texas was a State of the Union at the time of these acts, and these persons, or
either of them, were competent to represent the State, this proof leaves no
doubt upon the question of authority.
The other allegation presents a question of jurisdiction. It
is not to be questioned that this court has original jurisdiction of suits by
States against citizens of other. States, or that the States entitled to invoke
this jurisdiction must be States of the Union. But, it is equally clear that no
such jurisdiction has been conferred upon this court of suits by any other
political communities than such States.
If, therefore, it is true that the State of Texas was not at
the time of filing this bill, or is not now, one of the United States, we have
no jurisdiction of this suit, and it is our duty to dismiss it.
We are very sensible of the magnitude and importance of this
question, of the interest it excites, and of the difficulty, not to say
impossibility, of so disposing of it as to satisfy the conflicting judgments of
men equally enlightened, equally upright, and equally patriotic. But we meet it
in the case, and we must determine it in the exercise of our best judgment,
under the guidance of the Constitution alone.
Some not unimportant aid, however, in ascertaining the true
sense of the Constitution, may be derived from considering what is the correct
idea of a State, apart from any union or confederation with other States. The
poverty of language often compels the employment of terms in quite different
significations; and of this hardly any example more signal is to be found than
in the use of the word we are now considering. It would serve no useful purpose
to attempt an enumeration of all the various senses in which it is used. A few
only need be noticed.
It describes sometimes a people or community of individuals
united more or less closely in political relations, inhabiting temporarily or
permanently the same country; often it denotes only the country or territorial
region, inhabited by such a community; not unfrequently it is applied to the
government under which the people live; at other times it represents the combined
idea of people, territory, and government.
It is not difficult to see that in all these senses the
primary conception is that of a people or community. The people, in whatever
territory dwelling, either temporarily or permanently, and whether organized
under a regular government, or united by looser and less definite relations,
constitute the State.
This is undoubtedly the fundamental idea upon which the
republican institutions of our own country are established. It was stated very
clearly by an eminent judge,6 in one of the earliest cases
adjudicated by this court, and we are not aware of anything, in any subsequent
decision, of a different tenor.
In the Constitution the term state most frequently expresses
the combined idea just noticed, of people, territory, and government. A state,
in the ordinary sense of the Constitution, is a political community of free
citizens, occupying a territory of defined boundaries, and organized under a
government sanctioned and limited by a written constitution, and established by
the consent of the governed. It is the union of such states, under a common
constitution, which forms the distinct and greater political unit, which that
Constitution designates as the United States, and makes of the people and
states which compose it one people and one country.
The use of the word in this sense hardly requires further
remark. In the clauses which impose prohibitions upon the States in respect to
the making of treaties, emitting of bills of credit, and laying duties of tonnage,
and which guarantee to the States representation in the House of
Representatives and in the Senate, are found some instances of this use in the
Constitution. Others will occur to every mind.
But it is also used in its geographical sense, as in the clauses
which require that a representative in Congress shall be an inhabitant of the
State in which he shall be chosen, and that the trial of crimes shall be held
within the State where committed.
And there are instances in which the principal sense of the word
seems to be that primary one to which we have adverted, of a people or
political community, as distinguished from a government.
In this latter sense the word seems to be used in the clause
which provides that the United States shall guarantee to every State in the
Union a republican form of government, and shall protect each of them against
invasion.
In this clause a plain distinction is made between a State
and the government of a State.
Having thus ascertained the senses in which the word state
is employed in the Constitution, we will proceed to consider the proper
application of what has been said.
The Republic of Texas was admitted into the Union, as a
State, on the 27th of December, 1845. By this act the new State, and the people
of the new State, were invested with all the rights, and became subject to all
the responsibilities and duties of the original States under the Constitution.
From the date of admission, until 1861, the State was
represented in the Congress of the United States by her senators and
representatives, and her relations as a member of the Union remained
unimpaired. In that year, acting upon the theory that the rights of a State
under the Constitution might be renounced, and her obligations thrown off at
pleasure, Texas undertook to sever the bond thus formed, and to break up her
constitutional relations with the United States.
On the 1st of February,7 a convention, called
without authority, but subsequently sanctioned by the legislature regularly
elected, adopted an ordinance to dissolve the union between the State of Texas
and the other States under the Constitution of the United States, whereby Texas
was declared to be “a separate and sovereign State,” and “her people and
citizens” to be “absolved from all allegiance to the United States, or the
government thereof.”
It was ordered by a vote of the convention8 and
by an act of the legislature,9 that this ordinance should be
submitted to the people, for approval or disapproval, on the 23d of February,
1861.
Without awaiting, however, the decision thus invoked, the
convention, on the 4th of February, adopted a resolution designating seven
delegates to represent the State in the convention of seceding States at
Montgomery, “in order,” as the resolution declared, “that the wishes and
interests of the people of Texas may be consulted in reference to the
constitution and provisional government that may be established by said
convention.”
Before the passage of this resolution the convention had appointed
a committee of public safety, and adopted an ordinance giving authority to that
committee to take measures for obtaining possession of the property of the
United States in Texas, and for removing the National troops from her limits.
The members of the committee, and all officers and agents appointed or employed
by it, were sworn to secrecy and to allegiance to the State.10
Commissioners were at once appointed, with instructions to repair to the
headquarters of General Twiggs, then representing the United States in command
of the department, and to make the demands necessary for the accomplishment of
the purposes of the committee. A military force was organized in support of
these demands, and an arrangement was effected with the commanding general, by
which the United States troops were engaged to leave the State, and the forts
and all the public property, not necessary to the removal of the troops, were
surrendered to the commissioners.11
These transactions took place between the 2d and the 18th of
February, and it was under these circumstances that the vote upon the
ratification or rejection of the ordinance of secession was taken on the 23d of
February. It was ratified by a majority of the voters of the State. The
convention, which had adjourned before the vote was taken, reassembled on the
2d of March, and instructed the delegates already sent to the Congress of the
seceding States, to apply for admission into the confederation, and to give the
adhesion of Texas to its provisional constitution. It proceeded, also, to make
the changes in the State constitution which this adhesion made necessary. The
words “United States,” were stricken out wherever they occurred, and the words
“Confederate States” substituted; and the members of the legislature, and all
officers of the State, were required by the new constitution to take an oath of
fidelity to the constitution and laws of the new confederacy. Before, indeed,
these changes in the constitution had been completed, the officers of the State
had been required to appear before the committee and take an oath of allegiance
to the Confederate States.
The governor and secretary of state, refusing to comply,
were summarily ejected from office.
The members of the legislature, which had also adjourned and
reassembled on the 18th of March, were more compliant. They took the oath, and
proceeded on the 8th of April to provide by law for the choice of electors of
president and vice-president of the Confederate States.
The representatives of the State in the Congress of the
United States were withdrawn, and as soon as the seceded States became
organized under a constitution, Texas sent senators and representatives to the
Confederate Congress.
In all respects, so far as the object could be accomplished
by ordinances of the convention, by acts of the legislature, and by votes of
the citizens, the relations of Texas to the Union were broken up, and new
relations to a new government were established for them.
The position thus assumed could only be maintained by arms,
and Texas accordingly took part, with the other Confederate States, in the war
of the rebellion, which these events made inevitable. During the whole of that
war there was no governor, or judge, or any other State officer in Texas, who
recognized the National authority. Nor was any officer of the United States
permitted to exercise any authority whatever under the National government
within the limits of the State, except under the immediate protection of the
National military forces.
Did Texas, in consequence of these acts, cease to be a State?
Or, if not, did the State cease to be a member of the Union?
It is needless to discuss, at length, the question whether
the right of a State to withdraw from the Union for any cause, regarded by
herself as sufficient, is consistent with the Constitution of the United
States.
The Union of the States never was a purely artificial and arbitrary
relation. It began among the Colonies, and grew out of common origin, mutual
sympathies, kindred principles, similar interests, and geographical relations.
It was confirmed and strengthened by the necessities of war, and received
definite form, and character, and sanction from the Articles of Confederation.
By these the Union was solemnly declared to “be perpetual.” And when these
Articles were found to be inadequate to the exigencies of the country, the
Constitution was ordained “to form a more perfect Union.” It is difficult to
convey the idea of indissoluble unity more clearly than by these words. What
can be indissoluble if a perpetual Union, made more perfect, is not?
But the perpetuity and indissolubility of the Union, by no
means implies the loss of distinct and individual existence, or of the right of
self-government by the States. Under the Articles of Confederation each State
retained its sovereignty, freedom, and independence, and every power,
jurisdiction, and right not expressly delegated to the United States. Under the
Constitution, though the powers of the States were much restricted, still, all
powers not delegated to the United States, nor prohibited to the States, are
reserved to the States respectively, or to the people. And we have already had
occasion to remark at this term, that “the people of each State compose a
State, having its own government, and endowed with all the functions essential
to separate and independent existence,” and that “without the States in union,
there could be no such political body, as the United States.12 Not
only, therefore, can there be no loss of separate and independent autonomy to
the States, through their union under the Constitution, but it may be not
unreasonably said that the preservation of the States, and the maintenance of
their governments, are as much within the design and care of the Constitution
as the preservation of the Union and the maintenance of the National
government. The Constitution, in all its provisions, looks to an indestructible
Union, composed of indestructible States.
When, therefore, Texas became one of the United States, she
entered into an indissoluble relation. All the obligations of perpetual union,
and all the guaranties of republican government in the Union, attached at once
to the State. The act which consummated her admission into the Union was
something more than a compact; it was the incorporation of a new member into
the political body. And it was final. The union between Texas and the other
States was as complete, as perpetual, and as indissoluble as the union between
the original States. There was no place for reconsideration, or revocation,
except through revolution, or through consent of the States.
Considered therefore as transactions under the Constitution,
the ordinance of secession, adopted by the convention and ratified by a
majority of the citizens of Texas, and all the acts of her legislature intended
to give effect to that ordinance, were absolutely null. They were utterly
without operation in law. The obligations of the State, as a member of the
Union, and of every citizen of the State, as a citizen of the United States,
remained perfect and unimpaired. It certainly follows that the State did not
cease to be a State, nor her citizens to be citizens of the Union. If this were
otherwise, the State must have become foreign, and her citizens foreigners. The
war must have ceased to be a war for the suppression of rebellion, and must
have become a war for conquest and subjugation.
Our conclusion therefore is, that Texas continued to be a
State, and a State of the Union, notwithstanding the transactions to which we
have referred. And this conclusion, in our judgment, is not in conflict with
any act or declaration of any department of the National government, but
entirely in accordance with the whole series of such acts and declarations
since the first outbreak of the rebellion.
But in order to the exercise, by a State, of the right to
sue in this court, there needs to be a State government, competent to represent
the State in its relations with the National government, so far at least as the
institution and prosecution of a suit is concerned.
And it is by no means a logical conclusion, from the premises
which we have endeavored to establish, that the governmental relations of Texas
to the Union remained unaltered. Obligations often remain unimpaired, while
relations are greatly changed. The obligations of allegiance to the State, and
of obedience to her laws, subject to the Constitution of the United States, are
binding upon all citizens, whether faithful or unfaithful to them; but the
relations which subsist while these obligations are performed, are essentially
different from those which arise when they are disregarded and set at nought.
And the same must necessarily be true of the obligations and relations of
States and citizens to the Union. No one has been bold enough to contend that,
while Texas was controlled by a government hostile to the United States, and in
affiliation with a hostile confederation, waging war upon the United States,
senators chosen by her legislature, or representatives elected by her citizens,
were entitled to seats in Congress; or that any suit, instituted in her name,
could be entertained in this court. All admit that, during this condition of
civil war, the rights, of the State as a member, and of her people as citizens
of the Union, were suspended. The government and the citizens of the State,
refusing to recognize their constitutional obligations, assumed the character
of enemies, and incurred the consequences of rebellion.
These new relations imposed new duties upon the United
States. The first was that of suppressing the rebellion. The next was that of
re-establishing the broken relations of the State with the Union. The first of
these duties having been performed, the next necessarily engaged the attention
of the National government.
The authority for the performance of the first had been
found in the power to suppress insurrection and carry on war; for the
performance of the second, authority was derived from the obligation of the
United States to guarantee to every State in the Union a republican form of
government. The latter, indeed, in the case of a rebellion which involves the
government of a State, and for the time excludes the National authority from
its limits, seems to be a necessary complement to the former.
Of this, the case of Texas furnishes a striking
illustration. When the war closed there was no government in the State except
that which had been organized for the purpose of waging war against the United
States. That government immediately disappeared. The chief functionaries left
the State. Many of the subordinate officials followed their example. Legal
responsibilities were annulled or greatly impaired. It was inevitable that
great confusion should prevail. If order was maintained, it was where the good
sense and virtue of the citizens gave support to local acting magistrates, or supplied
more directly the needful restraints.
A great social change increased the difficulty of the
situation. Slaves, in the insurgent States, with certain local exceptions, had
been declared free by the
Proclamation
of Emancipation; and whatever questions might be made as to the effect of
that act, under the Constitution, it was clear, from the beginning, that its
practical operation, in connection with legislative acts of like tendency, must
be complete enfranchisement. Wherever the National forces obtained control, the
slaves became freemen. Support to the acts of Congress and the proclamation of
the President, concerning slaves, was made a condition of amnesty
13
by President Lincoln, in December, 1863, and by President Johnson in May, 1865.
14
And emancipation was confirmed, rather than ordained, in the insurgent States,
by the amendment to the Constitution prohibiting slavery throughout the Union,
which was proposed by Congress in February, 1865, and ratified, before the
close of the following autumn, by the requisite three-fourths of the States.
15
The new freemen necessarily became part of the people, and
the people still constituted the State; for States, like individuals, retain
their identity, though changed to some extent in their constituent elements.
And it was the State, thus constituted, which was now entitled to the benefit of
the constitutional guaranty.
There being then no government in Texas in constitutional
relations with the Union, it became the duty of the United States to provide
for the restoration of such a government. But the restoration of the government
which existed before the rebellion, without a new election of officers, was
obviously impossible; and before any such election could be properly held, it
was necessary that the old constitution should receive such amendments as would
conform its provisions to the new conditions created by emancipation, and
afford adequate security to the people of the State.
In the exercise of the power conferred by the guaranty
clause, as in the exercise of every other constitutional power, a discretion in
the choice of means is necessarily allowed. It is essential only that the means
must be necessary and proper for carrying into execution the power conferred,
through the restoration of the State to its constitutional relations, under a
republican form of government, and that no acts be done, and no authority
exerted, which is either prohibited or unsanctioned by the Constitution.
It is not important to review, at length, the measures which
have been taken, under this power, by the executive and legislative departments
of the National government. It is proper, however, to observe that almost
immediately after the cessation of organized hostilities, and while the war yet
smouldered in Texas, the President of the United States issued his proclamation
appointing a provisional governor for the State, and providing for the
assembling of a convention, with a view to the re-establishment of a republican
government, under an amended constitution, and to the restoration of the State
to her proper constitutional relations. A convention was accordingly assembled,
the constitution amended, elections held, and a State government, acknowledging
its obligations to the Union, established.
Whether the action then taken was, in all respects,
warranted by the Constitution, it is not now necessary to determine. The power
exercised by the President was supposed, doubtless, to be derived from his
constitutional functions, as commander-in-chief; and, so long as the war
continued, it cannot be denied that he might institute temporary government
within insurgent districts, occupied by the National forces, or take measures,
in any State, for the restoration of State government faithful to the Union,
employing, however, in such efforts, only such means and agents as were authorized
by constitutional laws.
But, the power to carry into effect the clause of guaranty
is primarily a legislative power, and resides in Congress. “Under the fourth
article of the Constitution, it rests with Congress to decide what government
is the established one in a State. For, as the United States guarantee to each
State a republican government, Congress must necessarily decide what government
is established in the State, before it can determine whether it is republican
or not.”
This is the language of the late Chief Justice, speaking for
this court, in a case from Rhode Island,16 arising from the
organization of opposing governments in that State. And, we think that the
principle sanctioned by it may be applied, with even more propriety, to the
case of a State deprived of all rightful government, by revolutionary violence;
though necessarily limited to cases where the rightful government is thus
subverted, or in imminent danger of being overthrown by an opposing government,
set up by force within the State.
The action of the President must, therefore, be considered
as provisional, and, in that light, it seems to have been regarded by Congress.
It was taken after the term of the 38th Congress had expired. The 39th
Congress, which assembled in December, 1865, followed by the 40th Congress,
which met in March, 1867, proceeded, after long deliberation, to adopt various
measures for reorganization and restoration. These measures were embodied in
proposed amendments to the Constitution, and in the acts known as the
Reconstruction Acts, which have been so far carried into effect, that a
majority of the States which were engaged in the rebellion have been restored
to their constitutional relations, under forms of government, adjudged to be
republican by Congress, through the admission of their “Senators and
Representatives into the councils of the Union.”
Nothing in the case before us requires the court to
pronounce judgment upon the constitutionality of any particular provision of
these acts.
But, it is important to observe that these acts themselves.
show that the governments, which had been established and had been in actual
operation under executive direction, were recognized by Congress as
provisional, as existing, and as capable of continuance.
By the act of March 2, 1867,17 the first of the
series, these governments were, indeed, pronounced illegal and were subjected
to military control, and were declared to be provisional only; and by the
supplementary act of July 19, 1867, the third of the series, it was further
declared that it was the true intent and meaning of the act of March 2, that
the governments then existing were not legal State governments, and if
continued, were to be continued subject to the military commanders of the
respective districts and to the paramount authority of Congress. We do not
inquire here into the constitutionality of this legislation so far as it
relates to military authority, or to the paramount authority of Congress. It
suffices to say, that the terms of the acts necessarily imply recognition of
actually existing governments; and that in point of fact, the governments thus
recognized, in some important respects, still exist.
What has thus been said generally describes, with sufficient
accuracy, the situation of Texas. A
provisional governor of the State was appointed by the President in
1865; in 1866 a governor was elected by the people under the constitution of
that year; at a subsequent date a governor was appointed by the commander of
the district. Each of the three exercised executive functions and actually
represented the State in the executive department.
In the case before us each has given his sanction to the
prosecution of the suit, and we find no difficulty, without investigating the
legal title of either to the executive office, in holding that the sanction
thus given sufficiently warranted the action of the solicitor and counsel in
behalf of the State. The necessary conclusion is that the suit was instituted
and is prosecuted by competent authority.
The question of jurisdiction being thus disposed of, we
proceed to the consideration of the merits as presented by the pleadings and
the evidence.
And the first question to be answered is, whether or not the
title of the State to the bonds in controversy was divested by the contract of
the military board with White and Chiles?
That the bonds were the property of the State of Texas on
the 11th of January, 1862, when the act prohibiting alienation without the
indorsement of the governor, was repealed, admits of no question, and is not
denied. They came into her possession and ownership through public acts of the
general government and of the State, which gave notice to all the world of the
transaction consummated by them. And, we think it clear that, if a State, by a
public act of her legislature, imposes restrictions upon the alienation of her
property, that every person who takes a transfer of such property must be held
affected by notice of them. Alienation, in disregard of such restrictions, can convey
no title to the alienee.
In this case, however, it is said that the restriction
imposed by the act of 1851 was repealed by the act of 1862. And this is true if
the act of 1862 can be regarded as valid. But, was it valid? 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 an 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 words, 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 is not necessary to attempt any exact definitions, within
which the acts of such a State government must be treated as valid, or invalid.
It may be said, perhaps with sufficient accuracy, 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
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.
What, then, tried by these general tests, was the character
of the contract of the military board with White and Chiles? That board, as we
have seen, was organized, not for the defence of the State against a foreign
invasion, or for its protection against domestic violence, within the meaning
of these words as used in the National Constitution, but for the purpose, under
the name of defence, of levying war against the United States. This purpose
was, undoubtedly, unlawful, for the acts which it contemplated are, within the
express definition of the Constitution, treasonable.
It is true that the military board was subsequently
reorganized. It consisted, thereafter, of the governor and two other members,
appointed and removable by him! and was, therefore, entirely subordinate to executive
control. Its general object remained without change, but its powers were
“extended to the control of all public works and supplies, and to the aid of
producing within the State, by the importation of articles necessary and proper
for such aid.”
And it was insisted in argument on behalf of some of the
defendants, that the contract with White and Chiles, being for the purchase of
cotton-cards and medicines, was not a contract in aid of the rebellion, but for
obtaining goods capable of a use entirely legitimate and innocent, and,
therefore, that payment for those goods by the transfer of any property of the
State was not unlawful. We cannot adopt this view. Without entering, at this
time, upon the inquiry whether any contract made by such a board can be
sustained, we are obliged to say that the enlarged powers of the board appear
to us to have been conferred in furtherance of its main purpose, of war against
the United States, and that the contract, under consideration, even if made in
the execution of these enlarged powers, was still a contract in aid of the
rebellion, and, therefore, void. And we cannot shut our eyes to the evidence
which proves that the act of repeal was intended to aid rebellion by
facilitating the transfer of these bonds. It was supposed, doubtless, that
negotiation of them would be less difficult if they bore upon their face no
direct evidence of having come from the possession of any insurgent State
government. We can give no effect, therefore, w to this repealing act.
It follows that the title of the State was not divested by
the act of the insurgent government in entering into this contract.
But it was insisted further, in behalf of those defendants
who claim certain of these bonds by purchase, or as collateral security, that however
unlawful may have been the means by which White and Chiles obtained possession
of the bonds, they are innocent holders, without notice, and entitled to
protection as such under the rules which apply to securities which pass by
delivery. These rules were fully discussed in Murray v. Lardner.18 We held in that case
that the purchaser of coupon bonds, before due, without notice and in good
faith, is unaffected by want of title in the seller, and that the burden of
proof in respect to notice and want of good faith, is on the claimant of the
bonds as against the purchaser. We are entirely satisfied with this doctrine.
Does the State, then, show affirmatively notice to these
defendants of want of title to the bonds in White and Chiles?
It would be difficult to give a negative answer to this
question if there were no other proof than the legislative acts of Texas. But
there is other evidence which might fairly be held to be sufficient proof of
notice, if the rule to which we have adverted could be properly applied to this
case.
But these rules have never been applied to matured
obligations. Purchasers of notes or bonds past due take nothing but the actual
right and title of the vendors.19
The bonds in question were dated January 1, 1851, and were
redeemable after the 31st of December, 1864. In strictness, it is true they
were not payable on the day when they became redeemable; but the known usage of
the United States to pay all bonds as soon as the right of payment accrues,
except where a distinction between redeemability and payability is made by law,
and shown on the face of the bonds, requires the application of the rule
respecting overdue obligations to bonds of the United States which have become
redeemable, and in respect to which no such distinction has been made.
Now, all the bonds in controversy had become redeemable
before the date of the contract with White and Chiles; and all bonds of the
same issue which have the indorsement of a governor of Texas made before the
date of the secession ordinance,—and there were no others indorsed by any
governor, “had been paid in coin on presentation at the Treasury Department;
while, on the contrary, applications for the payment of bonds, without the
required indorsement, and of coupons detached from such bonds, made to that
department, had been denied.
As a necessary consequence, the negotiation of these bonds
became difficult. They sold much below the rates they would have commanded had
the title to them been unquestioned. They were bought in fact, and under the
circumstances could only have been bought, upon speculation. The purchasers
took the risk of a bad title, hoping, doubtless, that through the action of the
National government, or of the government of Texas, it might be converted into
a good one.
And it is true that the first provisional governor of Texas
encouraged the expectation that these bonds would be ultimately paid to the
holders. But he was not authorized to make any engagement in behalf of the
State, and in fact made none. It is true, also, that the Treasury Department,
influenced perhaps by these representations, departed to some extent from its
original rule, and paid bonds held by some of the defendants without the
required indorsement. But it is clear that this change in the action of the department
could not affect the rights of Texas as a State of the Union, having a
government acknowledging her obligations to the National Constitution.
It is impossible, upon this evidence, to hold the defendants
protected by absence of notice of the want of title in White and Chiles. As
these persons acquired no right to payment of these bonds as against the State,
purchasers could acquire none through them.
On the whole case, therefore, our conclusion is that the
State of Texas is entitled to the relief sought by her bill, and a decree must
be made accordingly.20
Mr. Justice GRIER, dissenting.
I regret that I am compelled to dissent from the opinion of
the majority of the court on all the points raised and decided in this case.
The first question in order is the jurisdiction of the court to entertain this
bill in behalf of the State of Texas. The original jurisdiction of this court
can be invoked only by one of the United States. The Territories have no such
right conferred on them by the Constitution, nor have the Indian tribes who are
under the protection of the military authorities of the government. Is Texas
one of these United States? Or was she such at the time this bill was filed, or
since? This is to be decided as a political fact, not as a legal
fiction. This court is bound to know and notice the public history of the
nation. If I regard the truth of history for the last eight years, I cannot
discover the State of Texas as one of these United States. I do not think it
necessary to notice any of the very astute arguments which have been advanced
by the learned counsel in this case, to find the definition of a State, when we
have the subject treated in a clear and common sense manner by Chief Justice
Marshall, in the case of Hepburn & Dundass v. Ellzey.21 As the case is short,
I hope to be excused for a full report of it, as stated and decided by the
court. He says:
“The question is, whether the plaintiffs, as residents of
the District of Columbia, can maintain an action in the Circuit Court of the
United States for the District of Virginia. This depends on the act of Congress
describing the jurisdiction of that court. The act gives jurisdiction to the
Circuit Courts in cases between a citizen of the State in which the suit is
brought, and a citizen of another State. To support the jurisdiction in this
case, it must appear that Columbia is a State. On the part of the plaintiff, it
has been urged that Columbia is a distinct political society, and is,
therefore, a ‘State according to the definition of writers on, general law.
This is true; but as the act of Congress obviously uses the word ‘State’ in
reference to that term as used in the Constitution, it becomes necessary to
inquire whether Columbia is a State in the sense of that instrument. The result
of that examination is a conviction that the members of the American
Confederacy only are the States contemplated in the Constitution. The
House of Representatives is to be composed of members chosen by the people of
the several States, and each State shall have at least one representative. ‘The
Senate of the United States shall be composed of two senators from each State.
Each State shall appoint, for the election of the executive, a number of
electors equal to its whole number of senators and representatives. These
clauses show trat the word ‘State is used in the Constitution as designating a
member of the Union, and excludes from the term the signification attached to
it by writers on, the law of nations.”
Now we have here a clear and well-defined test by which we
may arrive at a conclusion with regard to the questions of fact now to be
decided.
Is Texas a State, now represented by members chosen by the
people of that State and received on the floor of Congress? Has she two
senators to represent her as a State in the Senate of the United States? Has
her voice been heard in the late election of President? Is she not now held and
governed as a conquered province by military force? The act of Congress of
March 2d, 1867, declares Texas to be a “rebel State,” and provides for its
government until a legal and republican State government could be legally
established. It constituted Louisiana and Texas the fifth military district,
and made it subject, not to the civil authority, but to the “military authorities
of the United States.”
It is true that no organized rebellion now exists there, and
the courts of the United States now exercise jurisdiction over the people of
that province. But this is no test of the State's being in the Union; Dacotah
is no State, and yet the courts of the United States administer justice there
as they do in Texas. The Indian tribes, who are governed by military force,
cannot claim to be States of the Union. Wherein does the condition of Texas
differ from theirs?
Now, by assuming or admitting as a fact the present status
of Texas as a State not in the Union politically, I beg leave to
protest against any charge of inconsistency as to judicial opinions heretofore
expressed as a member of this court, or silently assented to. I do not consider
myself bound to express any opinion judicially as to the constitutional right
of Texas to exercise the rights and privileges of a State of this Union, or the
power of Congress to govern her as a conquered province, to subject her to
military domination, and keep her in pupilage. I can only submit to the fact
as decided by the political position of the government; and I am not
disposed to join in any essay to prove Texas to be a State of the Union, when
Congress have decided that she is not. It is a question of fact, I repeat, and
of fact only. Politically, Texas is not a State in this Union: Whether
rightfully out of it or not is a question not before the court.
But conceding now the fact to be as judicially assumed by my
brethren, the next question is, whether she has a right to repudiate her
contracts? Before proceeding to answer this question, we must notice a fact in
this case that was forgotten in the argument. I mean that the United States are
no party to this suit, and refusing to pay the bonds because the money paid
would be used to advance the interests of the rebellion. It is a matter of
utter insignificance to the government of the United States to whom she makes
the payment of these bonds. They are payable to the bearer. The government is not
bound to inquire into the bonâ fides of the holder, nor whether the
State of Taxes has parted with the bonds wisely or foolishly. And although by
the Reconstruction Acts she is required to repudiate all debts contracted for
the purposes of the rebellion, this does not annul all acts of the State
government during the rebellion, or contracts for other purposes, nor authorize
the State to repudiate them.
Now, whether we assume the State of Texas to be judicially
in the Union (though actually out of it) or not, it will not alter the case.
The contest now is between the State of Texas and her own citizens. She seeks
to annul a contract with the respondents, based on the allegation that there
was no authority in Texas competent to enter into an agreement during the
rebellion. Having relied upon one fiction, namely, that she is a State
in the Union, she now relies upon a second one, which she wishes this court to
adopt, that she was not a State at all during the five-years that she was in
rebellion. She now sets up the plea of insanity, and asks the court to
treat all her acts made during the disease as void.
We have had some very astute logic to prove that judicially
she was not a State at all, although governed by her own legislature and
executive as “a distinct political body.”
The ordinance of secession was adopted by the convention on
the 18th of February, 1861; submitted to a vote of the people, and ratified by
an overwhelming majority. I admit that this was a very ill-advised measure.
Still it was the sovereign act of a sovereign State, and the verdict on the
trial of this question, “by battle,”22 as to her right to secede,
has been against her. But that verdict did not settle any question not involved
in the case. It did not settle the question of her right to plead insanity and
set aside all her contracts, made during the pending of the trial, with her own
citizens, for food, clothing, or medicines. The same “organized political
body,” exercising the sovereign power of the State, which required the indorsement
of these bonds by the governor, also passed the laws authorizing the disposal
of them without such indorsement. She cannot, like the chameleon, assume the
color of the object to which she adheres, and ask this court to involve itself
in the contradictory positions, that she is a State in the Union and was never
out of it, and yet not a State at all for four years, during which she acted
and claims to be “an organized political body,” exercising all the powers and
functions of an independent sovereign State. Whether a State de facto or de
jure, she is estopped from denying her identity in disputes with her own
citizens. If they have not fulfilled their contract, she can have her legal
remedy for the breach of it in her own courts.
But the case of Hardenberg differs from that of the other
defendants. He purchased the bonds in open market, bonâ fide, and for a
full consideration. Now, it is to be observed that these bonds are payable to
bearer, and that this court is appealed to as a court of equity. The argument
to justify a decree in favor of the commonwealth of Texas as against
Hardenberg, is simply this: these bonds, though payable to bearer, are
redeemable fourteen years from date. The government has exercised her privilege
of paying the interest for a term without redeeming the principal, which gives
an additional value to the bonds. Ergo, the bonds are dishonored. Ergo,
the former owner has a right to resume the possession of them, and reclaim
them from a bonâ fide owner by a decree of a court of equity.
This is the legal argument, when put in the form of a
logical sorites, by which Texas invokes our aid to assist her in the
perpetration of this great wrong.
A court of chancery is said to be a court of conscience; and
however astute may be the argument introduced to defend this decree, I
can only say that neither my reason nor my conscience can give assent to it.
Mr. Justice SWAYNE :
I concur with my brother Grier as to the incapacity of the
State of Texas, in her present condition, to maintain an original suit in this
court. The question, in my judgment, is one in relation to which this court is
bound by the action of the legislative department of the government.
Upon the merits of the case, I agree with the majority of my
brethren.
I am authorized to say that my brother MILLER unites with me
in these views.
THE DECREE.
The decree overruled the objection interposed by way of
plea, in the answer of defendants to the authority of the solicitors of the
complainant to institute this suit, and to the right of Texas, as one of the
States of the National Union, to bring a bill in this court.
It declared the contract of 12th January, 1865, between the
Military Board and White and Chiles void, and enjoined White and Chiles from
asserting any claim under it, and decreed that the complainant was entitled to
receive the bonds and coupons mentioned in the contract, as having been
transferred or sold to White and Chiles, which, at the several times of service
of process, in this suit, were in the possession, or under the control of the
defendants respectively, and any proceeds thereof which had come into such
possession or control, with notice of the equity of the complainant.
It enjoined White, Chiles, Hardenberg, Birch, Murray, Jr.,
and other defendants, from setting up any claim to any of the bonds and coupons
attached, described in the first article of said contract, and that the
complainant was entitled to restitution of such of the bonds and coupons and
proceeds as had come into the possession or control of the defendants
respectively.
And the court, proceeding to determine for which and how
many bonds the defendants respectively were accountable to make restitution of,
or make good the proceeds of, decreed that Birch and Murray were so accountable
for eight, numbered in a way stated in the decree, with coupons attached; and
one Stewart (a defendant mentioned in the note at page 702), accountable for
four others, of which the numbers were given, with coupons; decreed that Birch
and Murray, as also Stewart, should deliver to the complainant the bonds for
which they were thus made accountable, with the coupons, and execute all
necessary transfers and instruments, and that payment of those bonds, or any of
them, by the Secretary of the Treasury, to the complainant, should be an
acquittance of Birch and Murray, and of Stewart, to that extent, and that for
such payment this decree should be sufficient warrant to the secretary.
And, it appearing—the decree went on to say—upon the
pleadings and proofs, that before the filing of the bill, Birch and Murray had
received and collected from the United States the full amount of four other bonds,
numbered, &c., and that Hardenberg, before the commencement of the suit,
had deposited thirty-four bonds, numbered, &c., in the Treasury Department
for redemption, of which bonds he claimed to have received payment from the
Secretary of the Treasury before the service of process upon him in this suit,
in respect to which payment and the effect thereof the counsel for the said Birch
and Murray, and for the said Hardenberg respectively, desired to be heard, it
was ordered that time for such hearing should be given to the said parties.
Both the complainant and the defendants had liberty to apply
for further directions in respect to the execution of the decree.
_______________
1 These were Stewart, Shaw, &c., who made no
resistance by counsel at the argument.
Statement of the case.
2 For a particular account of these bonds, see
Paschal's Annotated Digest Arts. 442-450.
Statement of the case.
3 See this last, infra, foot of p. 742.
4 Acts of Texas, 1862, p. 45.
5 Texas Laws, 55.
6 Mr. Justice Paterson, in Penhallow v. Doane's
Admrs., 3 Dallas, 93.
7 Paschal's Digest Laws of Texas, 78.
8 Id. 80.
9 Laws of Texas, 1859–61, p. 11.
10 Paschal's Digest, 80.
11 Texas Reports of the Committee (Library of
Congress), 45.
12 County of Lane v. The State of Oregon, supra,
p. 76.
13 13 Stat. at Large, 737
14 Ib. 758.
15 Ib. 774-5.
16 Luther v. Borden, 7 Howard, 42.
17 14 Stat. at Large, 428.
18 2 Wallace, 118.
19 Brown v. Davies, 3 Term, 80; Goodman v.
Simonds, 20 Howard, 866.
20 See the decree, infra, p. 741.
21 2 Crunch, 452. WOL. VII, 47
22 Prize Cases, 2 Black, 673.
SOURCE: Cases Argued and Adjudged in the Supreme Court of the United
States, p. 700-43
