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lars, dimes, cents, and mills, and that all accounts I go a step further than this, and agree that the in the public offices, and all proceedings in the legal effect of the contract, as the law stood when courts of the United States, shall be kept and had it was made, was that it should be paid in coin, in conformity to these regulations."

and could be paid in nothing else. This was the This regulation is part of the first coinage act, conjoint effect of the contract of the parties and and doubiless has reference to the coins provided the law under which that contract was made. for by it. But it is a general regulation, and re But I do not agree that in this respect the lates to all accounts and all judicial proceedings. contract under consideration differed, either in When, therefore, two descriptions of money are intention of the parties, or in its legal effect, from sanctioned by law, both expressed in dollars and a contract to pay $1,400 without any further deboth made current in payments, it is necessary, scription of the dollars to be paid. in order to avoid ambiguity and prevent a fail The only dollars which, by the laws then in ure of justice, to regard this regulation as appli- force, or which ever had been in force since the cable alike to both. When, therefore, contracts adoption of the federal Constitution, could have made payable in coin are sued upon, judgments been lawfully tendered in payment of any may be entered for coined dollars and parts of contract simply for dollars, were gold and sil dollars: and when contracts have been made ver. payable in dollars generally, without specifying These were the “lawful money of the United in what description of currency payment is to States” mentioned in the contract, and the spebe inade, judgments may be entered generally, cial reference to them gave no effect to that without such specification.

contract beyond what the law gave. We have already adopted this rule as to judg. The contract then did not differ, in its legal ments for duties by afirming a judgment of the obligation, from any other contract payable in circuit court for the district of California,* in dollars. Much weight is attached in the opinion favor of the United States, for $1.388 10, pay to the special intent of the parties in using the able in gold and silver coin, and judgments for words gold and silver coin, but as I have shown express contracts between individuals for the that the intent thus manifested is only what the payment of coin may be entered in like manner. law would have implied if those words had not

It results that the decree of the court of appeals been used, I cannot see their importance in disof New York must be reversed, and the cause tinguishing this contract from others which omit remanded to that court for further proceedings. these words Certainly every man who at that

Mr. Justice Davis, concurring in the result, day received a note payable in dollars, expected said :

and had a right to expect to be paid "in gold I assent to the result which a majority of the and silver coin, lawful money of the United court have arrived at, that an express contract States," if he chose to demand it. There was to pay coin of the United States, made before therefore no difference in the intention of the the act of February 25, 1862, commonly called parties to such a contract, and an ordinary conthe legal tender aci, is not within the clause of tract for the payment of money, so far as the that act which makes treasury notes a legal right of the payee to exact coin is concerned. tender in payment of debts ; but I think it proper If I am asked why these words were used in to guard against all possibility of misapprehen this case I answer, that they were used out of sion, by stating that if there be any reasoning in abundant caution by some one not familiar with the opinion of the majority which can be appli- the want of power in the States to make legalcable to any other class of contracts, it does not tender laws. It is very well known that under receive my assent.

the system of State banks, which furnished alMr Justice Swayne said:

most exclusively the currency in use for a great I concur in the conclusion announced by the many years prior to the issue of legal-tender Chief Justice.

notes by the United States, there was a differMy opinion proceeds entirely upon the lan-ence between the value of athat currency and guage of the contract and the construction of the gold, even while the bank notes were promptly statutes

redeemed in gold. And it was doubtless to exThe question of the constitutional power of clade any possible assertion of the right to pay Congress, in my judgment, does not arise in the this contract in such bank notes that the words

gold and silver coin were used, and not with Dissenting Opinion.

any reference to a possible change in the laws Mr. Justice Miller, dissenting:

of legal tender established by the United States, I do not agree to the judgment of the court in which had never, during the sixty years that the this case, and shall, without apology, make a present Constitution, declared anything else to

Governinent had been administered under the very brief statement of my reasons for believing be a legal tender or lawful money but gold and that the judgment of the court of appeals of New

silver coin. York should be affirmed. The opinion just read correctly states that the contract in this case, opinion delivered by the chief justice, the effort

But if I correctly apprehend the scope of the made before the passage of the act or acts commonly called the legal-tender acts, was an agreement in gold is only for the purpose of bringing

to prove for this contract a special intent of pay. ment to pay $1,400 "in gold and silver coin, it within the principle there asserted, both by lawful money of the United States." And I agree that it was the intention of both parties all contracts must be paid according to the in

express words and by strong implication, that to this contract that it should be paid in coin. tention of the parties making them. I think I * Cheang-Kee vs. U. S., 3 Wall., 320.

am not mistaken in my recollection that it is

case.

E

convey.

broadly stated that it is the business of courts of ity of an act of the legislature, which, besides justice to enforce contracts as they are intended giving that authority, provided that no bond by the parties, and that the tender must be ac- should be available in the hands of any holder cording to the intent of the contract.

until after endorsement by the governor of the Now, if the argument used to show the intent State. of the parties to the contract is of any value in After the breaking out of the rebellion, the this connection, it is plain that such intent must insurgent legislature of Texas, un the 11th of enter into, and form a controlling element in, January, 1862, repealed the act requiring the the judgment of the court in construing the endorsement of the governor,* and on the same legal tender acts.

day provided for the organization of a military I shall not here consume time by any attempt board, composed of the governor, comptroller, to show that the contract in this case is a debt, and treasurer, and authorized a majority of that or that when Congress said that the notes board to provide for the defence of the State by it was about to issue should be received as a means of any bonds in the treasury, upon any legal tender in payment for all private debts, it account, to the extent of $1,000,000. † intended that which these words appropriately The defence contemplated by the act was to

To assume that Congress did not in be made against the United States by war. tend by that act to authorize a payment by a

Under this authority the military board enmedium differing from that which the parties in- tered into an agreement with George W. White tended by the contract is in contradiction to the and John Chiles, two of the defendants, for the express language of the statute, to the sense in sale to them of one hundred and thirty-five of which it was acted on by the people who paid these bonds, then in the treasury of the Siate, and and received those notes in discharge of con- seventy-six more, then deposited with Droege & tracts for incalculable millions of dollars, where Co., in England, in payment for which they en. gold dollars alone had been in contemplation of gaged to deliver to the board a large quantity of the parties, and to the decisions of the highest cotton cards and medicines. This agreement was courts of fifteen States in the Union, being all made on the 12th of January, 1865. that have passed upon the subject.

On the 12th of March, 1865, White and Chiles As I have no doubt that it was intended by received from the military board one bundred those acts to make the notes of the United States and thirty-five of these bonds, none of which to which they applied a legal tender for all were endorsed by any governor of Texas. private debts then due, or which might become Afterward, in the course of the years 1865 and due on contracts then in existence, without re- 1866, some of the same bonds came into the posgard to the intent of the parties on that point, session of others of the defendants by parchase, I must dissent from the judgment of the court, or as security for advances of money. and from the opinion on which it is founded.

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 Status of the State of Texas.

The first inquiries to which our attention was No. 6 (ORIGINAL.)- DECEMBER TERM, 1868. directed by.counsel arose upon the allegations of

the answer of Chiles, (1,) that no sufficient auThe State of Texas, complamant,

thority is shown for the prosecution of the suit in George W. White, John Chiles, John A. Har

the name and on the behalf of the State of Texas; denberg, Samuel Wolf, George W. Stewart, The Branch of the Commercial Bank

equity. and, (2.) that the State having severed her relaof Kentucky, Western F. Birch, Byron Mur

tions with a majority of the States of the Union, ray, jr., and Shaw.

and having by her ordinance of secession atMr. Chief Justice Chase delivered the opinion tempted to throw off her allegiance to the Conof the court.

stitution and Government of the United States, This is an original suit in this court, in which has so far changed her status as to be disabled the State of Texas, claiming certain bonds of the from prosecuting suits in the national courts. United States as her properiy, asks an injunction the evidence. A letter of authority, the authen

The first of these allegations is disproved by to restrain the defendants from receiving pay: ticity of which is not disputed, lias been proment from the national Government, and to compel the surrender of the bonds to the State.

duced, in which J. W. Throckmorton, elected It appears from the bill, answers, and proofs, governor under the constitution adopted in 1866, tliat the United States, by act of September 9, and proceeding under an act of the State legis1850, offered to the State of Texas, in compensa: and confirms the action of the solicitors who filed

lature relating to these bonds, expressly ratifies tion for her claims connected with the settlement the bill, and empowers them to prosecute this of her boundary, $10,000,000 in five-per-cent. bonds, each for the sum of $1,000, and that this suit; aud it is further proved by the affidavit of offer was accepted by Texas.

Mr. Paschal, counsel for the complainant, that One-half of these bonds were retained for cer: while provisional governor of Texas, to represent

he was duly appointed by Andrew J. Hamilton, tain purposes in the national treasury, and the the State of Texas in reference to the bonds in other half were delivered to the State.

The bonds thus delivered were dated January controversy, and that his appointment has been 1, 1851, and were all made payable to the State renewed by E. M. Pease, the actual governor

. of Texas, or bearer, and redeemable after the If Texas was a State of the Union at the time of 31st day of December, 1864.

these acts, and these persons, or either of them, They were received, in behalf of the State, by

were competent to represent the State, this proof the comptroller of public accounts, under author * Acts of Texas, 1862, p. 45. + Texas Laws, p. 55.

18.

Bill in

leaves no doubt upon the question of author- States under a common constitution which forms ity.

the distinct and greater political unit which that The other allegation presents a question of Constitution designates as the United States, and jurisdiction. It is not to be questioned that this makes of the people and States which compose it court has original jurisdiction of suits by States one people and one country. against citizens of other States, or that the States The use of the word in this sense hardly reentitled to invoke this jurisdiction must be States quires further remark. In the clauses which of the Union. But it is equally clear that no impose prohibitions upon the States in respect to such jurisdiction has been conferred upon this the making of treaties, emitting of bills of credit, court of suits by any other political communities laying duties of tonnage, and which guaranty than such States.

to the States representation in the House of RepIf, therefore, it is true that the State of Texas resentatives and in the Senate, are found some was not at the time of filing this bill, or is not instances of this use in the Constitution. Others now, one of the United States, we have no juris- will occur to every mind. diction of this suit, and it is our duty to dismiss it. But it is also used in its geographical sense, as

We are very sensible of the magnitude and in the clauses which require that a representaimportance of this question, of the interest it ex- tive in Congress shall be an inbabitant of the cites, and of the difficulty, not to say impossi- State in which he shall be chosen, and that the bility, of so disposing of it as to satisfy the trial of crimes shall be held within the State conflicting judgments of men equally enlight- where committed. ened, equally upright, and equally patriotic. And there are instances in which the principal But we meet it in the case, and we must de- sense of the word seems to be that primary one termine it in the exercise of our best judgment, to which we have adverted, of a people or politiunder the guidance of the Constitution alone. cal community, as distinguished from a govern

Some not unimportant aid, however, in ascer- ment. taining the true sense of the Constitation, may In this latter sense the word seems to be used be derived from considering what is the correct in the clause which provides that the United idea of a State, apart from any union or cop fed States shall guaranty to every State in the eration with other States. The poverty of lan- Union a republican form of government, and guage often compels the employment of terms in shall protect each of them against invasion. quite different significations; and of this hardly In this clause a plain distinction is made beany example more signal is to be found than in tween a State and the government of a State. the use of the word we are now considering. It Having thus ascertained the senses in which would serve no useful purpose to attempt an the word State is employed in the Constitution, enumeration of all the various senses in which we will proceed to consider the proper applicait is used. A few only need be noticed. tion of what has been said.

It describes sometimes a people or community The republic of Texas was admitted into the of individuals united more or less closely in polit- Union as a State on the 27th of December, 1845. ical relations, inhabiting temporarily or perma. By this act the new State, and the people of the nently the same country; often it denotes only new State, were invested with all the rights, and the country or territorial region inhabited by became subject to all the responsibilities and dusuch a community; not unfrequently it is ap- ties, of the original States under the Constitution. plied to the government under which the people From the date of admission until 1861, the live ; at other times it represents the combined State was represented in the Congress of the idea of people, territory, and government.

United States by her Senators and RepresentaIt is not difficult to see that in all these senses tives, and her relations as a member of the the primary conception is that of a people or Union remained unimpaired. In that year, actcommunity. The people, in whatever territory ing upon the theory that the rights of a State dwelling, either temporarily or permanently, and under the Constitution might be renounced, and whether organized under a regular government, her obligations thrown off at pleasure, Texas or united by looser and less definite relations, undertook to sever the bond thus formed, and to constitute the State.

break up her constitutional relations with the This is undoubtedly the fundamental idea upon United States. which the republican institutions of our own On the 1st of February* a convention, called country, are established. It was stated very without authority, but subsequently sanctioned clearly by an eminent judge* in one of the ear- by the legislature regularly elected, adopted an liest cases adjudicated by this court, and we are ordinance to dissolve the union between the not aware of anything in any subsequent decis- State of Texas and the other States under the ion of a different tenor.

Constitution of the United States, whereby In the Constitution the term State most fre- Texas was declared to be " a separate and sovequently expresses the combined idea just noticed, reign State," and "her people and citizens" to of people, territory, and government. A State, be absolved from all allegiance to the United in the ordinary sense of the Constitution, is a States or the Government thereof." political community of free citizens, occupying a It was ordered by a vote of the conventiont territory of defined boundaries, and organized and by an act of the legislature, that this ordiunder a government sanctioned and limited by nance should be submitted to the people, for apa written constitution, and established by the proval or disapproval, on the 23d of February, consent of the governed. It is the union of such 1861.

Mr. Justice Paterson, in Penhallow vs. Doane's * Paschal's Digest Laws of Texas, 78. † Paschal's Admrs. 3 Dall., 93.

Digest, 80. #Laws of Texas, 1859-61, p. 11.

Without awaiting, however, the decision thus The representatives of the State in the Coninvoked, the convention, on the 4th of Febru- gress of the United States were withdrawn, and, ary, adopted a resolution, designating seven del as soon as the seceded States became organized egates to represent the State in the convention under a constitution, Texas sent senators and of seceding States at Montgomery, "in order," representatives to the confederate congress. as the resolution declared, " that the wishes and In all respects, so far as the object could be interests of the people of Texas may be con accomplished by ordinances of the convention, sulted in reference to the constitution and pro by acts of the legislature, and by votes of the visional government that may be established by citizens, the relations of Texas to the Union were said convention.”

broken up, and new relations to a new governBefore the passage of this resolution the con- ment were established for them. vention had appointed a committee of public The position thus assumed could only be mainsafety, and adopted an ordinance giving au- tained by arms, and Texas accordingly took part thority to that committee to take measures for with the other Confederate States in the war of obtaining possession of the property of the the rebellion which these events made inevitable. United States in Texas, and for removing the During the whole of that war there was no gov. national troops from her limits. The members ernor, or judge, or any other State officer in Texas of the committee, and all officers and agents ap- who recognized the national authority. Nor was pointed or employed by it, were sworn to secrecy any officer of the United States permitted to exand to allegiance to the State.* Commissioners ercise any authority whatever under the national were at once appointed, with instructions to re-Government within the limits of the State, except pair to the beadquarters of General Twiggs, under the immediate protection of the national then representing the United States in command military forces. of the department, and to make the demands Did Texas in consequence of these acts cease necessary for the accomplishment of the pur to be a State? Or, if not, did the State cease to poses of the committee. A military force was be a member of the Union ? organized in support of these demands, and an It is needless to discuss at length the question arrangement was effected with the commanding whether the right of a State to withdraw from general by which the United States troops were the Union for any cause regarded by herself as engaged to leave the State, and the forts and all sufficient is consistent with the Constitution of the public property, not necessary to the removal | the United States. of the troops, were surrendered to the commis The Union of the States never was a purely sioners.

artificial and arbitrary relation. It began among These transactions took place between the 20 the colonies, and grew out of common origin, and the 18th of February, and it was under these mutual sympathies, kindred principles, similar circumstances that the vote upon the ratification interests, and geographical relations. It was or rejection of the ordinance of secession was confirmed and strengthened by the necessities of taken on the 23d of February. It was ratified war, and received definite form, and character, by a majority of the voters of the State. and sanction, from the Articles of Confederation.

The convention, which had adjourned before By these the Union was solemnly declared to the vote was taken, reassembled on the 2d of "be perpetual." And, when these articles were March, and instructed the delegates already sent found to be inadequate to the exigencies of the to the congress of the seceding States to apply country, the Constiiution was ordained " to form for admission into the confederation, and to give a more perfect Union.” It is difficult to convey the adhesion of Texas to its provisional constitu. the idea of indissoluble unity more clearly than tion:

by these words. What can be indissoluble, if a It proceeded, also, to make the changes in the perpetual Union made more perfect is not ? Stale constitution which this adhesion made But the perpetuity and indissolubility of the necessary The words "United States” were Union by no means implies the loss of distinct stricken out wherever they occurred, and the and individual existence, or of the right of selfwords "Confederate States" substituted; and government, by the States. Under the Articles the members of the legislature, and all officers of Confederation each State retained its sov. of the State, were required by the new constitu- ereignty, freedom, and independence, and every tion to take an oath of fidelity to the constitution power, jurisdiction, and right, not expressly and laws of the new confederacy.

delegated to the United States. Under the ConBefore, indeed, these changes in the constitu- stitution, though the powers of the States were tion had been completed, the officers of the State much restricted, still all powers not delegated to had been required to appear before the commit- the United States, nor prohibited to the States, tee and take an oath of allegiance to the Confed- are reserved to the States respectively, or to the erate States.

people. And we have already had occasion to The governor and secretary of state, refusing remark at this term, that the people of each to comply, were summarily ejected from office. State compose a State, having its own govern

The members of the legislature, which had also ment, and endowed with all the functions essenadjourned and reassembled on the 18th of March, tial to separate and independent existence; were more compliant. They took the oath, and and that without the States in union there proceeded, on the 8th of April, to provide by could be no such political body as the United law for the choice of electors of president and States."'* Not only, therefore, can there be no vice president of the Confederate states. loss of separate and independent autonomy to

* Paschal's Digest, 80. † Texan Reports of the Committee, (Lib. of Con.,) p. 45,

*County of Lane vs. The State of Oregon.

the States, through their union under the Con- | And the same must necessarily be true of the stitution, but it may be not unreasonably said obligations and relations of States and citizens that the preservation of the States and the to the Union. No one has been bold enough to maintenance of their governments are as much contend that, while Texas was controlled by a within the design and care of the Constitution Government hostile to the United States, and, as the preservation of the Union and the main- in affiliation with a hostile confederation, waging tenance of the national Government. The Con- war upon the United States, senators chosen by stitution, in all its provisions, looks to an inde her legislature, or representatives elected by her structible Union, composed of indestructible citizens, were entitled to seats in Congress; or States.

that any suit instituted in her name could be When, therefore, Texas became one of the entertained in this court. All admit that, United States, she entered into an indissoluble during this condition of civil war, the rights of relation. All the obligations of perpetual union, the State as a member and of her people as and all the guaranties of republican government citizens of the Union, were suspended. The in the Union, attached at once to the State. The Government and the citizens of the State refusact which consummated her admission into the ing to recognize their constitutional obligations Union was something more than a compact-it assumed the character of enemies and incurred was the incorporation of a new member into the the consequences of rebellion. political body, and it was final. The union be These new relations imposed new duties upon tween Texas and the other States was as com- the United States. The first was that of supplete, as perpetual, and as indissoluble as the pressing the rebellion. The next was that of union between the original States. There was re-establishing the broken relations of the State no place for reconsideration or revocation, except with the Union. The first of these duties havthrough revolution or through consent of the ing been performed, the next necessarily engaged States.

the attention of the national Government. Considered, therefore, as transactions under The authority for the performance of the first the Constitution, the ordinance of secession had been found in the power to suppress insuradopted by the convention and ratified by a ma-rection and carry on war; for the performance jority of the citizens of Texas, and all the acts of the second, authority was derived from the of her legislature intended to give effect to that obligation of the United States to guaranty to ordinance, were absolutely null. They were every State in the Union a republican form of utterly without operation in law. The obliga- government. The latter, indeed, in the case of tions of the State as a member of the Union, and a rebellion, which involves the government of a of every citizen of the State as a citizen of the State, and, for the time, excludes the national United States, remained perfect and unimpaired. authority from its limits, seems to be a necessary It certainly follows that the State did not cease complement to the former. to be a State nor her citizens to be citizens of the of this the case of Texas furnishes a striking Union. If this were otherwise, the State must illustration. When the war closed there was no have become foreign and her citizens foreigners; government in the State except that which had the war must have ceased to be a war for the been organized for the purpose of waging war suppression of rebellion, and must have become against the United States. That government a war for conquest and subjugation.

immediately disappeared. The chief functionOur conclusion, therefor is, that Texas con- aries left the State. Many of the subordinate tinued to be a State, and a State of the Union, officials followed their example. Legal responsinotwithstanding the transactions to which we bilities were annulled or greatly impaired. It have referred. And this conclusion, in our was inevitable that great confusion should prejudgment, is not in conflict with any act or vail. If order was maintained, it was where declaration of any department of the national the good sense and virtue of the citizens gave Government, but entirely in accordance with support to local acting magistrates, or supplied the whole series of such acts and declarations more directly the needful restraints. since the first outbreak of the rebellion.

A great social change increased the difficulty But in order to the exercise by a State of the of the situation. Slaves in the insurgent States, right to sue in this court, there needs to be a with certain local exceptions, had been declared State government competent to represent the free by the proclamation of emancipation, and State in its relations with the national Govern- whatever questions might be made as to the effect ment, so far, at least, as the institution and pros- of that act

, under the Constitution, it was clear ecution of a suit is concerned.

from the beginning that its practical operation, in And it is by no means a logical conclusion, connection with legislative acts of lika tendency, from the premises which we have endeavored to must be complete enfranchisement. Wherever establish, that the governmental relations of the national forces obtained control, the slaves Texas to the Union remained unaltered. Obli- became freemen. Support to the acts of Congations often remain unimpaired, while relations gress and the proclamation of the President con: are greatly changed. The obligations of alle-cerning slaves was made a condition of amnesty* giance to the State and of obedience to her laws, by President Lincoln, in December, 1863, and by subject to the Constitution of the United States, President Johnson, in May, 1865.† And emanare binding upon all citizens, whether faithful cipation was confirmed, rather than ordained, in or unfaithful to them; but the relations which the insurgent States, by the amendment to the subsist while these obligations are performed Constitution prohibiting slavery throughout the are essentially different from those which arise when they are disregarded and set at nought. * 13 U. S. Stat., 737. †13 U.S. Stat., 758

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