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jected to military control, and were declared to be provisional only; and by the supplementary act of July 19, 1867, the third of the series, it was further declared that it was the true intent and meaning of the act of March 2d, that the governments then existing were not legal state governments, and if continued were to be continued subject to the military commanders of the respective districts and to the paramount authority of congress. We do not inquire here into the constitutionalită of this legislation so far as it relates 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 point of fact, the governments thus recognized, in some important respects, still exist. What hạs 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 eridence.
$ 164. If a state imposes restrictions upon the alienation of her property, every person who takes a transfer of such property is affected with notice.
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? That the bonds were the property of the state of Texas on the 11th of January, 1862, when the act prohibiting alienation without the indorsement of the governor was repealed, admits of no question and is not denied.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, that 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 to the alienee. In this case, bowever, 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 lawful acts. And yet it is an 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.
$155. When acts of the rebellious governments are to be treated as valid or invalid.
It is not necessary to attempt any exact definitions 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 sanctioning 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 alid 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.
$ 156. — the act in question discussed.
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 defense 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 defense, 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."
$ 157. The contract with White and Chiles was one in aid of rebellion, and therefore vested in them no right to the bonds.
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 view. Without entering, at this time, upon the 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. We can give no effect, there fore, to this repealing act. It follows that the title of the state was not divested by the act of the insurgent government in entering into this contract.
$ 158. The rights of the defendants as bona fide purchasers of the bonds discussed.
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 v. Lardner, 2 Wall., 118. We held in that case that the purchaser 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 doctrine. Does the state, then, show affirmatively notice to these defendants of want of title to the bonds in White and Chiles? It would be difficult to give a negative answer to this question if there were no other proof than the legislative acts of Texas. But there is other evidence which might fairly be held to be sufficient proof of notice, if the rule to which we have adverted could be properly applied to this case.
$ 159. Rights of purchasers of bonds past due, or after they are redeemable.
But these rules bave never been applied to matured obligations. Purchasers of notes or bonds past due take nothing but the actual right and title of the vendors. Brown v. Davies, 3 Term R., 80; Goodman v. Simonds, 20 How., 366 (BILLS AND NOTES, SS 420-425). The bonds in question were dated January 1, 1851, and were redeemable after the 31st of December, 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 overdue obligations to bonds of the United States which have become redeemable, and in respect to which no such distinction has been made. Now, all the bonds in controversy had become re. deemable before the date of the contract with White and Chiles; and all bonds of the same issue which have the indorsement of a governor of Texas made before the date of the secession ordinance — and there were no others indorsed by any governor — had been paid in coin on presentation at the treasury department; while, on the contrary, application for the payment of bonds without the required indorsement, and of coupons detached from such bonds, made to that department, had been denied. As a necessary consequence, the negotiation of these bonds became difficult. They sold much below the rates they would have commanded had the title to them been unquestioned. They were bought, in fact, and under the circumstances could only have been bought, upon speculation. The purchasers took the risk of a bad title, hoping, doubtless, that through the action of the national government, or of the government of Texas, it might be converted into a good one.
$ 160. No act of the federal government in dispensing with the requirement of the bonds could prejudice the rights of the state.
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 indorsement. 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. 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 conclusio.: is that the state of Texas is entitled to the relief sought by her bill, and a decree must be made accordingly.
MR. JUSTICE GRIER dissented, holding (1) that, politically, Texas was not a state in the Union, and that she had no right to maintain the suit; (2) that she had no right to repudiate debts not contracted in aid of rebellion, and that whether a state de facto or de jure, during the four years she claimed to have been out of the Union, she was estopped from denying her identity in disputes with her own citizens. JUSTICES MILLER and SWAYNE concurred with JUSTICE GRIER as to the incapacity of Texas to maintain the suit, but agreed with the majority on the merits.
HOUSTON v. MOORE.
(5 Wheaton, 1-76. 1820.) ERROR to the Supreme Court of Pennsylvania.
STATEMENT OF FACTS.- An act of the state of Pennsylvania, of March 28, 1814, provided that non-commissioned officers and privates of the militia, who failed to respond to the requisitions of the president, should be subject to the penalties prescribed by acts of congress then in force, or such penalties as might be prescribed thereafter. The act provided for trial by court-martial. Houston was tried and fined under this law, and brougbt an action of trespass against the officer who levied on his property to satisfy the fine. The court charged that the law was constitutional.
Opinion by Mr. JUSTICE WASHINGTON.
There is but one question in this cause, and it is, whether the act of the legislature of Pennsylvania, under the authority of which the plaintiff in error was tried, and sentenced to pay a fine, is repugnant to the constitution of the United States, or not? But before this question can be clearly understood, it will be necessary to inquire, 1. What are the powers granted to the general government, by the constitution of the United States, over the militia ; and 2. To what extent they have been assumed and exercised?
$ 161. Powers granted to the general government by the constitution over the militia.
1. The constitution declares that congress shall have power to provide for calling forth the militia in three specified cases: for organizing, arming and disciplining them; and for governing such part of them as may be employed in the service of the United States; reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress. It is further provided that the president of the United States shall be commander of the militia, when called into the actual service of the United States. 2. After the constitution went into operation, congress proceeded, by many successive acts, to exercise these powers, and to provide for all the cases contemplated by the constitution.
$ 162. Calling out the militia.
The act of the 2d of May, 1792 (1 Stats. at Large, 259), which is re-enacted almost verbatim by that of the 28th of February, 1795, authorizes the president of the United States, in case of invasion, or of imminent danger of it, or when it may be necessary for executing the laws of the United States, or to suppress insurrections, to call forth such number of the militia of the states most convenient to the scene of action, as he may judge necessary, and to issue his orders for that purpose to such officer of the militia as he shall think proper. It prescribes the amount of pay and allowances of the militia so called forth, and employed in the service of the United States, and subjects them to the rules and articles of war applicable to the regular troops. It then proceeds to prescribe the punishment to be inflicted upon delinquents, and the tribunal wbich is to try them, by declaring that every officer or private who should fail to obey the orders of the president in any of the cases before recited should be liable to pay a certain fine, to be determined and adjusted by a courtmartial, and to be imprisoned by a like sentence, on failure of payment. The courts-martial for the trial of militia are to be composed of militia officers only, and the fines to be certified by the presiding officer of the court to the marshal of the district, and to be levied by him, and, also, to the supervisor, to whom the fines are to be paid over.
$ 163. Courts-martial, how composed. Act of April 18, 1814.
The act of the 18th of April, 1814 (3 id., 131), provides that courts-martial, to be composed of militia officers only, for the trial of militia, drafted, detached and called forth for the service of the United States, whether acting in conjunction with the regular forces or otherwise, shall, whenever necessary, be appointed, held and conducted in the manner prescribed by the rules and articles of war for appointing, holding and conducting courts-martial for the trial of delinquents in the arıny of the United States. Where the punishment prescribed is by stoppage of pay or imposing a fine, limited by the amount of pay, the same is to have relation to the monthly pay existing at the time the offense was committed. The residue of the act is employed in prescribing the manner of conducting the trial; the rules of evidence for the government of the court; the time of service and other matters not so material to the present inquiry.
$ 164. Act of May 8, 1792, for establishing a uniform militia.
The only remaining act of congress which it will be necessary to notice in this general summary of the laws is that of the 8th of May, 1792 (1 id., 271), for establishing a uniform militia in the United States. It declares who shall be subject to be enrolled in the militia and who shall be exempt; what arms and accoutrements the officers and privates shall provide themselves with; arranges them into divisions, brigades, regiments, battalions, and companies, in such manner as the state legislatures may direct; declares the rules of discipline by which the militia is to be governed, and makes provision for such as should be disabled whilst in the actual service of the United States. The pay and subsistence of the militia, whilst in service, are provided for by other acts of congress, and particularly by one passed on the 3d (20?) of January, 1793. 1 Stats. at Large, 408. The laws which I have referred to amount to a full execution of the powers conferred upon congress by the constitution. They provide for calling forth the militia to execute the laws of the Cnion, suppress insurrections and repel invasion. They also provide for organizing, arming VOL. VI --4