페이지 이미지

puted to the constitution. Such a provision could not be viewed in any other light than as a solecism in the structure of a government. It would be substantially a provision for its own dissolution, without the sanction or agreement of the power which created it.

But I am not at liberty to extend this discussion. I may remark, in closing, that there were those in the convention which framed the constitution, and in the conventions of the states which ratified it, who objected to it because it created a national consolidated or supreme government of the United States. There was no difference of opinion then as to the character of the government which the constitution created, but the ground of its opponents was, that it did not conform to their views of what it should be. The counsel has referred in his argument to the resolutions of the legislatures of Virginia and Kentucky, passed in 1798, as giving sanction to the doctrine of the right of a State, at any time, to interpose its authority to prevent or provide a remedy for the unconstitutional exercise of authority on the part of the general government, and that they sanction what is called the right of nullification, or even of secession. I cannot assent to the proposition that, properly understood, they justify such a conclusion. The history of these resolutions is well known to the American people. They were designed for a special political object, wbich was effected, in part at least, through their instrumentality. They affirmed that the states, being parties to the constitutional compact, “in case of a deliberate, palpable and dangerous exercise of powers not granted by the compact, have a right, and are in duty bound, to interpose to prevent the progress of the evil.” A distinguished statesman has well observed in commenting on these resolutions, that “the sort of interposition intended was left in studied obscurity.” But Mr. Madison, who was the author of the resolutions adopted by the Virginia legislature, in his report to that body in 1799, asserts distinctly that no extra constitutional measures were intended. And thirty years later, during the administration of General Jackson, when certain prominent southern politicians insisted that nullification was the proper remedy, in case of an invasion of the rights of a state, solemnly and earnestly protested against this construction of the Virginia resolutions. “He earnestly maintained that the separate action of an individual state was not contemplated by them, and that they had in view nothing but the concerted action of the states to procure a repeal of unconstitutional laws, or an amendment of the constitution.” And in 1832, when Mr. Calhoun had succeeded in inducing South Carolina to pass an ordinance of nullification, on the avowed ground of the unconstitutionality of the laws imposing duties on imports, and that state was on the verge of open rebellion, the sturdy arm of Andrew Jackson was raised to crush it in the bud. Before resorting to force for this purpose, with a paternal anxiety for the people of that state who had been deluded by the false political teachings of their. leaders, he issued his memorable proclamation, addressed to the people of that

It is a document which well deserves to be cherished in the memories of the American people to the latest ages. It is alike remarkable for the earnest devotion of its author to the union of the states, the elevated patriotism which is exhibited in every line, and its able and unanswerable exposition of the true principles and theory of the government. The fallacies of the nullification party were held up as dangerous political heresies. Its effects upon the whole country were electrical. It was clothed with the power of truth, and carried conviction to the minds of all men of all political parties whose intellects were not so constructed as to be impervious to the voice of reason, or dead to the impulses of patriotisın.

But though the iron will and sturdy sense of President Jackson had thoroughly rebuked and arrested the heresy for the time, the deadly poison was not wholly eradicated from the southern mind. After the lapse of thirty years, its baleful effects have appeared in a new and more malignant form. That which was nullification in 1832, is secession in 1860.

$ 139. A citizen of the loyal states, extending aid to the late rebellion, was guilty of treason against the United States.

The political leaders in the southern states, by means which I do not care to recite, bave so far succeeded in their treasonable machinations as to induce those states madly to leap into the fiery vortex of secession. They have gone through the mockery of passing ordinances, in which they declare they are no longer parties of the solemn compact of government, and repudiate all allegiance to it. They have inaugurated war against that government and have been in armed rebellion against it for nearly three years. If successful, the overthrow of the government is the inevitable result, for secession, having no warrant in the constitution, is revolution. The authorities charged with the solemn duty of preserving and perpetuating the government, have found it imperatively necessary to meet force by force, and have adopted measures to repel and subdue the criminal designs of those in rebellion. The country is in a state of war - a war which the adjudications of the supreme court have declared to be lawful and constitutional. A struggle is in progress which, at one time, jeopardized the very life of the government. In such a crisis, it is now gravely urged in a court deriving its being and authority from a constitution which the judges are sworn to support, that a citizen of the patriotic and loyal state of Ohio, charged with criminal complicity in the rebellion, cannot be guilty of treason, because the revolted states had a right to withdraw from the Union; and, as a logical and legal result, have virtually destroyed the entire fabric of the government, and absolved the people of the United States from all obligation of allegiance to it! As a judge, and as a citizen of the United States, I am constrained to enter my protest against such a dangerous perversion of the principles of the constitution. To sanction such a position, under circumstances now existing in our country, implies, in my judgment, a most unenviable condition of intellect, and the possession of a measure of courage, physical and moral, to which I can lay no claim. The character and tendencies of this doctrine are not now to be settled by unmeaning abstractions and metaphysical speculations. The period when these could have been available is gone by, and the bitter fruits of this sad error are now fully developed in its practical results. It has plunged those who have been its deluded victims into one of the deadliest conflicts the world has ever witnessed. Its blighting influences are now frightfully apparent in the widespread suffering, desolation and ruin which it has brought upon the states which have so madly raised the banner of revolt. The loyal states, too, have laid liberal offerings on the altar of sacrifice. In their patriotic devotion to the government of their fathers, and impelled by a stern, unconquerable purpose of defending; preserving and perpetuating it, they have cheerfully borne a severe trial of their energies, and profusely lavished their treasures and poured out their blood. The sacrifice, though costly, we may well hope, will be fully repaid by the end to be achieved.

[ocr errors]

I have now only to say, that, upon none of the grounds urged, can the exceptions to this indictment be sustained. The demurrer, as also the motion to quash in the case of Catherine Parmenter, are therefore overruled.


(7 Wallace, 700-743. 1868.)

Opinion by CHASE, C. J.

STATEMENT OF Facts.— This is an original suit in this court, in which the state of Texas, claiming certain bonds of the United States as her property, asks an injunction to restrain the defendants from receiving payment from the national government, and to compel the surrender of the bonds to the state. It appears from the bill, answers and proofs, that the United States, by act of September 9, 1850, offered to the state of Texas, in compensation for her claims connected with the settlement of her boundary, $10,000,000 in five per cent. bonds, each for the sum of $1,000; and that this offer was accepted by Texas. One-half of these bonds were retained for certain purposes in the national treasury, and the other half were delivered to the state. The bonds thus delivered were dated January 1, 1851, and were all made payable to the state of Texas, or bearer, and redeemable after the 31st day of December, 1864. They were received in behalf of the state by the comptroller of public accounts, under authority of an act of the legislature, which, besides giving that authority, provided that no bond should be available in the hands of any holder until after indorsement by the governor of the state.

After the breaking out of the rebellion, the insurgent legislature of Texas, on the 11th of January, 1862, repealed the act requiring the indorsement of the governor (Acts of Texas, 1862, p. 45), 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 defense of the state by means of any bonds in the treasury, upon any account, to the extent of $1,000,000. Texas Laws, 55. The defense contemplated by the act was to be made against the United States by war. Under this authority the military board entered into an agreement with George W. White and John Chiles, two of the defendants, for the sale to them of one hundred and thirty-five of these bonds, then in the treasury of the state, and seventy-six more, then deposited with Droege & Co., in England; in payment for which they engaged to deliver to the board a large quantity of cotton cards and medicines. This agreement was made on the 12th of January, 1865. On the 12th of March, 1865, White and Chiles received from the military board one hundred and thirty-five of these bonds, none of which were indorsed by any governor of Texas. Afterward, in the course of the years 1865 and 1866, some of the same bonds came into the possession of others of the defendants, by purchase, or as security for advances of money. Such is a brief outline of the case. It will be necessary hereafter to refer more in detail to some particular circumstances of it.

$ 140. The allegation that the state has no right to sue is disproved by the evidence.

The first inquiries to which our attention was directed by counsel arose upon the allegations of the answer of Chiles, (1) that no sufficient authority is shown for the prosecution of the suit in the name and on the behalf of the state of Texas; and (2) that the state, having severed her relations with a majority of the states of the Union, and having by her ordinance of secession attempted to throw off her allegiance to the constitution and government of the United States, has so far changed her status as to be disabled from prosecuting suits in the national courts. The first of these allegations is disproved by the evidence. A letter of authority, the authenticity of which is not disputed, has been produced, in which J. W. Throckmorton, elected governor under the constitution adopted in 1866, and proceeding under an act of the state legislature relating to these bonds, expressly ratifies and confirms the action of the solicitors who filed the bill, and empowers them to prosecute this suit; and it is further proved by the affidavit of Mr. Paschal, counsel for the complainant, that he was duly appointed by Andrew J. Hamilton, while provisional governor of Texas, to represent the state of Texas in reference to the bonds in controversy, and that his appointment has been renewed by E. M. Pease, the actual governor. If Texas was a state of the Union at the time of these acts, and these persons, or either of them, were competent to represent the state, this proof leaves no doubt upon the question of authority.

$ 141. Whether Texus was a state of the Union, and whether, therefore, the supreme court has jurisdiction.

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 tbe constitution alone.

$ 142. The term "stutedefined, in connection with its employment in the constitution.

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 bardly 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 permanently the same country; often it denotes only the country or territorial region inhabited by such a community; not unfrequently it is applied to the government under which the people live; at other times it represents the combined idea of people, territory, and government. 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, Mr. Justice Paterson, in Penhallow v. Doane, 3 Dal., 93, 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 states, under a common constitution, which forms the distinct and greater political unit, which that constitution designates as the United States, and makes of the people and states which compose it one people and one country. The use of the word in this sense bardly requires further remark. In the clauses which impose prohibitions upon the states in respect to the making of treaties, emitting of bills of credit, and laying duties of tonnage, and which 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.

§ 143. The history of the secession of Texas from the Union.

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 (Paschal's Dig. Laws of Texas, 78), 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.” It was ordered by a vote of the convention (id., 80) and by an act of the legislature (Laws of Texas, 1859–61, p. 11), that this ordinance should be submitted to the people, for approval or disapproval, on the 23d of February, 1861. Without awaiting, however, the decision thus invoked, the convention,

« 이전계속 »