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REPORTS OF THE DECISIONS
of the
Supreme Court of the United States.
April 12, 1869
THE STATE OF TEXAS
V.
GEORGE W. WHITE, JOHN CHILES, JOHN A. HARDENBERG,
SAMUEL WOLF, GEORGE W. STEWART,
THE BRANCH OF THE COMMERCIAL BANK OF KENTUCKY,
WESTON F. BIRCH, BYRON MURRAY, JR., AND SHAW.
(See S. C., 7 Wall., 700-743.)
[The Civil War produced three constitutional amendments. None dealt with secession. In 1869, Chief Justice Salmon Chase used the opportunity of a boring case involving government bonds to rule on the illegality of secession and make the illegality a part of constitutional doctrine. Richard McLaren, now in federal prison, of our present secessionist Republic of Texas organization mentioned Texas v. White with hostility as he acted out his secessionist/libertarian fantasies in a hostage-taking situation in 1997. It also gets hostile mention on the
Sons of Confederate Veterans site.
This case is long, dense, mind-numbing, and difficult to decipher, but it is of monumental significance. The "personal right" that the district court has found in
US v. Emerson has secessionist implications for the individual. The right to secession applied even to individuals is a plank in the
Libertarian Party Platform.]
[Part 1: Statement of the Case. 17K.
Part 2: Attorneys for the Complainant. 16K.]
Part 3: Attorneys for the Defendants. THIS FILE
[Part 4: Opinions of Chief Justice Salmon Chase and Justice Robert Grier and Justice Noah Swayne. 61K.]
Messrs. Albert Pike, Robert W. Johnson, and
a James Hughes, for Chiles, defendant:
If Texas is not a State, or, being a State, is a
not in the Union, it is not competent to sue here. If
it be a State, it is not one of the United States
because it is not permitted to be represented in
Congress and to have a voice in the legislation of the
country. No State can, without its consent, be
deprived of its equal suffrage in the Senate. Every
State included within this Union is entitled to be
represented; and if deprived of representation, is
excluded from the Union.
It is not one of the United States, because it is
not permitted to have a voice in the election of
President and Vice-President of the United States; a
right of which, like that of representation, a State
of the Union cannot be deprived.
It is not one of the United States, because it is
held and governed by the other States as a conquered
province. It ceased to be a State upon its conquest.
The States of the Union are sovereign, at least as to
all their reserved rights and powers. So this court
has again and again decided. A subjugated State held
in bondage, governed by a military proconsul, declared
by Congress to have no legal government, and its
actual government subordinate to the military power,
to be merely provisional, is no longer a State, any
more than California was, after it was conquered by
the United States; or Ireland, after it was subjugated
by England; or Poland, after it was partitioned. The
Act of Congress of March 25, 1867, declared Texas to
be a rebel State, and provided for its government
until a legal and republican state government could be
legally established. It constituted Louisiana and
Texas, the 5th military district, and made it subject,
not to civil authority, but to the military authority
of the United States. Over each military district an
officer, not below the rank of Brigadier-General, was
placed in command, with power to protect all persons
in their rights of person and property, to suppress
insurrections, disorder and violence, and punish, or
cause to be punished, all criminals and disturbers of
the public peace. He might allow the local civil
tribunals to take jurisdiction of and try offenders,
or organize military commissions and tribunals for
that purpose. This provision abrogated the
Constitution of the State, in respect to the judicial
power, and deprived the people of their dearest
right— that of trial by jury. It excluded Texas
from the Union, because it deprived the people of that
State of the benefits of the first and sixth
amendments of the Constitution.
If the court should determine that Texas is still
a State in the Union, competent to sue here, it will
then become necessary to inquire as to the validity of
the contract made with White & Chiles, by the Military
Board, under the authority of the acting Legislature.
The court must determine whether the Slate existed and
acted during the war, and if so, what acts done by it
were valid.
How could the secession or revolt of Texas as a
State, destroy its existence as a State? It did not
derive that existence from the United States. The
people did not cease to exist; they did not become a
disorganized mob; the government remained unchanged;
the State made war and was completely independent of
the United States for four years, In fact exercising
all the prerogatives of internal sovereignty. It
ceased to be a State, how could it, if it had
succeeded, not merely have become a State upon that
success, but all the time have been so?
If we concede that the formal and deliberative
attempt of eleven of the States of the Union to
dissolve the political bonds that had connected them
with the other States; if we concede that a movement
of such magnitude, so almost unanimous and made with
so much cool ness and deliberation, was not in law the
movement and action of the States in question, but
only of so many of their people as united in it, still
we invite the earnest attention of the court to the
grave and serious question, whether the action of the
people of each State could be treated as a rebellion,
and in point of law was such, after it had assumed the
proportions of a great public war.
No tribunal ever had before it for its decision a
question of greater gravity and importance; for it not
only affects vast numbers of men and concerns their
rights of property, and their civil and political
franchises, but also communities and States, their
contracts, their laws, the judgments of their courts,
their good faith and honor.
It is insisted that all Acts done by the Slate of
Texas or the government de facto of the State
during the war which were contrary to the Constitution
of the United States, were void. It was not contrary
to that Constitution to sell the bonds in question,
nor was it contrary to that instrument to buy cotton
cards and medicines for the people, with the proceeds
of the bonds or with the bonds themselves.
If the contract in question was invalid as
contrary to the Constitution of the United States, it
must be on the naked ground that secession made the
government of the State unlawful, and that all it did
was void. The allegation of the bill and its ground
for relief is, that, for want of authority to make the
contract and because it was contrary to law and done
for the unlawful purpose alleged, it did not affect
the title of Texas to the bonds, or transfer any right
or title to White & Chiles.
Such Acts and contracts on the part of a
revolutionary government, are never void. They are
done for the benefit of the people of the State, and
that people, when the government changes, cannot
repudiate them. Nor, indeed, was the Government of the
State revolutionary, in any true sense of that word,
because It was the same government as before, and
there was no internal change whatever in the State.
If it should, contrary to our hope, be thought
that in regard to the status of the State of
Texas and its people during the war, this court is
bound to be governed by the action and decision of the
political power of the government, and must,
therefore, enunciate as applicable here, the doctrines
laid down by Mr. Dana, then we shall with great
deference submit that the political power is estopped,
by its own declaration and action, to apply these
doctrines; and that this court has so decided in the
Prize Cases and the case of Mrs. Alexander's
Cotton.
The people of Texas, who, in the language of
Mr. Justice Iredell, in Chisholm v.
Georgia, 2 Dali., 448, created the State, their
voluntary and deliberate choice being the pure and
sacred source from which the State derives its
authority; the people of that State to whom, in the
words of Justice Wilson, in the same case (ld, 455),
the State is subordinate; the people, the complete
body of whom united together in the State and cannot
be denied to be so, nor their deliberate act not to be
its act without striking a blow at the very foundation
of all republican or otherwise free government, having
sold these bonds to persons not shown to have been
incompetent or disqualified to contract with the de
facto government of the State to furnish for the use
of its Citizens articles not contraband of war, now
comes here to demand of loyal citizens of the United
States the bonds which it was taus instrumental in
putting upon the market, in order that it may be
repaid by the United States what otherwise, by the
fortune of war, it would have lost.
If, as the bill alleges, the purpose of the sale
was to procure means with the aid whereof to carry on
the war and the contract, was, therefore, an unlawful
one, then the case is all the worse, since the purpose
of the bill is to enable the people of Texas to
reclaim from the United States the amount of their
bonds which the same people had put in circulation to
injure the United States.
Will that people be allowed to use the fiction
that the State and people, the corporation and the
corporators, are different in law, for the purpose of
compelling the United States or their loyal citizens
to pay, to the amount of the bonds reclaimed, with
interest, the expenses incurred by the people of Texas
in carrying on the war. We say their loyal citizens,
because the bill does not impeach the loyalty of
either White or Chiles, or of these purchasers of the
bonds.
If these bonds had been disposed of by faithless
agents against the will or against the consent of the
people of the State, the case would be very different;
but it neither was so, nor is any such allegation made
to the bill; and what is not alleged cannot be proven.
Again; if the contract was an unlawful one, made
by the people, through the agency of the government,
created and sustained by them, and thus made by the
State, will the court, in the exercise of its
equitable jurisdiction, give the same people or State
any assistance or relief, to enable them to avoid the
consequences of a contract made in violation of law or
against public policy, or contrary to the laws of
nations, which invalidate dealings with the enemy?
The general principle, for which we need not cite
authorities, is, that where a contract is contrary to
law or public policy, neither party to it can have any
remedy against his particeps criminis in a
court of justice. No relief in regard to it will be
given, either in law or in equity. If the contract is
already executed, it cannot be set aside as illegal or
immoral; for it is a
maxim that in pari delicto, melior est conditio
defendentis. There is no fraud or mistake in this
case. The State and people of Texas were equally in
delicto with those to whom they sold the bonds.
Texas has chosen to allege that the purpose was
unlawful, and it cannot have relief on the ground that
its own allegation is untrue. Can any such fiction as
that there was a State of Texas in January, 1865,
distinct and different from the people of Texas, and
from the State of Texas actually existing and waging
war, contracting and legislating, and that this State
did not make the contract, but now comes here to
repudiate it? Can such a fiction of a mere imaginary
being relieve the actual, living, palpable State, if
it is still a State, and not a Province, from the
application of the principle which we have stated?
It is upon this fiction that the people of Texas
are now presented here in the humiliating attitude of
repudiating a contract entered into by their chosen
and trusted officers, while they are engaged in a war
for independence.
It is upon it that they seek to be saved from the
loss otherwise to be borne by them in consequence of
acts which they allege to have been unlawful, and
which were yet done by their authority. It is not a
fiction of law that the people of a State are not that
State, so as to be responsible for the acts of the
government of the State; but a mere fiction without
the law, and one which is very far from being in
furtherance of justice.
Mr. J. M. Carlisle, for Hardenberg,
defendant:
Mr. Hardenberg's case is wholly unconnected with
that of either of the other defendants, except by the
fact that, as to all the bonds purchased by him except
one, they were at the time held by White and Chiles,
under the contract of January, 1865, exhibited with
the bill. Under this title, or as the complainant must
admit, at I least color of title and possession,
followed the contract. It now appears that White and
Chiles disposed, among others, of the Hardenberg
bonds; but when, where, and to whom, or what
consideration Is not alleged or proven, or possible to
be inferred from the record. That they treated the
bonds as their own under the contract, and did dispose
of them, and have now no pretense of claim to the
Hardenberg bonds, is admitted by them in this suit.
Hardenberg knew nothing of the bonds, except what
appeared on their face and from the published official
Treasury Report, that similar bonds of the same issue
had been paid and redeemed at the Treasury of the
United States, notwithstanding the secession of Texas,
and the civil war and rebellion, which had been
suppressed, In point of fact, more than a year and a
half before his purchase. He had no knowledge or
information that Texas had, at any time, assumed to
alter the terms of the contract of the United States,
as expressed on the face of the bonds, so as to
expunge from them the express declaration that they
were payable to "bearer," and the repeated declaration
to the same effect, that the bonds passed "by
delivery." He, therefore, was not affected by the fact
that the bonds were not indorsed by the Governor of
Texas (if that alteration of the tenor of the bonds
had any legal efficacy), and was wholly ignorant that
such indorsement had been authorized or required by
Texas for its security against fraud, or for any other
purpose.
He had no knowledge or information that the bonds
purchased by him had ever been held or claimed by
White and Chiles, or either of them; or that any such
contract as that set up by the 1 bill had been made.
In brief, he was a perfect stranger to all and
singular the matters alleged 1 by the bill as
affecting the title to the bonds,
He found them in open market, in the City of New
York, in November, 1866, and bought them in good faith
and for their full market value, of brokers and others
of high standing, in the usual and regular course of
business, not only without knowledge or notice, but
without 1 suspicion, or reason to know or suspect that
there was any infirmity in the title of his respective
vendors, or any of them.
It is a misnomer and a confusion of ideas to call
the Government of Texas at the date of the contract
with White and Chiles, a defacto government, it was
the Government of the State; the only embodiment of
the abstract idea of a State which had ever been it
existence for an instant, since its admission into the
Federal Union.
But if it were the case of a contract made by a
usurped or revolutionary government, which for four
years had been, as the bill itself shows and the
public history attests, in the firm and exclusive
possession and exercise of all the attributes of state
sovereignty, there can be no doubt or question in the
mind of any publicist that such a contract was valid
and binding upon the State so governed, and is valid
and binding on the government when restored. It would
be a vain parade of learning to cite authorities for a
proposition so universally admitted in the public law
of nations.
The complainant's second proposition surrenders
the first, argumenti gratia, and founds itself
upon the contract, affirming its original validity,
and pretending in matter of fact, that White and
(Chiles failed to perform its stipulations on their
part.
Their second proposition is, then, in effect, the
want of consideration for the transfer. At most, the
fact of the transfer of a bill or note when overdue,
is to subject it, in the hands of the holder, to all
its equities; to all the equities with which it is
incumbered at the time of the transfer.
An original absence of consideration is not one of
those equities which attach on an instrument and
defeat the title of an indorsee for value of an
overdue bill, although with notice of the fact.
Charles v. Marsden, 1 Taunt., 224;
Sturtsvant v. Ford. 4 M. & G., 101; Lazarus
v. Gowie, 3 Q. B., N. S., 459; Stein v.
Yglesias, 1 C. M.
&R.. 565.
Mr. P. Phillips, for White, defendant:
We are first to inquire as to the status of
the complainant.
This question involves the consideration, whether
at the filing of the bill Texas was a State, within
the meaning of that clause of the Constitution which
confers original jurisdiction in this court, where a
State is a party.
In Hepburn v. Ellzey, 2 Cranch, 452, it was
strenuously contended that a citizen of this District
was a citizen of a State in the constitutional sense,
so far as to enable him to maintain a suit in the
circuit court; that Columbia was a distinct political
society and, therefore, a State, according to the
definition of writers on general law.
This definition is declared by Judge Marshall not
applicable to the Constitution, which, by its several
provisions, shows that those political bodies only who
were entitled to representation in the Senate and
House of Representatives, and the appointment of
electors, were intended.
This doctrine was applied in the case of New
Orleans v. Winter, 1 Wheat., 91, to a citizen of a
Territory; the court holding, that though a Territory
may differ from the District of Columbia in many
respects, neither of them is a State in the sense in
which the term is used. 5 How., 379.
Now, what is the condition of Texas? It is denied
the right of representation in Congress, and all power
to appoint electors. Its State Government is declared
to be illegal. All authority to govern it is lodged in
a military commander; civil tribunals are made
subservient to his dictation; the regulation of the
right of suffrage is assumed by Congress; a
provisional governor is appointed by the President to
act in subserviency to military authority. This
condition of things is wholly inconsistent with the
idea that there remains with the people of Texas any
political power whatever, or that they are entitled to
any of the guaranties of the Constitution of the
United Stales.
Our next inquiry is, as to the terms of the
agreement.
The bill alleges that, admitting that the contract
was made with a de facto government— yet,
as Its conditions and stipulations were not performed,
the complainant is entitled to a restoration of the
bonds.
The answer is:
1. This is not a case of dependent covenants.
There was an absolute sale and delivery of the bonds.
Then the other side stipulates to deliver certain
commodities. These are two separate contracts. 2 Pars.
Cont., 44).
2. For the performance of this contract, security
was given according to the stipulation of the parties.
3. The parties agreed upon the mode by which a default
should be paid.
Invalidity of the Agreement.
First. It is alleged that the contract is illegal, the
object being to overthrow the Government of the United
States.
On its face, there Is nothing Illegal nor immoral
in the agreement. To supply a State with cotton cards
and medicines is not only innocent but legitimate.
But it is sought to attach an illegal intent to
what is fair in itself.
It is not sufficient that in such a case the
illegal motive should have existed on the part of the
State of Texas, but to affect the defendant, it must
be clearly established that it entered into his
intention and design; that the articles furnished
should be used for an illegal purpose and that, in
point of fact, they were so used. Hodgson v.
Temple, 5 Taunt., 181.
Bare knowledge on the part of the vendor, that the
vendee intends to put the goods or money to an illegal
use will not vitiate the sale or loan and deprive the
vendor of a remedy for the purchase money. Dater v.
Earl, 3 Gray, 482.
A contract is, therefore, not void, because there
may be in its surroundings or connection something
illegal, though it is void when the consideration is
illegal.
The distinction may be Illustrated by two Cases:
Goods were sold to one who intended to smuggle
them, and the vendor, who knew of the design,
recovered the price. Holman v. Johnson. Cowp.,
454.
But where goods were sold, and the vendor not only
knew that they were to be smuggled, but put them up in
a particular manner so ai to enable it to be done, it
was held that the price could not be recovered.
Biggs v. Lawrence, 3 T.R., 454.
But, assuming the illegality, what is the position of
the complainant in a court of justice?
1. If the bill can be maintained on the assumption
that Texas is a State, then, for the purposes of the
case, it is the same State that existed when this
contract was entered into.
The State being essentially the same, has no
standing in court to assert the invalidity of its own
agreement.
2. "In pari delicto, melior est conditio
possidentia," is a maxim of public policy, equally
respected in courts of law and equity.
Thus no recovery can be had for premium paid for
insurance to cover a trading with the enemy; nor for
property placed In the hands of another to be
smuggled. Broom, Leg. Max., 565, 566, 567; Adam. v.
Berrett, 5 Geo., 404.
Second. The right to recover those bonds Is based
upon the allegation that there was no authority in
Texas competent to enter into an agreement during the
rebellion.
This proposition maintains that from the date of
the Ordinance of Secession to the adoption of the
present Constitution, there existed no competent
public authority capable of entering into a contract.
If this be true, there was no power of legislation, no
executive or judicial authority; and all that has been
done on the assumption of such authority is absolutely
null and void. No contract, however solemn in its
nature, which depends for its consummation on official
sanction, can be sustained.
Marriages are to be held null because the marriage
ceremony was performed or the marriage license granted
by an officer without authority; judgments of courts,
in civil and criminal cases to be held for naught for
the like reason, and all concerned in their execution
to be made responsible, civilly and criminally, as for
usurpation of power.
The shocking consequences of such a doctrine is
itself its best refutation, The civilized world
recognizes the necessity of government at all times;
and no authority on the law of nations holds any
language inconsistent with this necessity.
A State can only act through its agents, and it
would be absurd to say that any act was not done by
the State which was done by its authorized agents.
Briscoe v. Bk. of Ky., 11 Pet.,
318.
Having thus disposed of the question of ownership
in the State, we now call attention to the second
point of the complainant, who, "admitting the
ownership of the State, denies that it could transfer
a valid title by such a contract as that set out in
this case."
The bill charges that the contract was without
authority, contrary to law, and contemplated and
proposed as part of the consideration an unlawful
object, to wit: the overthrow of the Government of the
United States.
There is no allegation that the illegal intent was
shared in by the defendant. There is not a title of
evidence to establish that fact, and there is the
sworn statement in the answer: "The contract was made
for the express benefit of the people of Texas, and
not for the purpose of aiding the Confederate
Government."
But whatever was the motive which actuated the
Board, whether legal or illegal, the defendant cannot
be affected by it. Even his knowledge of such
intention, if he were not a sharer in the transaction
and did not enter into it for the very purpose of
accomplishing the illegal design, could not deprive
him of his rights under the contract.
Hodgson v. Temple, .5 Taunt,. 181, 503;
Carman v. Bryce. 3 B. & Al., 179; Holmam v.
Johnson,, Cowp., 341; Dater v. Earl, 3
Gray, 482.
But if the contract were Illegal, and both parties
were involved in the illegality, then it would follow
that if the bonds had not been delivered, the court,
on this ground, would refuse to enforce the delivery,
and if delivered, the court would, on the same ground,
refuse to decree their restoration. Bartle v.
Coleman, 4 Pet., 188; Creath v. Sims, 5
How.. 204 Randall v. Howard, 2Black, 588 (67 U.
S. XVII, 270).
The effect of this principle is sought to be
avoided by distinguishing the State from the State
Government. The contract, it is said, is made by the
State Government and not by the State, but we have
already shown that there is no such distinction.
The uniform decisions of this court apply to
contracts of a State the same rules they apply to
contracts of individuals. I know of no case where a
distinction has been made.
Bank of U. S. v. Planters' Bank, 9 Wheat.,
904; Brisco v. Bk. of Ky., 11 Pet., 324; U.
S. v. Bk. of Metropolis, 15 Pet., 892; Bk. of
U. S. v. U. S., 2 How., 782.
When, therefore, the State comes into court with
the allegation that the contract, which it seeks to
set aside, was entered into by it for the purpose of
obtaining means to overthrow the Government of the
United States, it states a transaction which at once
deprives it of all aid from courts of justice.
Messrs. S. S. Cox and J. W. Moore,
for Weston F. Birch, Byron Murray, and others,
defendants.
Part 1: Statement of the Case. 17K.
Part 2: Attorneys for the Complainant. 16K.
[TOP, Part 3, THIS FILE]
Part 4: Opinions of Chief Justice Salmon Chase and Justice Robert Grier and Justice Noah Swayne. 61K.
[PotowmackForum], interactive posting
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[Printz and Mack PAGE]
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