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Union, which was proposed by Congress in Feb- of guaranty is primarily a legislative power and ruary, 1865, and ratified before the close of the resides in Congress. "Under the fourth article following autumn by the requisite three-fourths of the Constitution, it rests with Congress to deof the States. *
cide what government is the established one in The new freemen necessarily became part of a State. For, as the United States guaranty to the people, and the people still constituted the each State a republican government, Congress State; for States, like individuals, retain their must necessarily decide what government is esidentity, though changed to some extent in their tablished in the State before it can determine constituent elements. And it was the State, thus whether it is republican or not." constituted, which was now entitled to the benefit This is the language of the late Chief Justice, of the constitutional guaranty.
speaking for this court, in a case from Rhode There being, then, no government in Texas, in Island,* arising from the organization of opposing constitutional relations with the Union, it be- governments in that State. And we think that came the duty of the United States to provide the principle sanctioned by it may be applied for the restoration of such a government. But with even more propriety to the case of a State the restoration of the government which existed deprived of all rightful government by revolubefore the rebellion, with jut a new election of tionary violence, though necessarily limited to officers, was obviously impossible; and before cases where the rightful government is thus subany such election could be properly held, it was
verted or in imminent danger of being overnecessary that the old constitution should receive thrown by an opposing government set up by such amendments as would conform its provisions force within the State. to the new conditions created by emancipation, The action of the President must, therefore, and afford adequate security to the people of the be considered as provisional, and in that light State.
it seems to have been regarded by Congress. It In the exercise of the power conferred by the was taken after the term of the 38th Congress guaranty clause, as in the exercise of every other had expired. The 39th Congress, which assemconstitutional power, a discretion in the choice bled in Decernber, 1865, followed by the 40th of means is necessarily allowed. It is essential Congress, which met in March, 1867, proceeded, only that the means must be necessary and prop- after long deliberation, to adopt various measures er for carrying into execution the power confer- for reorganization and restoration. These measred, through the restoration of the State to its ures were embodied in proposed amendments to constitutional relations, under a republican form the Constitution, and in the acts kpown as the of government, and that no acts be done, and no reconstruction acts, which have been so far carauthority exerted, which is either prohibited or ried into effect, that a majority of the States unsanctioned by the Constitution.
which were engaged in the rebellion have been It is not important to review at length the restored to their constitutional relations, under measures which have been taken under this forms of government adjudged to be republican power by the executive and legislative depart- by Congress, through the admission of their ments of the national Government. It is proper, "Senators and Representatives into the councils however, to observe, that almost immediately of the Union." after the cessation of organized hostilities, and Nothing in the case before us requires the while the war yet smouldered in Texas, the court to pronounce judgment upon the constituPresident of the United States issued his pro- tionality of any particular provision of these clamation appointing a provisional governor for acts. 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 had been established, and had been in actual constitution, and to the restoration of the State operation under executive direction, were recogto her proper constitutional relations. A con- nized by Congress as provisional, as existing, vention was accordingly assembled, the consti- and as capable of continuance. tution amended, elections held, and a State gov By the act of March 2, 1867,7 the first of the ernment acknowledging its obligations to the series, these governments were, indeed, proUnion established.
nounced 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 de cised 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 institnte 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 to military authority, or to the paramount aumeans and agents as were authorized by consti- thority of Congress. It suffices to say, that the tutional laws.
terms of the acts necessarily imply recognition But the power to carry into effect the clause of actually existing governments, and that, in
*13 U.S. Stat., 774-5.
*Luther vs. Borden, 7 How., 42. U. 8. Stat., 428.
point of fact, the governments thus recognized, It is not necessary to attempt any exact dein some important respects, still exist.
finitions within which the acts of such a Stato What has thus been said generally describes government must be treated as valid or invalid. with sufficient accuracy the situation of Texas. It may be said, perhaps with sufficient accuracy, A provisional governor of the State was ap- that acts necessary to peace and good order pointed by the President in 1865, in 1866 a among citizens, such, for example, as acts sancgovernor was elected by the people under the tioning and protecting marriage and the doconstitution of that year, at a subsequent date mestic relations, governing the course of a governor was appointed by the commander of descents, regulating the conveyance and transfer the district. Each of the three exercised execu- of property, real and personal, and providing tive functions, and actually represented the State remedies for injuries to person and estate, and in the executive department.
other similar acts, which would be valid is In the case before us each has given his sanc- emanating from a lawful government, must be tion to the prosecution of the suit, and we find regarded in general as valid when proceeding no difficulty, without investigating the legal from an actual
, though unlawful government; title of either to the executive office, in holding and that acts in furtherance or support of rebelthat the sanction 'thus given sufficiently war- | lion against the United States, or intended to ranted the action of the so and counsel in defeat the just rights of citizens, and other acts behalf of the State. The necessary conclusion of like nature, must, in general, be regarded as is that the suit was instituted and is prosecuted invalid and void. by competent authority.
What, then, tried by these general tests, was The question of jurisdiction being thus dis- the character of the contract of the military posed of, we proceed to the consideration of the board with White and Chiles ? merits as presented by the pleadings and the That board, as we have seen, was organized, evidence.
not for the defence of the State against a foreign And the first question to be answered is, invasion, or for its protection against domestic whether or not the title of the State to the bonds violence, within the meaning of these words as in controversy was divested by the contract of used in the national Constitution, but for the the military board with White and Chiles? purpose, under the
name of defence, of levying That the bonds were the property of the State war against the United States. This purpose of Texas on the 11th of January, 1862, when was undoubtedly unlawful, for the acts which the act prohibiting alienation without the en- it contemplated are, within the express definition dorsement of the governor was repealed, admits of the Constitution, treasonable. of no question and is not denied They came It is true that the military board was subseinto her possession and ownership through pub- quently reorganized. It consisted thereafter lic acts of the General Government and of the of the governor and two other members, apState, which gave notice to all the world of the pointed and removable by him; and was, theretransaction consummated by them. And we fore, entirely subordinate to executive control. think it clear that, if a State by a public act of Its general object remained without change, but her legislature imposes restrictions upon the its powers were "extended to the control of all alienation of her property, every person who public works and supplies, and to the aid of takes a transfer of such property must be held producing within the State, by the importaaffected by notice of thein. · Alienation in dis. tion of articles necessary and proper for such regard of such restrictions can convey no title. aid.”
In this case, however, it is said that the re And it was insisted in argument on behalf striction imposed by the act of 1851 was repealed of some of the defendants that the contract with by the act of 1862. And this is true if the act of White and Chiles, being for the purchase of 1862 can be regarded as valid. But was it valid ? cotton cards and medicines, was not a contract
The legislature of Texas, at the time of the in aid of the rebellion, but for obtaining goods repeal, constituted one of the departments of a capable of a nse entirely legitimate and innoState government established in hostility to the cent, and therefore that payment for those Constitution of the United States. It cannot be goods by the transfer of any property of the regarded, therefore, in the courts of the United State was not unlawful. We cannot adopt this States, as a lawful legislature, or its acts as law-view. Without entering
this time upon the ful acts. And, yet it is a historical fact that the inquiry whether any contract made by such a government of Texas, then in full control of the board can be sustained, we are obliged to say State, was its only actual government; and, cer- that the enlarged powers of the board appear to tainly, if Texas had been a separate State, and us to have been conferred in furtherance of its not one of the United States, the new govern- main purpose of war against the United States, ment, having displaced the regular authority, and that the contract under consideration, even and having established itself in the customary if made in the execution of these enlarged seats of power, and in the exercise of the ordi- powers, was still a contract in aid of the rebelnary functions of administration, would have lion, and therefore void. And we cannot shut constituted, in the strictest sense of the words, a our eyes to the evidence which proves that the de facto government, and its acts, during the act of repeal was intended to aid rebellion by period of its existence as such, would be effectual, facilitating the transfer of these bonds. It was and in almost all respects valid. And to some supposed, doubtless, that negotiation of them extent this is true of the actual government of would be less difficult if they bore upon their Texas, though unlawful and revolutionary as to face no direct evidence of having come from the the United States.
possession of any insurgent State government.
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 It follows that the title of the State was not of Texas, it might be converted into a good one. divested by the act of the insurgent government And it is true that the first provisional governor in entering into this contract.
of Texas encouraged the expectation that these But it was insisted further, in behalf of those bonds would be ultimately paid to the holders. defendants who claim certain of these bonds by But he was not authorized to make any engagepurchase, or as collateral security, that however ment in behalf of the State, and in fact made unlawful may have been the means by which none. It is true, also, that the Treasury DepartWhite and Chiles obtained possession of the ment, influenced perhaps by these representabonds, they are innocent holders without no- tions, departed to some extent from its original tice, and entitled to protection as such under the rule, and paid bonds held by some of the defend. rules which apply to securities which pass by ants without the required endorsement. But it delivery. These rules were fully discussed in is clear that this change in the action of the deMurray vs. Lardner.* We held in that case that partment could not affect the rights of Texas as the purchase of coupon bonds, before due, with a State of the Union, having a government out notice and in good faith, is unaffected by want acknowledging her obligations to the national of title in the seller, and that the burden of proof Constitution. in respect to notice and want of good faith is on It is impossible upon this evidence to hold the the claimant of the bonds as against the pur- defendants protected by absence of notice of the chaser. We are entirely satisfied with this doc- want of title in White and Chiles. As these trine.
persons acquired no right to payment of these Does the State, then, show affirmatively notice bonds as against the State, purchasers could ac. to these defendants of want of title to the bonds quire none through them. in White and Chiles ?
On the whole case, therefore, our conclusion It would be difficult to give a negative answer is, that the State of Texas is entitled to the relief to this question, if there were no other proof sought by her bill, and a decree must be made than the legislative acts of Texas. But there is accordingly. other evidence which might fairly be held to be sufficient proof of noti if the rule to which we
DISSENTING OPINION, have adverted could be properly applied to this
Mr. Justice Grier dissenting, delivered the But these rules have never been applied to following opinion: matured obligations. Purchasers of notes or
I regret that I am compelled to dissent from bonds past due take nothing but the actual right the opinion of the majority of the court on all and title of the vendors.†
the points raised and decided in this case. The bonds in question were dated January 1, The first question in order is the jurisdiction 1851, and were redeemable after the 31st of De- of the court to entertain this bill in behalf of ceinber, 1864. In strictness, it is true they were the State of Texas. not payable on the day when they became re The original jurisdiction of this court can be deemable; but the known usage of the United invoked only by one of the United States. The States to pay all bonds as soon as the right of Territories have no such right conferred on them payment accrues, except where a distinction be- by the Constitution, nor have the Indian tribes tween redeemability and payability is made by who are under the protection of the military law and shown on the face of the bonds, requires authorities of the Government. the application of the rule respecting over due Is Texas one of these United States? Or was obligations to bonds of the United States which she such at the time this bill was filed, or since? have become redeemable, and in respect to which This is to be decided as a political fact, not as no such distinction has been made.
a legal fiction. This court bound to know and Now, all the bonds in controversy had become notice the public history of the nation. 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 of a State, when we have the subject treated in the contrary, applications for the paymont of a clear and common-sense manner, and without bonds, withoat the required endorsement, and any astute judicial abstractions, by Chief Justice of coupons detached from such bonds, made to Marshall, in the case of Hepburn & Dundass vs. that department, had been denied.
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 court of the United States for the district of The purchasers took the risk of a bad title, Virginia. This depends on the act of Congress
* 2 Wall., 118. ^ Brown vs. Davis, 37 R., 80; Goodman describing the jurisdiction of that court. The us. Symonds, 20 How., 366.
act gives jurisdiction to the circuit courts in
cases between a citizen of the State in which the political position of the government; and I am suit is brought, and a citizen of another State. not disposed to join in any essay of judicial To support the jurisdiction in this case, it must subtlety to prove Texas to be a State of the appear that Columbia is a State. On the part Union, when Congress have decided that she is of the plaintiff it has been urged that Columbia not. It is a question of fact, I repeat, and of is a distinct political society, and is, therefore, a fact only. Politically, Texas is not a State in 'State' according to the definition of writers on this Union. Whether rightfully out of it or not general law. This is true; but as the act of is a question not before the court, and I am not Congress obviously nses the word 'State' in called on to confute a fact with syllogisms. reference to that term as used in the Constitu But conceding now the fact to be as judicially tion, it becomes neceseary to inquire whether assumed by my brethren, the next question is Columbia is a State in the sense of that instru. whether she has a right to repudiate her conment. The result of that examination is a tracts? Before proceeding to answer this quesconviction that the members of the American tion, we must notice a fact in this case that was confederacy only are the States contemplated in forgotten in the argument. I mean that the the Constitution. The House of Representatives United States are no party to this suit, and reis to be composed of members chosen by the fusing to pay the bonds because the money paid people of the several States, and each State shall would be used to advance the interests of the have at least one representative. “The Senate rebellion. It is a matter of utter insignificance of the United States shall be composed of two to the Government of the United States to whom senators from each State.' Each State shall ap- she makes the payment of these bonds. They point for the election of the executive a number are payable to the bearer. The Government is of electors equal to its whole number of senators pot bound to inquire into the bona fides of the and representatives. These clauses show that holder, nor whether the State of Texas has the word “State' is used in the Constitution as parted with the bonds wisely or foolishly. And, designating a member of the Union, and excludes although by the reconstruction acts she is refrom the term the signification attached to it by quired to repudiate all debts contracted for the writers on the law of nations."
purposes of the rebellion, this does not annul all Now we have here a clear and well defined acts of the State government during the rebeltest by which we may arrive at a conclusion lion or contracts for other purposes, nor authorwith regard to the questions of fact now to be ize the State to repudiate them. decided.
Now, whether we assume the State of Texas Is Texas a State, now represented by members to be judicially in the Union (though actually chosen by the people of that State and received out of it) or not, it will not alter the case. The on the floor of Congress? Has she two senators contest is now between the State of Texas and to represent her as a State in the Senate of the her own citizens. She seeks to annul a contract United States? Has her voice been heard in the with the respondents based on the allegation late election of President? Is she not now held that there was no authority in Texas competent and governed as a conquered province by mili- to enter into an agreement during the rebellion. tary force? The act of Congress of March 28, Having relied upon one judicial fiction, namely, 1867, declares Texas to be a “rebel State," and that she is a state in the Union, she now relies provides for its government until a legal and re- upon a second one, which she wishes this court publican State government could be legally es to adopt, that she was not a State at all during tablished. It constituted Louisiana and Texas the five years that she was in rebellion. She the fifth military district, and made it subject, now sets up the plea of insanity, and asks the not to the civil authority, but to the "military court to treat all her acts made during the disease authorities of the United States."
a3 void. It is true that no organized rebellion now ex
We have had some very astute logic to prove ists there, and the courts of the United States that judicially she was not a State at all, now exercise jurisdiction over the people of that although governed by her own legislature and province. But this is no test of the State's being executive as " a distinct political body.". in the Union: Dacotah is no State, and yet the The ordinance of secession was adopted by the courts of the United States administer justice convention on the 18th February, *1861, subthere as they do in Texas. The Indian tribes, mitted to a vote of the people, and ratified by. who are governed by military force, cannot an overwhelming majority. claim to be States of the Union. Wherein does I admit that this was a very ill-advised measthe condition of Texas differ from theirs? ure. Still, it was the sovereign act of a sovereign
Now, by assuming or admitting as a fact the State, and the verdict on the trial of this quespresent status of Texas as a State not in the tion" by battle,” (Prize Cases 2 Black, 673,) Upinn politically, I beg leave to protest against as to her right to secede, has been against her. any charge of inconsistency as to judicial opin- But that verdict did not settle any question not ions heretofore expressed as a member of this involved in the case. It did not settle the ques. court or silently assented to. I do not consider tion of her right to plead insanity and set aside all myself bound to express any opinion judicially her contracts, made during the pending of the as to the constitutional right of Texas to exer- trial, with her own citizens, for food clothing, or cise the rights and privileges of a State of this medicines. The same“ organized political body,'' Union, or the power of Congress to govern her exercising the sovereign power of the State, which as a conquered province, to subject her to mili- required the endorsement of these bonds by the tary domination and keep her in pupilage. I governor, also passed the laws authorizing the can only submit to the fact as decided by the disposal of them without such endorsement. She
cannot, like the chameleon, assume the color of This cause came here by appeal from the cirthe object to which she adheres, and ask this court cuit court for the southern district of Mississippi. to involve itself in the contradictory positions A petition for the writ of habeas corpus was that she is a State in the Union and was never preferred in that court by the appellant, allegout of it, and yet not a State at all for four years, ing unlawful restraint by military force. during which she acted and claims to be “an The writ was issued, and a return was made organized political body," exercising all the by the military commander, admitting the repowers and functions of an independent sovereign straint, but denying that it was unlawful. State. Whether a State de facto or de jure, she is It appeared that the petitioner was not in the estopped from denying her identity in disputes military service of the United States, but was with her own citizens. If they have not fulfilled held in custody by military authority for trial their contract, she can have her legal remedy before a military commission upon charges for the breach of it in her own courts.
founded upon the publication of articles alleged But the case of Hardenberg differs from that to be incendiary and libelous, in a newspaper of of the other defendants. He purchased the bonds which he was editor. in open market, bona fide, and for a full consid Upon the hearing the petitioner was remanded eration. Now, it is to be observed that these to the military custody; but upon his prayer an bonds are payable to bearer, and that this court is appeal was allowed him to this court, and, upon appealed to as a court of equity. The argument filing the usual appeal bond for costs, he was adto justify a decree in favor of the Commonwealth mitted to bail upon recognizance, with sureties, of Texas as against Hardenberg is simply this: conditioned for his future appearance in the cir these bonds, though payable to bearer, are re- cuit court, to abide by and perform the final deemable fourteen years from date. The Gov- judgment of this court. ernment has exercised her privilege of paying A motion to dismiss this appeal was made at the interest for a term without redeeming the the last term, and, after argument, was denied. principal, which gives an additional value to the A full statement of the case may be found in bonds. Ergo, the bonds are dishonored. Ergo, the report of this decision ;* and it is unnecesthe former owner has a right to resume the pos- sary to repeat it here. session of them, and reclaim them from a bona Subsequently the case was argued very thorfide owner by a decree of a court of equity. oughly and ably upon the merits. and was taken
This is the legal argument, when put in the under advisement. While it was thus held, and form of a logical sorites, by which Texas invokes before conference in regard to the decision our aid to assist her in the perpetration of this proper to be made, an act was passed by Congreat wrong.
gress, t 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, I can juridiction of the appeal. only say that neither my reason por my con The second section of this act was as follows: science can give assent to it. Of course I am “And be it further enacted, That so much of justly convicted by my brethren of an erroneous the act approved February 5, 1867, entitled an use of both; but I hope I may say, without of- act to amend an act to establish the judicial fence, that I am not convinced of it.
courts of the United States, approved September Mr. Justice Swayne delivered the following 24, 1789, as authorized an appeal from the judgopinion:
ment of the circuit court to the Supreme Court I concur with my brother Grier as to the inca of the United States, or the exercise of any such pacity of the State of Texas, in her present con- jurisdiction by said Supreme Court on appeals dition, to maintain an original suit in this court. which have been or may hereafter be taken, be, The question, in my judgment, is one in relation and the same is hereby, repealed.”. to which this court is bound by the action of the The attention of the court was directed to this legislative department of the Government statute at the last term, but counsel having ex
Upon the merits of the case I agreo with the pressed a desire to be heard in argument upon majority of my brethren.
its effect, and the Chief Justice being detained I am authorized to say that my brother Mil- from his place here by his duties in the court of ler unites with me in these views.
impeachment, the cause was continued under The decree in this case was, on motion of Wil. advisement. liam M. Evarts and J. M. Carlisle, suspended in At this term we have heard argument upon so far as it affects the rights of any holders or the effect of the repealing act, and will now dispurchasers of the coupon bonds who obtained pose of the case. them in open market, and a re-argument of the The first question necessarily is that of juriscase was ordered for October next.
diction; for, if the act of March, 1868, takes
away the jurisdiction defined by the act of Feb. The McCardle Case.
ruary, 1867, it is useless, if not improper, to enter No. 223, DECEMBET TERM, 1868. into any discussion of other questions.
Appeal from the cir. It is quite true, as was argued by the counsel
cuit court of the for the petitioner, that the appellate jurisdiction Ex parte William H. McCardle, appellant.
the southern dis- of this court is not derived from acts of Congress.
Missis. It is, strictly speaking, conferred by the Consti
sippi. Mr. Chief Justice Chase delivered the opinion
* Ex-parte McCardle, 6 Wall., 318. Act March 27, of the court.
1868, 16 U. 8. Stat. 44.