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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.*

The new freemen necessarily became part of the people, and the people still constituted the State; for States, like individuals, retain their identity, though changed to some extent in their constituent elements. And it was the State, thus constituted, which was now entitled to the benefit of the constitutional guaranty.

There being, then, no government in Texas, in constitutional relations with the Union, it became the duty of the United States to provide for the restoration of such a government. But the restoration of the government which existed before the rebellion, without a new election of officers, was obviously impossible; and before any such election could be properly held, it was necessary that the old constitution should receive such amendments as would conform its provisions to the new conditions created by emancipation, and afford adequate security to the people of the State.

In the exercise of the power conferred by the guaranty clause, as in the exercise of every other constitutional power, a discretion in the choice of means is necessarily allowed. It is essential only that the means must be necessary and proper for carrying into execution the power conferred, through the restoration of the State to its constitutional relations, under a republican form of government, and that no acts be done, and no authority exerted, which is either prohibited or unsanctioned by the Constitution.

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 guaranty to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not."

This is the language of the late Chief Justice, speaking for this court, in a case from Rhode Island, arising from the organization of opposing governments in that State. And we think that the principle sanctioned by it may be applied with even more propriety to the case of a State deprived of all rightful government by revolutionary violence, though necessarily limited to cases where the rightful government is thus subverted or in imminent danger of being overthrown by an opposing government set up by force within the State.

The action of the President must, therefore, be considered as provisional, and in that light it seems to have been regarded by Congress. It was taken after the term of the 38th Congress had expired. The 39th Congress, which assembled in December, 1865, followed by the 40th Congress, which met in March, 1867, proceeded, after long deliberation, to adopt various measures for reorganization and restoration. These measures were embodied in proposed amendments to the Constitution, and in the acts known as the reconstruction acts, which have been so far carried into effect, that a majority of the States which were engaged in the rebellion have been restored to their constitutional relations, under forms of government adjudged to be republican by Congress, through the admission of their "Senators and Representatives into the councils of the Union."

Nothing in the case before us requires the court to pronounce judgment upon the constitutionality of any particular provision of these acts.

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 But it is important to observe, that these acts convention, with a view to the re-establishment themselves show that the governments which 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.

had been established, and had been in actual operation under executive direction, were recognized by Congress as provisional, as existing, and as capable of continuance.

By the act of March 2, 1867,† the first of the series, these governments were, indeed, pronounced illegal, and were subjected to military Whether the action then taken was in all control, and were declared to be provisional respects warranted by the Constitution it is not only; and by the supplementary act of July 19, now necessary to determine. The power exer- 1867, the third of the series, it was further decised by the President was supposed doubtless clared, that it was the true intent and meaning to be derived from his constitutional functions of the act of March 2 that the governments as commander-in-chief; and, so long as the war then existing were not legal State governments, continued, it cannot be denied that he might and, if continued, were to be continued subject institute temporary government within insur to the military commanders of the respective gent districts occupied by the national forces, or districts and to the paramount authority of Contake measures in any State for the restoration gress. We do not inquire here into the constiof State government faithful to the Union, em-tutionality of this legislation so far as it relates ploying, however, in such efforts, only such means and agents as were authorized by constitutional laws.

But the power to carry into effect the clause

*13 U. S. Stat., 774-5.

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

Luther vs. Borden, 7 How., 42. †U. S. Stat., 428.

point of fact, the governments thus recognized, It is not necessary to attempt any exact dein some important respects, still exist.

What has thus been said generally describes with sufficient accuracy the situation of Texas. A provisional governor of the State was appointed by the President in 1865, in 1866 a governor was elected by the people under the constitution of that year, at a subsequent date a governor was appointed by the commander of the district. Each of the three exercised executive functions, and actually represented the State in the executive department.

In the case before us each has given his sanction to the prosecution of the suit, and we find no difficulty, without investigating the legal title of either to the executive office, in holding that the sanction thus given sufficiently warranted the action of the solicitor and counsel in behalf of the State. The necessary conclusion is that the suit was instituted and is prosecuted by competent authority.

The question of jurisdiction being thus disposed of, we proceed to the consideration of the merits as presented by the pleadings and the evidence.

And the first question to be answered is, whether or not the title of the State to the bonds in controversy was divested by the contract of the military board with White and Chiles?

finitions 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 sanetioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding from an actual, though unlawful government; and that acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void.

What, then, tried by these general tests, was the character of the contract of the military board with White and Chiles?

That board, as we have seen, was organized, not for the defence of the State against a foreign invasion, or for its protection against domestic violence, within the meaning of these words as used in the national Constitution, but for the purpose, under the name of defence, of levying war against the United States. This purpose was undoubtedly unlawful, for the acts which it contemplated are, within the express definition of the Constitution, treasonable.

It is true that the military board was subsequently reorganized. It consisted thereafter of the governor and two other members, appointed and removable by him; and was, therefore, entirely subordinate to executive control. Its general object remained without change, but its powers were "extended to the control of all public works and supplies, and to the aid of producing within the State, by the importation of articles necessary and proper for such aid."

And it was insisted in argument on behalf of some of the defendants that the contract with White and Chiles, being for the purchase of cotton cards and medicines, was not a contract in aid of the rebellion, but for obtaining goods capable of a use entirely legitimate and innocent, and therefore that payment for those goods by the transfer of any property of the State was not unlawful. We cannot adopt this

That the bonds were the property of the State of Texas on the 11th of January, 1862, when the act prohibiting alienation without the endorsement 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, 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. In this case, however, it is said that the restriction imposed by the act of 1851 was repealed by the act of 1862. And this is true if the act of 1862 can be regarded as valid. But was it valid? The legislature of Texas, at the time of the repeal, constituted one of the departments of a State government established in hostility to the Constitution of the United States. It cannot be regarded, therefore, in the courts of the United States, as a lawful legislature, or its acts as law-view. Without entering at this time upon the ful acts. And, yet it is a historical fact that the government of Texas, then in full control of the State, was its only actual government; and, certainly, if Texas had been a separate State, and not one of the United States, the new government, having displaced the regular authority, and having established itself in the customary seats of power, and in the exercise of the ordinary functions of administration, would have constituted, in the strictest sense of the 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.

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.

It follows that the title of the State was not divested by the act of the insurgent government in entering into this contract.

We can give no effect, therefore, to this repeal- | hoping, doubtless, that, through the action of ing act. the national Government or of the government of Texas, it might be converted into a good one. And it is true that the first provisional governor of Texas encouraged the expectation that these bonds would be ultimately paid to the holders. But he was not authorized to make any engagement in behalf of the State, and in fact made none. It is true, also, that the Treasury Department, influenced perhaps by these representations, departed to some extent from its original rule, and paid bonds held by some of the defendants without the required endorsement. 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.

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 vs. Lardner. We held in that case that the purchase 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 doc

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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.†

The bonds in question were dated January 1, 1851, and were redeemable after the 31st of Deceiber, 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 over due obligations to bonds of the United States which have become redeemable, and in respect to which no such distinction has been made.

It is impossible upon this evidence to hold the defendants protected by absence of notice of the want of title in White and Chiles. As these persons acquired no right to payment of these bonds as against the State, purchasers could acquire none through them.

On the whole case, therefore, our conclusion is, that the State of Texas is entitled to the relief sought by her bill, and a decree must be made accordingly.

DISSENTING OPINION,

Mr. Justice Grier dissenting, delivered the following opinion:

I regret that I am compelled to dissent from the opinion of the majority of the court on all the points raised and decided in this case.

The first question in order is the jurisdiction of the court to entertain this bill in behalf of the State of Texas.

The original jurisdiction of this court can be invoked only by one of the United States. The Territories have no such right conferred on them by the Constitution, nor have the Indian tribes who are under the protection of the military authorities of the Government.

Is Texas one of these United States? Or was

she such at the time this bill was filed, or since?

This is to be decided as a political fact, not as a legal fiction. This court is bound to know and notice the public history of the nation.

Now, all the bonds in controversy had become redeemable before the date of the contract with If I regard the truth of history for the last White and Chiles; and all bonds of the same eight years, I cannot discover the State of Texas issue which have the endorsement of a governor as one of these United States. I do not think of Texas made before the date of the secession it necessary to notice any of the very astute ordinance and there were no others endorsed arguments which have been advanced by the by any governor-had been paid in coin on pre-learned counsel in this case to find the definition sentation at the Treasury Department; while, on the contrary, applications for the paymont of bonds, without the required endorsement, and of coupons detached from such bonds, made to that department, had been denied.

of a State, when we have the subject treated in a clear and common-sense manner, and without any astute judicial abstractions, by Chief Justice Marshall, in the case of Hepburn & Dundass vs. Elzey, 2 Cranch, 452. As the case is short and As a necessary consequence, the negotiation of clear, I hope to be excused for a full report of these bonds became difficult. They sold much the case as stated and decided by the court. below the rates they would have commanded"The question," says Marshall, C J., "is whether had the title to them been unquestioned. They the plaintiffs, as residents of the District of Colwere bought in fact, and under the circumstances umbia, can maintain an action in the circuit could only have been bought, upon speculation. The purchasers took the risk of a bad title, *2 Wall., 118. Brown vs. Davis, 37 R., 80; Goodman us. Symonds, 20 How., 366.

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 nses the word 'State' in reference to that term as used in the Constitution, it becomes necessary to inquire whether Columbia is a State in the sense of that instrument. The result of that examination is a conviction that the members of the American confederacy only are the States contemplated in the Constitution. The House of Representatives is to be composed of members chosen by the people of the several States, and each State shall have at least one representative. The Senate of the United States shall be composed of two senators from each State.' Each State shall appoint for the election of the executive a number of electors equal to its whole number of senators and representatives. These clauses show 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."

Now we have here a clear and well defined test by which we may arrive at a conclusion with regard to the questions of fact now to be decided.

Is Texas a State, now represented by members chosen by the people of that State and received on the floor of Congress? Has she two senators to represent her as a State in the Senate of the United States? Has her voice been heard in the late election of President? Is she not now held and governed as a conquered province by military force? The act of Congress of March 28, 1867, declares Texas to be a "rebel State," and provides for its government until a legal and republican State government could be legally established. It constituted Louisiana and Texas the fifth military district, and made it subject, not to the civil authority, but to the "military

authorities of the United States."

It is true that no organized rebellion now exists there, and the courts of the United States now exercise jurisdiction over the people of that province. But this is no test of the State's being in the Union: Dacotah is no State, and yet the courts of the United States administer justice there as they do in Texas. The Indian tribes, who are governed by military force, cannot claim to be States of the Union. Wherein does the condition of Texas differ from theirs?

Now, by assuming or admitting as a fact the present status of Texas as a State not in the Union politically, I beg leave to protest against any charge of inconsistency as to judicial opinions heretofore expressed as a member of this court or silently assented to. I do not consider myself bound to express any opinion judicially as to the constitutional right of Texas to exercise the rights and privileges of a State of this Union, or the power of Congress to govern her as a conquered province, to subject her to military domination and keep her in pupilage. I can only submit to the fact as decided by the

political position of the government; and I am not disposed to join in any essay of judicial subtlety 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, and I am not called on to confute a fact with syllogisms.

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 bona fides of the holder, nor whether the State of Texas has parted with the bonds wisely or foolishly. And, although by the reconstruction acts she is required to repudiate all debts contracted for the purposes of the rebellion, this does not annul all acts of the State government during the rebellion or contracts for other purposes, nor authorize the State to repudiate them.

Now, whether we assume the State of Texas to be judicially in the Union (though actually out of it) or not, it will not alter the case. The contest is now 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 judicial fiction, namely, that she is a state in the Union, she now relies upon a second one, which she wishes this court to adopt, that she was not a State at all during the five years that she was in rebellion. She now sets up the plea of insanity, and asks the court to treat all her acts made during the disease

as void.

We have had some very astute logic to prove that judicially she was not a State at all, although governed by her own legislature and executive as a distinct political body."

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The ordinance of secession was adopted by the convention on the 18th 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," (Prize Cases 2 Black, 673,) 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 endorsement of these bonds by the governor, also passed the laws authorizing the disposal of them without such endorsement. She

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cannot, like the chameleon, assume the color of the object to which she adheres, and ask this court to involve itself in the contradictory positions that she is a State in the Union and was never out of it, and yet not a State at all for four years, during which she acted and claims to be an organized political body," exercising all the powers and functions of an independent sovereign State. Whether a State de facto or de jure, she is estopped from denying her identity in disputes with her own citizens. If they have not fulfilled their contract, she can have her legal remedy for the breach of it in her own courts.

But the case of Hardenberg differs from that of the other defendants. He purchased the bonds in open market, bona 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 bona fide owner by a decree of a court of equity.

This is the legal argument, when put in the form of a logical sorites, by which Texas invokes our aid to assist her in the perpetration of this great wrong.

This cause came here by appeal from the circuit court for the southern district of Mississippi. A petition for the writ of habeas corpus was preferred in that court by the appellant, alleging unlawful restraint by military force.

The writ was issued, and a return was made by the military commander, admitting the restraint, but denying that it was unlawful.

It appeared that the petitioner was not in the military service of the United States, but was held in custody by military authority for trial before a military commission upon charges founded upon the publication of articles alleged to be incendiary and libelous, in a newspaper of which he was editor.

Upon the hearing the petitioner was remanded to the military custody; but upon his prayer an appeal was allowed him to this court, and, upon filing the usual appeal bond for costs, he was admitted to bail upon recognizance, with sureties, conditioned for his future appearance in the circuit court, to abide by and perform the final judgment of this court.

A motion to dismiss this appeal was made at the last term, and, after argument, was denied. A full statement of the case may be found in the report of this decision;* and it is unnecessary to repeat it here.

Subsequently the case was argued very thoroughly and ably upon the merits. and was taken under advisement. While it was thus held, and before conference in regard to the decision proper to be made, an act was passed by Congress, returned with objections by the PresiA court of chancery is said to be a court of dent, and re-passed by the constitutional majorconscience; and however astute may be the ar-ity, which it is insisted takes from this court gument introduced to defend this decree, can juridiction of the appeal. only say that neither my reason nor my conscience can give assent to it. Of course I am justly convicted by my brethren of an erroneous use of both; but I hope I may say, without offence, that I am not convinced of it.

Mr. Justice Swayne delivered the following opinion:

I concur with my brother Grier as to the inca pacity of the State of Texas, in her present condition, to maintain an original suit in this court. The question, in my judgment, is one in relation to which this court is bound by the action of the legislative department of the Government.

Upon the merits of the case I agree with the majority of my brethren.

I am authorized to say that my brother Miller unites with me in these views.

The decree in this case was, on motion of William M. Evarts and J. M. Carlisle, suspended in so far as it affects the rights of any holders or purchasers of the coupon bonds who obtained them in open market, and a re-argument of the case was ordered for October next.

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The second section of this act was as follows:

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And be it further enacted, That so much of the act approved February 5, 1867, entitled an act to amend an act to establish the judicial courts of the United States, approved September 24, 1789, as authorized an appeal from the judgment of the circuit court to the Supreme Court of the United States, or the exercise of any such jurisdiction by said Supreme Court on appeals which have been or may hereafter be taken, be, and the same is hereby, repealed."

The attention of the court was directed to this statute at the last term, but counsel having expressed a desire to be heard in argument upon its effect, and the Chief Justice being detained from his place here by his duties in the court of impeachment, the cause was continued under advisement.

At this term we have heard argument upon the effect of the repealing act, and will now dispose of the case.

The first question necessarily is that of jurisdiction; for, if the act of March, 1868, takes away the jurisdiction defined by the act of February, 1867, it is useless, if not improper, to enter into any discussion of other questions.

It is quite true, as was argued by the counsel for the petitioner, that the appellate jurisdiction of this court is not derived from acts of Congress. It is, strictly speaking, conferred by the Consti

*Ex-parte McCardle, 6 Wall., 318. †Act March 27, 1868, 15 U. S. Stat. 44.

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