Philosophy Radio! drlabasham777's Podcast
Society & Culture:Philosophy
Hi Social and Political philosophers,
Today’s word is “secede”, as in “Texas, Secede". It means to withdraw or to leave some organization, group or political system. Here, the United States. So we are talking about multi-life “contracts”. Did your great grandparents morally obligate you to a system of rules, before they met you, or ever would or could?
John Rawls is using the idea of “social contract” theory in his answer to the issue of brute luck. Now I have never entered into a contract with US government to obey each and all of its laws. Yet Rawls is based on what he takes to be, and understandably, a timeless notion of “Justice as Fairness”. And when that breaks down, what happens? So as a fascinating digression, we will address the popular thought that we, the Republic of Texas, should secede from the United States. Other states have proposed secession in all or part. Interesting. What is the role of Social and Political Philosophy? As the foundation, Social and Political Philosophy’s role is total.
Suppose your great great grandmother said you have to do this or do that, does that mean you have to?
Cheers~
Dr. Lee Basham
For our future Lawyers and informed citizens, and we need you, Texas v. White et al. I'd start at 99. Ignore the bond stuff. That's not where the action is. 99. Wow. Seriously? If you don't want to read it, no worries, scroll to the podcast below it.
TEXAS v. WHITE ET AL.
74 U.S. 700
19 L.Ed. 227
7 Wall. 700
TEXAS
v.
WHITE ET AL.
December Term, 1868
1
[Syllabus from pages 700-702 intentionally omitted]
2
ON original bill.
3
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.
4
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:
5
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
6
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.'
7
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.
8
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.
9
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.
10
Thus was established the rebel government of Texas.
11
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 vicepresident
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.
12
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.
13
On the same day the legislature passed a further act, entitled '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 of the State;' and
passed an additional act repealing the act which made an indorsement of the bonds
by the governor of Texas necessary to make them available in the hands of the
holder.
14
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.
15
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 thirtyfive
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.
16
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.
17
Under the provisional government thus established, the people proceeded to make a
constitution, and reconstruct their State government.
18
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.
19
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.
20
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.
21
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.
22
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.
23
As respected White & Chiles, who had now largely parted with the bonds, the case
rested much upon what precedes, and their own answers.
24
The answer of CHILES, declaring that he had none of the bonds in his possession, set
forth:
25
1. That there was no sufficient authority shown to prosecute the suit in the name of
Texas.
26
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.
27
3. That whether the government of Texas, during the term in question, was one de
jure or de facto, it had authorized the military board to act for it, and that the State
was estopped from denying its acts.
28
4. That no indorsement of the bonds was necessary, they having been negotiable
paper.
29
5. That the articles which White & Chiles had agreed to give the State, were
destroyed in transitu, by disbanded troops, who infested Texas, and that the loss of
the articles was unavoidable.
30
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.'
31
As respected HARDENBERG, the case seemed much thus:
32
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.'
33
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:
34
'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. Hardenbery 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.
35
'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.'
36
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.
37
Hardenberg's own account of the matter, as declared by his answer, was thus:
38
'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 1/4, 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.
39
'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.'
40
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.'
41
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.
42
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.
43
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.
44
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——
45
'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 bon a 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.'
46
The answer said further, that——
47
'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 were taken in good faith.'
48
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:
49
'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
cant'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:
50
NEW YORK, June 25th, 1865.
51
HON. J. R. BARRET.
52
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.
53
Yours truly,
54
A. J. HAMILTON.'
55
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:
56
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.
57
2. A great and principal one; a question of jurisdiction, viz., whehter 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.
58
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 bon a fide and for value, of paper payable 'to
bearer,' held it discharged of precedent equities.
59
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.
60
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.
61
The CHIEF JUSTICE delivered the opinion of the court.
62
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.
63
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 livered 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.
64
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.
65
Such is a brief outline of the case. It will be necessary hereafter to refer more in
detail to some particular circumstances of it.
66
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.
67
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.
68
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.
69
If, therefore, it is true that the State of Texas was not at he 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.
70
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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.
71
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.
72
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.
73
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.
74
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.
75
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.
76
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.
77
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.
78
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.
79
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.
80
In this clause a plain distinction is made between a State and the government of a
State.
81
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.
82
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.
83
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.
84
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.'
85
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.
86
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.'
87
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 orgnaized 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
88
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.
89
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.
90
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.
91
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.
92
The governor and secretary of state, refusing to comply, were summarily ejected
from office.
93
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.
94
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.
95
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.
96
The position thus assumed could only be amintained 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.
97
Did Texas, in consecuence of these acts, cease to be a State? Or, if not, did the State
cease to be a member of the Union?
98
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.
99
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?
100
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 cthe 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.
101
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.
102
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.
103
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.
104
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 governmet, so far as least as the institution and prosecution of a suit is
concerned.
105
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.
106
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.
107
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.
108
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.
109
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 amnesty13 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
110
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.
111
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.
112
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.
113
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.
114
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 commanderin-
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.
115
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.'
116
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.
117
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 Reconsturction 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.'
118
Nothing in the case before us requires the court to pronounce judgment upon the
constitutionality of any particular provision of these acts.
119
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.
120
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.
121
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.
122
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.
123
The question of jurisdiction being thus disposed of, we proceed to the consideration of
the merits as presented by the pleadings and the evidence.
124
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?
125
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.
126
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?
127
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.
128
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.
129
What, then, tried by these general tests, was the character of the contract of the
military board with White and Chiles?
130
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.
131
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.'
132
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, to this repealing
act.
133
It follows that the title of the State was not divested by the act of the insurgent
government in entering into this contract.
134
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.
135
Does the State, then, show affirmatively notice to these defendants of want of title to
the bonds in White and Chiles?
136
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.
137
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
138
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.
139
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.
140
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.
141
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.
142
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.
143
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.
144
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
145
Mr. Justice GRIER, dissenting.
146
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.
147
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.
148
Is Texas one of these United States? Or was she such at the time this bill was filed, or
since?
149
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.
150
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. Ellxey.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:
151
'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
shall appoint, for the election of the executive, a number of electors equal to its
whole number of senators and representatives. These clauses show that 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.'
152
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.
153
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.'
154
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.
155
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 bon a 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.
156
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.
157
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.'
158
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.
159
But the case of Hardenberg differs from that of the other defendants. He purchased
the bonds in open market, bon a 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
bon a fide owner by a decree of a court of equity.
160
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.
161
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:
162
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.
163
Upon the merits of the case, I agree with the majority of my brethren.
164
I am authorized to say that my brother MILLER unites with me in these views.
165
THE DECREE.
166
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.
167
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.
168
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.
169
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.
170
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.
171
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.
2
For a particular account of these bonds, see Paschal's Annotated Digest, Arts. 442-
450.
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, 366.
20
See the decree, infra, p. 741.
21
2 Cranch, 452.
22
Prize Cases, 2 Black, 673.
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