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lars, dimes, cents, and mills, and that all accounts in the public cffices, and all proceedings in the courts of the United States, shall be kept and had in conformity to these regulations."

This regulation is part of the first coinage act, and doubtless has reference to the coins provided for by it. But it is a general regulation, and relates to all accounts and all judicial proceedings. When, therefore, two descriptions of money are sanctioned by law, both expressed in dollars and both made current in payments, it is necessary, in order to avoid ambiguity and prevent a failure of justice, to regard this regulation as applicable alike to both. When, therefore, contracts made payable in coin are sued upon, judgments may be entered for coined dollars and parts of dollars and when contracts have been made payable in dollars generally, without specifying in what description of currency payment is to be made. judgments may be entered generally, without such specification.

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We have already adopted this rule as to judgments for duties by affirming a judgment of the circuit court for the district of California, in favor of the United States, for $1.388 10, payable in gold and silver coin, and judgments for express contracts between individuals for the payment of coin may be entered in like manner. It results that the decree of the court of appeals of New York must be reversed, and the cause remanded to that court for further proceedings. Mr. Justice Davis, concurring in the result,

said:

I go a step further than this, and agree that the legal effect of the contract, as the law stood when it was made, was that it should be paid in coin, and could be paid in nothing else. This was the conjoint effect of the contract of the parties and the law under which that contract was made.

But I do not agree that in this respect the contract under consideration differed, either in intention of the parties, or in its legal effect, from a contract to pay $1,400 without any further description of the dollars to be paid.

The only dollars which, by the laws then in force, or which ever had been in force since the adoption of the federal Constitution, could have been lawfully tendered in payment of any contract simply for dollars, were gold and sil ver.

These were the "lawful money of the United States" mentioned in the contract, and the special reference to them gave no effect to that contract beyond what the law gave.

The contract then did not differ, in its legal obligation, from any other contract payable in dollars. Much weight is attached in the opinion to the special intent of the parties in using the words gold and silver coin, but as I have shown that the intent thus manifested is only what the law would have implied if those words had not been used, I cannot see their importance in distinguishing this contract from others which omit these words Certainly every man who at that day received a note payable in dollars, expected and had a right to expect to be paid "in gold and silver coin, lawful money of the United States," if he chose to demand it. There was therefore no difference in the intention of the parties to such a contract, and an ordinary contract for the payment of money, so far as the right of the payee to exact coin is concerned. If I am asked why these words were used in this case I answer, that they were used out of abundant caution by some one not familiar with the want of power in the States to make legaltender laws. It is very well known that under the system of State banks, which furnished almost exclusively the currency in use for a great many years prior to the issue of legal-tender notes by the United States, there was a differMy opinion proceeds entirely upon the lan-ence between the value of that currency and guage of the contract and the construction of the

I assent to the result which a majority of the court have arrived at, that an express contract to pay coin of the United States, made before the act of February 25, 1862, commonly called the legal tender act, is not within the clause of that act which makes treasury notes a legal tender in payment of debts; but I think it proper to guard against all possibility of misapprehen sion, by stating that if there be any reasoning in the opinion of the majority which can be applicable to any other class of contracts, it does not receive my assent.

Mr Justice Swayne said:

I concur in the conclusion announced by the Chief Justice.

statutes

The question of the constitutional power of Congress, in my judgment, does not arise in the

case.

Dissenting Opinion.

gold, even while the bank notes were promptly redeemed in gold. And it was doubtless to exclude any possible assertion of the right to pay this contract in such bank notes that the words gold and silver coin were used, and not with any reference to a possible change in the laws of legal tender established by the United States, which had never, during the sixty years that the

Government had been administered under the present Constitution, declared anything else to be a legal tender or lawful money but gold and

silver coin.

Mr. Justice Miller, dissenting: I do not agree to the judgment of the court in this case, and shall, without apology, make a very brief statement of my reasons for believing that the judgment of the court of appeals of New 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 com- to prove for this contract a special intent of paymonly called the legal-tender acts. was an agreement in gold is only for the purpose of bringing 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 inexpress 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 am not mistaken in my recollection that it is

* Cheang-Kee vs. U. S., 3 Wall., 320.

E

broadly stated that it is the business of courts of justice to enforce contracts as they are intended by the parties, and that the tender must be according to the intent of the contract.

Now, if the argument used to show the intent of the parties to the contract is of any value in this connection, it is plain that such intent must enter into, and form a controlling element in, the judgment of the court in construing the legal tender acts.

I shall not here consume time by any attempt to show that the contract in this case is a debt, or that when Congress said that the notes it was about to issue should be received as a legal tender in payment for all private debts, it intended that which these words appropriately convey. To assume that Congress did not intend by that act to authorize a payment by a medium differing from that which the parties intended by the contract is in contradiction to the express language of the statute, to the sense in which it was acted on by the people who paid and received those notes in discharge of contracts for incalculable millions of dollars, where gold dollars alone had been in contemplation of the parties, and to the decisions of the highest courts of fifteen States in the Union, being all that have passed upon the subject.

As I have no doubt that it was intended by those acts to make the notes of the United States to which they applied a legal tender for all private debts then due, or which might become due on contracts then in existence, without regard to the intent of the parties on that point, I must dissent from the judgment of the court, and from the opinion on which it is founded.

The Status of the State of Texas.
No. 6 (ORIGINAL.)-DECEMBER TERM, 1868.
The State of Texas, complamant,

vs.

George W. White, John Chiles, John A. Hardenberg, Samuel Wolf, George W. Stewart, The Branch of the Commercial Bank of Kentucky, Western F. Birch, Byron Murray, jr., and Shaw.

Bill in

Mr. Chief Justice Chase delivered the opinion

of the court.

ity 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 endorsement by the governor of the State.

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After the breaking out of the rebellion, the insurgent legislature of Texas, on the 11th of January, 1862, repealed the act requiring the endorsement of the governor, 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+

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 endorsed by any governor of Texas.

Afterward, in the course of the years 1865 and 1866, some of the same bonds came into the possession of others of the defendants by purchase, or as security for advances of money.

Such is a brief outline of the case. It will be necessary hereafter to refer more in detail to some particular circumstances of it.

The first inquiries to which our attention was directed by counsel arose upon the allegations of the answer of Chiles, (1,) that no sufficient authority is shown for the prosecution of the suit in the name and on the behalf of the State of Texas; equity. and, (2) that the State having severed her relations with a majority of the States of the Union, and having by her ordinance of secession attempted to throw off her allegiance to the Constitution and Government of the United States, has so far changed her status as to be disabled from prosecuting suits in the national courts. The first of these allegations is disproved by ticity of which is not disputed, has been proA letter of authority, the authenduced, in which J. W. Throckmorton, elected It appears from the bill, answers, and proofs, governor under the constitution adopted in 1866, that the United States, by act of September 9, lature relating to these bonds, expressly ratifies 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 tion for her claims connected with the settlement of her boundary, $10,000,000 in five-per-cent. bonds, each for the sum of $1,000, and that this offer was accepted by Texas.

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 pay

ment from the national Government, and to compel the surrender of the bonds to the State.

One-half of these bonds were retained for cer

tain purposes in the national treasury, and the

other half were delivered to the State.

The bonds thus delivered were dated January 1, 1851, and were all made payable to the State of Texas, or bearer, and redeemable after the 31st day of December, 1864.

They were received, in behalf of the State, by the comptroller of public accounts, under author

the evidence.

the bill, and empowers them to prosecute this suit; aud 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 *Acts of Texas, 1862, p. 45. †Texas Laws, p. 55.

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

The other allegation presents a question of jurisdiction. It is not to be questioned that this court has original jurisdiction of suits by States against citizens of other States, or that the States entitled to invoke this jurisdiction must be States of the Union. But it is equally clear that no such jurisdiction has been conferred upon this court of suits by any other political communities

than such States.

If, therefore, it is true that the State of Texas was not at the time of filing this bill, or is not now, one of the United States, we have no jurisdiction of this suit, and it is our duty to dismiss it. We are very sensible of the magnitude and importance of this question, of the interest it excites, and of the difficulty, not to say impossibility, of so disposing of it as to satisfy the conflicting judgments of men equally enlightened, equally upright, and equally patriotic. But we meet it in the case, and we must determine it in the exercise of our best judgment, under the guidance of the Constitution alone.

Some not unimportant aid, however, in ascertaining the true sense of the Constitution, may be derived from considering what is the correct idea of a State, apart from any union or confederation with other States. The poverty of language often compels the employment of terms in quite different significations; and of this hardly any example more signal is to be found than in the use of the word we are now considering. It would serve no useful purpose to attempt an enumeration of all the various senses in which it is used. A few only need be noticed.

It describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or perma nently the same country; often it denotes only the country or territorial region inhabited by such a community; not unfrequently it is applied to the government under which the people live; at other times it represents the combined idea of people, territory, and government.

It is not difficult to see that in all these senses the primary conception is that of a people or community. The people, in whatever territory dwelling, either temporarily or permanently, and whether organized under a regular government, or united by looser and less definite relations, constitute the State.

This is undoubtedly the fundamental idea upon which the republican institutions of our own country are established. It was stated very clearly by an eminent judge in one of the earliest cases adjudicated by this court, and we are not aware of anything in any subsequent decision of a different tenor.

In the Constitution the term State most frequently expresses the combined idea just noticed, of people, territory, and government. A State, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such

Mr. Justice Paterson, in Penhallow vs. Doane's Admrs. 3 Dall., 93.

the distinct and greater political unit which that Constitution designates as the United States, and makes of the people and States which compose it one people and one country.

The use of the word in this sense hardly requires further remark. In the clauses which impose prohibitions upon the States in respect to the making of treaties, emitting of bills of credit, laying duties of tonnage, and which guaranty to the States representation in the House of Representatives and in the Senate, are found some instances of this use in the Constitution. Others will occur to every mind.

But it is also used in its geographical sense, as in the clauses which require that a representative in Congress shall be an inhabitant of the State in which he shall be chosen, and that the trial of crimes shall be held within the State where committed.

And there are instances in which the principal sense of the word seems to be that primary one to which we have adverted, of a people or political community, as distinguished from a government.

In this latter sense the word seems to be used in the clause which provides that the United States shall guaranty to every State in the Union a republican form of government, and shall protect each of them against invasion.

In this clause a plain distinction is made between a State and the government of a State.

Having thus ascertained the senses in which the word State is employed in the Constitution, we will proceed to consider the proper application of what has been said.

The republic of Texas was admitted into the Union as a State on the 27th of December, 1845. By this act the new State, and the people of the new State, were invested with all the rights, and became subject to all the responsibilities and duties, of the original States under the Constitution.

From the date of admission until 1861, the State was represented in the Congress of the United States by her Senators and Representatives, and her relations as a member of the Union remained unimpaired. In that year, acting upon the theory that the rights of a State under the Constitution might be renounced, and her obligations thrown off at pleasure, Texas undertook to sever the bond thus formed, and to break up her constitutional relations with the United States.

On the 1st of February* 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."

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It was ordered by a vote of the convention and by an act of the legislature, that this ordinance should be submitted to the people, for approval or disapproval, on the 23d of February, 1861.

Paschal's Digest Laws of Texas, 78. † Paschal's Digest, 80. Laws of Texas, 1859-61, p. 11.

as soon as the seceded States became organized under a constitution, Texas sent senators and representatives to the confederate congress.

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 delegates to represent the State in the convention of seceding States at Montgomery, "in order," as the resolution declared, that the wishes and interests of the people of Texas may be consulted in reference to the constitution and provisional government that may be established by said convention."

Before the passage of this resolution the convention had appointed a committee of public safety, and adopted an ordinance giving authority to that committee to take measures for obtaining possession of the property of the United States in Texas, and for removing the national troops from her limits. The members of the committee, and all officers and agents appointed or employed by it, were sworn to secrecy and to allegiance to the State. 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 pur poses of the committee. A military force was organized in support of these demands, and an arrangement was effected with the commanding general by which the United States troops were engaged to leave the State, and the forts and all the public property, not necessary to the removal of the troops, were surrendered to the commissioners.†

These transactions took place between the 2d and the 18th of February, and it was under these circumstances that the vote upon the ratification or rejection of the ordinance of secession was taken on the 23d of February. It was ratified by a majority of the voters of the State.

The convention, which had adjourned before the vote was taken, reassembled on the 2d of March, and instructed the delegates already sent to the congress of the seceding States to apply for admission into the confederation, and to give the adhesion of Texas to its provisional constitution:

In all respects, so far as the object could be accomplished by ordinances of the convention, by acts of the legislature, and by votes of the citizens, the relations of Texas to the Union were broken up, and new relations to a new government were established for them.

The position thus assumed could only be maintained by arms, and Texas accordingly took part with the other Confederate States in the war of the rebellion which these events made inevitable. During the whole of that war there was no governor, or judge, or any other State officer in Texas who recognized the national authority. Nor was any officer of the United States permitted to exercise any authority whatever under the national Government within the limits of the State, except under the immediate protection of the national military forces.

Did Texas in consequence of these acts cease to be a State? Or, if not, did the State cease to be a member of the Union?

It is needless to discuss at length the question whether the right of a State to withdraw from the Union for any cause regarded by herself as sufficient is consistent with the Constitution of the United States.

The Union of the States never was a purely artificial and arbitrary relation. It began among the colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction, from the Articles of Confederation. By these the Union was solemnly declared to "be perpetual." And, when these articles were found to be inadequate to the exigencies of the country, the Constitution was ordained "to form a more perfect Union." It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble, if a perpetual Union made more perfect is not?

It proceeded, also, to make the changes in the State 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 sovof the State, were required by the new constituereignty, 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 had been required to appear before the committee and take an oath of allegiance to the Confederate States.

The governor and secretary of state, refusing to comply, were summarily ejected from office.

The members of the legislature, which had also adjourned and reassembled on the 18th of March, were more compliant. They took the oath, and proceeded, on the 8th of April, to provide by law for the choice of electors of president and vice president of the Confederate States.

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

much restricted, still all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term, that the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence;' and that without the States in union there could be no such political body as the United States." Not only, therefore, can there be no loss of separate and independent autonomy to

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*County of Lane vs. The State of Oregon.

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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,

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 main-in affiliation with a hostile confederation, waging tenance of the national Government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.

When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact-it was the incorporation of a new member into the political body, and it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

Considered, therefore, as transactions under the Constitution, the ordinance of secession adopted by the convention and ratified by a ma jority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State as a member of the Union, and of every citizen of the State as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign and her citizens foreigners; the war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.

Our conclusion, therefore, is, that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any act or declaration of any department of the national Government, but entirely in accordance with the whole series of such acts and declarations since the first outbreak of the rebellion.

But in order to the exercise by a State of the right to sue in this court, there needs to be a State government competent to represent the State in its relations with the national Government, so far, at least, as the institution and prosecution of a suit is concerned.

And it is by no means a logical conclusion, from the premises which we have endeavored to establish, that the governmental relations of Texas to the Union remained unaltered. Obligations often remain unimpaired, while relations are greatly changed. The obligations of allegiance to the State and of obedience to her laws, subject to the Constitution of the United States, are binding upon all citizens, whether faithful or unfaithful to them; but the relations which subsist while these obligations are performed are essentially different from those which arise when they are disregarded and set at nought.

war upon the United States, senators chosen by her legislature, or representatives elected by her citizens, were entitled to seats in Congress; or that any suit instituted in her name could be entertained in this court. All admit that, during this condition of civil war, the rights of the State as a member and of her people as citizens of the Union, were suspended. The Government and the citizens of the State refusing to recognize their constitutional obligations assumed the character of enemies and incurred the consequences of rebellion.

These new relations imposed new duties upon the United States. The first was that of suppressing the rebellion. The next was that of re-establishing the broken relations of the State with the Union. The first of these duties having been performed, the next necessarily engaged the attention of the national Government.

The authority for the performance of the first had been found in the power to suppress insurrection and carry on war; for the performance of the second, authority was derived from the obligation of the United States to guaranty to every State in the Union a republican form of government. The latter, indeed, in the case of a rebellion, which involves the government of a State, and, for the time, excludes the national authority from its limits, seems to be a necessary complement to the former.

Of this the case of Texas furnishes a striking illustration. When the war closed there was no government in the State except that which had been organized for the purpose of waging war against the United States. That government immediately disappeared. The chief functionaries left the State. Many of the subordinate officials followed their example. Legal responsibilities were annulled or greatly impaired. It was inevitable that great confusion should prevail. If order was maintained, it was where the good sense and virtue of the citizens gave support to local acting magistrates, or supplied more directly the needful restraints.

A great social change increased the difficulty of the situation. Slaves in the insurgent States, with certain local exceptions, had been declared free by the proclamation of emancipation, and whatever questions might be made as to the effect of that act under the Constitution, it was clear from the beginning that its practical operation, in connection with legislative acts of like tendency, must be complete enfranchisement. Wherever the national forces obtained control, the slaves became freemen. Support to the acts of Congress and the proclamation of the President concerning slaves was made a condition of amnesty* by President Lincoln, in December, 1863, and by President Johnson, in May, 1865. And emancipation was confirmed, rather than ordained, in the insurgent States, by the amendment to the Constitution prohibiting slavery throughout the

*13 U. S. Stat., 737. †13 U. S. Stat., 758

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