UNIVERSITY OF CALIFORNIA 
 AT LOS ANGELES
 
 \
 
 TEXAS ^ R sus WHITE 
 
 A STUDY IN LEGAL HISTORY 
 
 BY 
 
 WILLIAM WHATLEY PIERSON, JR. 
 
 INSTRUCTOR IN HISTORY 
 UNIVERSITY OF NORTH CAROLINA 

 
 TEXAS versus WHITE 
 
 A STUDY IN LEGAL HISTORY 
 
 By WILLIAM WHATLEY PIERSON, Jr. 
 
 INSTRUCTOR IN HISTORY 
 UNIVERSITY OF NORTH CAROLINA 
 
 Submitted in Partial Fulfilment of the Requirements for the 
 
 Degree of Doctor of Philosophy in the Faculty 
 
 of Political Science of Columbia 
 
 University 
 
 
 I hiui \M, N. C. 
 
 The See. man Pr inter y 
 
 1916
 
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 To 
 My Mother and Father 

 
 PREFATORY NOTE 
 
 The following study of the case of Texas v. White and 
 Chiles et als. is the result of investigations begun in 1912 for 
 a seminar paper in American History at Columbia University. 
 At the suggestion of Professor William A. Dunning and urged 
 by his own feeling that there was a place for an extended 
 study of the great case, the writer expanded and amplified 
 those preliminary investigations. A large part of the present 
 essay was published in 1915 in the Southwestern Historical 
 Quarterly, and is now reproduced through the courtesy of the 
 editors of the publication. For the purpose of its present 
 form, however, it has been subjected to thorough revision and 
 has been somewhat enlarged. 
 
 In large part, the monograph deals with certain aspects 
 of American political theory, about which there has been and 
 is much bitter controversy. In view of this fact, he admits 
 feeling some hesitancy in submitting the section on "The 
 Location of Sovereignty in the United States." While this 
 section is presented as setting forth the ideas and theory of 
 the court, it is but right to say that in the writer's conception 
 this theory is the best explanation of the Union. If the essay 
 may serve to throw more light upon this theory, it shall have 
 largely achieved its purpose. It is doubtless unnecessary to 
 disavow any intention of theorizing or speculating about the 
 nature of sovereignty. 
 
 The writer has been greatly aided by the suggestions and 
 comments of friends to whom he returns sincere thanks. To 
 the officers in the library of the Supreme Court his thanks are 
 due for many courtesies. In particular, he wishes to express 
 his sincere gratitude to Professor Eugene C Barker, of the 
 I Hiversity of Texas, for his painstaking and critical reading 
 of the manuscript of the earlier article and for his editorial 
 suggestions, llis thanks are given also to Professor Chas. 
 \V. Ramsdell who read the manuscript and made many helpful 
 suggestions. He is under heavy obligation to Dr. L. R.
 
 6 Prefatory Note 
 
 Wilson, of the University of North Carolina, for many sug- 
 gestions as to form. To his friend and colleague, Professor 
 J. G. de Roulhac Hamilton, his sincere thanks are given for 
 much sympathetic advice, encouragement, and valued assist- 
 ance. His aid was particularly appreciated in making the 
 estimate of the change and revolution which occurred in 1789, 
 respecting the framing and adoption of the Constitution. The 
 writer wishes, above all, however, to make grateful acknowl- 
 edgment of indebtedness to Professor William A. Dunning, to 
 whose inspiration, guidance, and criticism is largely attributable 
 whatever of merit the monograph possesses. 
 
 Chapel Hill, N. C, 1915.
 
 TABLE OF CONTENTS 
 
 PAGE 
 
 Introduction 9 
 
 CHAPTER I 
 
 History of the Case 11 
 
 The Texas Indemnity Bonds 11 
 
 Secession of Texas 15 
 
 The State Military Board and the Disposal of the 
 
 Bonds 17 
 
 Restoration and Reconstruction of Texas 21 
 
 Transfers of Bonds from White and Chiles 28 
 
 CHAPTER II 
 
 The Argument of the Lawyers 32 
 
 CHAPTER III 
 
 The Opinion of the Court 40 
 
 The Question of Authority 40 
 
 The Question of Jurisdiction 41 
 
 1. The American State 41 
 
 2. The Location of Sovereignty in the United States 47 
 
 The Court's Theory 47 
 
 Application of Theory 50 
 
 3. The Contract Theory and Secession 57 
 
 4. The Consequences of Rebellion 64 
 
 5. Restoration and Reconstruction 66 
 
 The Matter of the Injunction 76 
 
 The Effect of the Payment by the Treasury 80 
 
 The Dissenting Opinions 80 
 
 The Decree 84
 
 8 Table of Contents 
 
 CHAPTER IV 
 
 Subsequent Litigation 86 
 
 Texas v. Hardenberg 86 
 
 Texas v. Chiles 87 
 
 In Re Paschal 88 
 
 Huntington v. Texas 94 
 
 Texas v. The National Bank of Washington 96 
 
 In Re Chiles 98 
 
 CHAPTER V 
 
 Bibliography 101
 
 INTRODUCTION 
 
 The case of Texas v. White is of interest and importance 
 from the standpoint of Texas history, of constitutional law, 
 and of American political theory. In this paper, attention will 
 be directed to these three aspects. Except the report in which 
 the history of the case has been briefly sketched, such a treat- 
 ment has not, so far as I know, been yet attempted. 1 The case 
 is of value at present, in addition to its historical and legal sig- 
 nificance, because in the opinion of the court is embodied the 
 theory of the nature of the Union last professed by the judicial 
 department of our government. It compels the attention, 
 therefore, of those who would understand the political theory 
 upon which our present American system legally rests. 
 
 One of the many problems arising for solution out of the 
 great War of Secession was that of the determination of the 
 legal status of the so-called rebel States. The gravity of this 
 question was early appreciated, and, as soon as the outcome 
 of the struggle was fairly evident, the political leaders began 
 serious consideration of its various aspects. The theory an- 
 nounced by Mr. Lincoln at his inauguration, to which he ad- 
 hered throughout the war, for many reasons no longer satis- 
 fied the large element of radicals in the North. As a partial 
 expression of this discontent, Sumner, in 1862, had submitted 
 his State-suicide theory. 2 The break with the executive in 
 this regard had seriously disturbed the political relations with- 
 in the dominant party in 1864 and had in part caused the Fre- 
 mont movement which was for a time so formidable as to en- 
 danger the reelection of Lincoln ; and after the war, when the 
 evolution and application of a definite programme became an 
 actual and pressing necessity, the points of difference in the 
 opinions and desires of the various groups became more 
 noticeable and important. Concerning the proper course to 
 follow in restoring the Southern States to the Union — and 
 
 '7 Wallace, 700; 25 Texas (Supplement) Reports. 
 
 2 Dunning, Essays on the Civil War and Reconstruction, 105.
 
 10 Introduction 
 
 each course proposed necessitated the formulation of a theory- 
 respecting the status of those States — the departments of the 
 government developed theories, which in many essential par- 
 ticulars were radically different from one another. 3 Despite the 
 fact that during a large part of the Reconstruction period, the 
 executive and judicial departments suffered in prestige and 
 power from the extraordinary ascendancy of Congress, the 
 views presented therein form an important contribution to 
 American political theory. The theory of the judicial depart- 
 ment was submitted by the Supreme Court in the opinion in 
 the case of Texas v. White, and a consideration of it in that 
 regard, therefore, is a part of the purpose for which this paper 
 was written. 
 
 3 For critical and incisive analysis of the various theories respecting 
 the status of the Southern States, see Dunning, Essays on the Civil 
 War and Reconstruction, 103 ct seq.
 
 TEXAS versus WHITE 
 A STUDY IN LEGAL HISTORY 
 
 CHAPTER I 
 
 HISTORY OF THE CASE 
 
 "The State of Texas, one of the United States of Amer- 
 ica," 1 filed suit, on Februrary 15, 1867, against the following 
 individuals : George W. White, John Chiles, John A. Harden- 
 berg, the firm of Birch, Murray & Company, and others. 2 
 The petition prayed an injunction against the persons named 
 in order to prevent them from setting up a claim to or obtain- 
 ing the payment of certain bonds, known as the Texas Indem- 
 nity Bonds, from the Treasury of the United States, and, 
 finally, that they be constrained to restore the bonds to the 
 petitioners, who claimed to be the accredited representatives of 
 the State of Texas. The bill in the suit particularly demanded 
 the return of some fifty of these bonds which were known to 
 be in the possession of the persons against whom these in- 
 junction proceedings were aimed. This suit was instituted be- 
 fore the Supreme Court of the United States. Such action 
 was in accordance with that provision of the Constitution 
 which ordains that the Supreme Court shall have original 
 jurisdiction of cases in which a "State" shall be a party. 3 
 
 The Texas Indemnity Bonds 
 
 The history of the bonds mentioned in this suit properly 
 begins with that of certain Texas claims against the United 
 States which grew out of conditions antecedent to annexation 
 
 1 Record of the Case, 2. Record of Cases, 1876. Found in the 
 library of the Supreme Court at Washington. 
 
 2 The bill in the suit mentioned the following persons or corpora- 
 tions: George W. White, a citizen of Tennessee; John Chiles, of New 
 York; J. A. Hardenberg, of New York; Samuel Wolf, of Kentucky; 
 G. A. Stewart, of Kentucky; Bank of the Commonwealth of Kentucky; 
 W. F. Birch, of New York; Byron Murray, Jr., of New York; and 
 Charles P. Shaw, of New York. Ibid. 
 
 3 Section II of Article III of the Constitution.
 
 12 Texas v. White 
 
 and, subsequent to that event, out of demands for the settle- 
 ment of territorial boundaries. The people of Texas, before 
 annexation, expected the United States to assume the debts of 
 ■the Republic should Texas be incorporated into the Union, 
 and this was not an unreasonable expectation. On the con- 
 trary, it was considered by many a fair exchange. As a re- 
 public, Texas had all the rights of taxation and the possibili- 
 ties of revenue which are associated with sovereign power, 
 but on entering the Union as a State, many of these rights and 
 possibilities were relinquished to the United States. In ad- 
 dition, certain public properties and war stores were surren- 
 dered to the United States. For none of these was there any 
 adequate return provided in the joint resolution of annexation. 
 This resolution, indeed, expressly stated that in no event were 
 the "debts to become a charge upon the United States." 4 
 This statement was not necessarily decisive, since it was, 
 no doubt, introduced to render more certain the passage of a 
 measure which had not before enjoyed general popularity. 5 
 
 Although Texas accepted the proposition of annexation, 
 it was with strenuous and continued protest against the in- 
 justice which was considered to have been done. It was in- 
 sisted that the United States should assume the debts of the 
 old republic. In addition, certain territorial claims caused 
 trouble. Originally, Texas claimed as her western boundary 
 the Rio Grande to its source, and thence north to the line of 
 42 degrees latitude. 6 After the Mexican War the United 
 States sought to contract this claim. For reasons unnecessary 
 to state here, the controversy over these lands became more 
 and more bitter, until, finally, the State determined to assert 
 its right to the territory by force should the United States 
 government continue to dispute the claim. 7 Such, in brief, 
 
 4 Joint Resolution No. 8, 28th Cong., 2d Sess., 1845, U. S. Statutes at 
 Large, V, 797. 
 
 ° Smith, Annexation of Texas, 323 et scq.; Texas Annexation Pam- 
 phlets in Columbia University Library. 
 
 6 Shepherd, Historical Atlas, 198. This claim included parts of the 
 present States of New Mexico, Oklahoma, Kansas, Colorado, and 
 Wyoming. See Garrison, Texas, 165. 
 
 7 Rhodes, History of the United States since the Compromise of 
 1850, I, 190.
 
 History of the Case 13 
 
 was the case when the compromise measures of 1850 were 
 adopted by Congress. The facts which have been stated were 
 the occasion of one feature of this compromise, the provisions 
 for the Texas indemnitv and for the establishment of a terri- 
 torial government for Xew Mexico being embodied in one bill. 
 The fourth article of the bill declared that 
 
 The United States in consideration of said establishment of 
 boundaries, cession of claim to territory, and relinquishment 
 of claims, will pay to the State of Texas the sum of ten 
 millions of dollars in a stock bearing five per cent, interest, and 
 redeemable at the end of fourteen years, the interest payable 
 half-yearly at the treasury of the United States. 8 
 
 Of this sum, five millions became the property of the State im- 
 mediately, and the other half was reserved in the national 
 treasury to be issued to the holders of the Texas debt. !) Those 
 who were to profit by this appropriation were the "creditors of 
 the State holding bonds and other certificates of stock of 
 Texas, for which the duties on imports were specially 
 pledged." 10 On November 25, 1850, an act of the Texas legis- 
 lature declared that, "the State of Texas agrees to and accepts 
 said propositions, and it is hereby declared that the said State 
 shall be bound by the terms thereof, according to their true 
 import and meaning." 11 
 
 It was not until December 16, 1851, however, that a law 
 was passed designating a receiver of the bonds. On that date 
 the comptroller of public accounts was ordered to proceed to 
 Washington and convey them to the state treasury at Austin. 
 The bonds were then to be disposed of as the legislature 
 should ordain, "provided, that no bond, issued as aforesaid, 
 as a portion of the said five millions of stock, payable to the 
 bearer, shall be available in the hands of any holder until the 
 
 8 U. S. Statutes at Large, IX, Ch. 49, 446-447. 
 
 "For an account of the public debt of Texas and the disposition of 
 this sum, see Gouge, Fiscal History of Texas, 179-191 ; also the opinion 
 of Attorney-General Caleb dishing in Opinions of the Attorney Gen- 
 erals, VI, 130 et seq. 
 
 10 U. S. Statutes at Large, IX, Ch. 49, pp. 446-447. 
 
 11 Gammel, Laws of Texas, III, 832-833.
 
 14 Texas v. White 
 
 same shall have been indorsed by the Governor of the State 
 of Texas." 12 
 
 Obviously this was intended as a general law imposing 
 upon the governor of the State by statute the duty of endors- 
 ing each bond as it was made use of. Since at a later time 
 much was made of this requirement, it will be profitable to 
 ascertain whether or not it was ordinarily complied with, and 
 whether it had any effect upon the title of the holder after 
 bonds had passed from the possession of the State. Accord- 
 ing to the statement printed upon the face of the bond, it was 
 payable to Texas or the bearer after the expiration of fourteen 
 years. This was, therefore, a contract between the United 
 States on the one hand and Texas or the holder on the other. 
 When the State of Texas endeavored to alter the contract by 
 requiring the endorsement of the governor, the attempt was an 
 impairment of the contract, and was, therefore, of no effect 
 in law. 13 The real result of such an enactment was that it 
 prescribed certain duties to be performed by particular state 
 officials. It produced no defect, however, in the title of the 
 holder of a bond from which the signature had been withheld, 
 although it might indicate the possibility of illegal possession. 
 This appears to have been the trend of reasoning by which 
 the treasury officials were governed when such bonds were 
 presented for redemption. The State, moreover, was not 
 consistent in requiring, nor the governors in writing, this en- 
 dorsement. There was a number of laws passed, making 
 appropriations of either the bonds or the interest from the 
 matured coupons, which did not stipulate the necessity of the 
 governor's endorsement as an evidence of the validity of the 
 holder's title. 14 
 
 The use made of these bonds was varied. There was an 
 appropriation of more than two millions for the payment of a 
 part of the Texas debt unprovided for by the United States; 
 
 12 Gammel, Laws of Texas, III, 889-890; Paschal, Digest of Texas 
 Laws, 902. 
 
 13 Attorney-General Speed's opinion, 1865; Comptroller (U. S.) 
 Tayler's report. Reprinted in Paschal's Digest, 902 et seq. 
 
 14 Paschal's Digest, 903.
 
 History oe the Case 15 
 
 SI 00,000 of the accumulated interest was voted to a building 
 fund for the erection of a new state house then contemplated, 
 and $25,000 was set aside for furnishings. On January 31, 
 1854. an act was approved which provided for the establish- 
 ment of a school fund, and which dedicated $2,000,000 of 
 these bonds as an endowment for that purpose. 15 These bonds 
 were in the treasury when, in 1856, it was decided to lend a 
 part of them to certain railroad companies, which were at that 
 time planning to build lines within the State. 16 In this way 
 Texas would get the advantage of a higher rate of interest, 
 and at the same time would encourage industrial development 
 in the State, — then a policy quite generally approved. This 
 plan was carried out extensively, and, of the original fund set 
 apart for the public schools, there remained only about $800,- 
 000 when the State seceded in 1861. 1T 
 
 The Secession of Texas 
 
 With the causes which impelled Texas to sever her connec- 
 tion with the Union, this study has nothing to do. It is nec- 
 essary only to notice the fact of secession, and the method 
 by which it was accomplished. During the agitation preceding 
 this action, Governor Houston vehemently opposed disunion; 
 and, unlike many governors of the other Southern States, re- 
 fused to call a convention after the election of Lincoln. 
 Because of this continued opposition, an extra-legal step was 
 taken, and a proclamation, signed by sixty-one individuals, 
 was issued, which, among other things, called upon the people 
 
 "Gammel, Laws of Texas, III, 1461-1465. 
 
 10 Ibid., Vol. IV, 32-40. 
 
 "In 1855, the United States appropriated $7,750,000, in lieu of the 
 five millions already set aside for the Texas creditors. The addition 
 was made in compensation for certain sums expended hy Texas in 
 defense of her frontier against the Indians. The State was to be 
 repaid for any part of the debt already liquidated. This time no re- 
 striction was made as to the nature of the debt which the United States 
 proposed to pay. Any creditor might present certificates of the State's 
 indebtedness. U. S. Statutes at Large X, 33d Cong., 2d Sess., Ch. 133, 
 pp. 617-619. A part of this sum was in the national treasury as late 
 as 1870, and was made the basis of a new claim against the United 
 States. See report of (Texas) Comptroller of Public Accounts, 1870.
 
 16 Texas v. White 
 
 of Texas to elect delegates to such a convention. 18 In re- 
 sponse to this, an election was held, and delegates were return- 
 ed from some districts. On February 1, 1861, an ordinance of 
 secession was solemnly adopted. 19 After having been indorsed 
 by the legislature, this ordinance was submitted to the people 
 for their ratification or rejection. It was ratified by a vote of 
 46,129 against 14,697. 20 After this affirmative vote, the con- 
 vention reassembled, and declared, on March 4, that the vote 
 had resulted in the ratification of the ordinance, and that 
 Texas had withdrawn from the Union. Previous to this ex- 
 pression of the will of the people, delegates had been sent, on 
 the authority of the convention, to the Confederate govern- 
 ment, at Montgomery, Alabama. After the ratification of the 
 ordinance, a resolution was adopted requiring all state officials 
 to take an oath of allegiance to this government. The govern- 
 or and the secretary of state refused to comply with this order, 
 and their offices were forthwith declared vacant. 21 
 
 The senators and representatives in Congress were notified 
 of the State's action, and they, with the exception of Andrew 
 J. Hamilton, withdrew. Texas thus resumed the status of a 
 free and sovereign State, — so far as the action of her people 
 could accomplish that fact. The doctrine of State Sover- 
 eignty, so long cherished as a fundamental part of the political 
 philosophy of the South, thus found its final fruition in the 
 definite act of secession. Its efficacy, as a practical policy, 
 was now to be tested. The moral conviction of its righteous- 
 
 18 Among the names of these men was that of George W. White, the 
 defendant in this case. 
 
 For the circumstances attending the calling of the convention see 
 Sandbo, "First Session of the Secession Convention of Texas," in 
 The Southwestern Historical Quarterly, XVIII, 178-190. 
 
 19 The title of the ordinance was : "An Ordinance to dissolve the 
 union between the State of Texas and the other States, united under 
 the compact styled 'The Constitution of the United States.' " 
 
 :0 Winkler (editor), Journal of the Texas Secession Convention, 90. 
 Garrison, Texas, 287, gives the vote as more than 44,000 for secession 
 to about 13,000 against. The figures employed in the court records and 
 proceedings were 34,794 against 11,235. 
 
 21 Gammel, Laws of Texas, IV, 1528. The secretary mentioned was 
 Mr. E. W. Cave.
 
 History of the: Case: 17 
 
 ness — a part of the public consciousness of the time — was 
 strengthened in the effort to maintain the legal and practical 
 privileges deducible from the theory. 
 
 The State Military Board and the Disposal of the United 
 
 States Bonds 
 
 In the course of the struggle which followed, the Texas 
 legislature passed, in 1862, an act entitled "An act to provide 
 arms and ammunition, and for the manufacture of arms and 
 ordnance for the military defence of the State." 22 This law 
 was enacted as a result of a suggestion from the Confederate 
 secretary of war, Judah P. Benjamin. It appears that, in 
 1861, he created an ordnance agency to purchase arms and 
 supplies, and to have supervision of the sale of cotton to 
 foreign countries. As one of the agents of this department, 
 G. H. Giddings, a citizen of Texas, was sent to Matamoras, 
 Mexico. When he attempted to make arrangements with the 
 local bankers and merchants, he was informed that they pre- 
 ferred United States bonds to the Confederate securities he 
 was able to offer." 23 Giddings, knowing of the bonds at Aus- 
 tin, and thinking that they might be utilized to overcome the 
 objections of the Mexican and other foreign financiers, sug- 
 gested to Benjamin that some basis of exchange be agreed 
 upon with the State authorities. Accordingly Benjamin wrote 
 to Governor Lubbock, explaining the situation and requesting 
 the State to buy arms and ammunition with the bonds. He 
 promised that the Confederate government would then repur- 
 chase them with eight per cent. Confederate bonds then being 
 issued. 24 On receipt of the letter, the governor submitted 
 the matter to the legislature, which was then in session, and 
 recommended that he be empowered to comply with the sec- 
 retary's request. To meet this emergency, the legislature cre- 
 ated a Military Board and passed the act above mentioned. 
 
 22 Ibid., Vol. V, 484. 
 
 "Giddings to Benjamin, Official Records, War of the Rebellion, 
 Scries IV, Vol. 1, 774 (Serial No. 127). 
 "Benjamin to Lubbock, Ibid., 830.
 
 18 Texas v. White 
 
 This board was given sufficient powers to accomplish the pur- 
 poses of that law, being authorized to make use of any "bonds 
 or coupons which may be in the treasury on any ac it." 25 
 In the specification of the bonds the act was intentionally 
 comprehensive, so as to avoid in negotiating the bonds any 
 possible complications that might frustrate the purposes of 
 the act. 2 ' 5 
 
 On the same day (January 11, 1862), the legislature re- 
 pealed the act of 1851 which required the endorsement of the 
 governor in order to render the bonds available. In the re- 
 pealing act, the same caution was manifested by the avoidance 
 of mention of the specific clause which was to be made in- 
 operative. 27 The act was repealed in toto. It seems indispu- 
 table to the writer that all concerned in the enactment of this 
 law knew that the bonds were to be used to aid the Confed- 
 eracy, and further it is clear that the caution was observed in 
 order to prevent any embarrassment to the negotiator or pros- 
 pective holders of the bonds. Due to misunderstandings with 
 the Confederate War Department and to certain limitations of 
 the Confederate law, the bonds were not used for the purpose 
 Giddings proposed; but the Military Board thus created con- 
 tinued in existence throughout the war. 
 
 Under authority of these acts, the Military Board, on 
 January 12, 1865, agreed to sell to George W. White and 
 John Chiles 135 of these bonds, then in the State Treasury, 
 
 20 Gammel, Laws of Texas, V, 491. 
 
 ■"Lubbock to Benjamin, Off. Rec., Ser. IV, Vol. I, p. 839. 
 
 27 Gammel, Laws of Texas, V, 489. Tbe original suggestion of Sec- 
 retary Benjamin was not followed. Instead of buying the arms out- 
 right in the name of Texas, the board turned over $100,000 of the 
 United States bonds to Giddings, and took his receipt. The board ex- 
 pected Benjamin to acknowledge the receipt and to deposit Confederate 
 bonds in exchange. Benjamin, however, ordered Giddings to return the 
 United States bonds immediately, saying that the law only allowed him 
 to purchase arms. This statement was accompanied with a mild rebuke. 
 The letter of Benjamin to the Military Board also displayed some 
 acerbity, and led to strained official relations between the two. The orig- 
 inal purpose of the act creating the Board was, therefore, not accom- 
 plished, on account of the very technical interpretation of the law by 
 Benjamin.
 
 History of the Case 19 
 
 and seventy-six others which were then in the hands of certain 
 bankers in England. 28 In payment for these bonds, that is, 
 for ' '-■!. ^first 135, White and Chiles were to deliver to the 
 board 25,000 cotton cards, equal in value and quality to No. 10 
 \Yhi + rhore cards, and, secondly, medicines of the best grade. 29 
 In case these articles should not be delivered, White and Chiles 
 
 The Military Board, as first constituted, consisted of the governor, 
 the treasurer, and the comptroller of public accounts. Later, in 1863, 
 the law was changed, making the board to consist of the governor, 
 ex officio, and two others appointed by him. Prior to this act, the 
 board was known as the Old Board, and after it, the New Board. 
 During all the periods of its existence, the changes in personnel were 
 as follows : From January, 1862, to November, 1863 : F. R. Lubbock, C. 
 R. Johns, and C. H. Randolph; from November, 1863, to April, 1864: 
 P. Murrah, Johns, and Randolph ; and from then on, — Murrah, N. B. 
 Peai ~e, and J. S. Holman. It was the board as last constituted that 
 made the contract with White and Chiles. During the existence of both 
 boards, $634,000 in the bonds and $132,700 in coupons were used. For 
 an account of the Military Board and of the various contracts which 
 it made, see the report of Pease and Palm. 
 
 The bonds, mentioned above as being in England, were in the 
 hands of Messrs. Droege & Company, of Manchester. In 1862, the 
 Military Board had authorized the firm of John M. Swisher & Com- 
 pany of Austin, Texas, to negotiate 300 of the indemnity bonds. In 
 fulfillment of this arrangement, Mr. Swisher had transported the bonds 
 to England, and had employed Droege & Company as his agents. He 
 deposited the bonds with this house in his own name, and the trans- 
 action was throughout apparently of a private character. Through 
 Droege & Company a sale was effected during the first year ; 149 of the 
 bonds were sold to George A. Peabody & Company for £25,981, pay- 
 able in three installments. The remaining 151 bonds were still in the 
 possession of Droege & Company when the contract was made between 
 White and Chiles and the Military Board, and it was upon these bonds 
 that the board drew when it transferred the seventy-six bonds to 
 White and Chiles. 
 
 29 A copy of the contract between White and Chiles and the Military 
 Board may be found in the File Copy of Briefs for 1876. This docu- 
 ment is in the library of the Supreme Court at Washington. Accord- 
 ing to Governor Hamilton, the original draft of this contract was 
 found by Mr. Swante Palm in one of the rooms of the State Capitol 
 among the waste papers which had been scattered there when the Con- 
 federates abandoned the building. Led by curiosity, Mr. Palm looked 
 about and discovered many of the papers later employed in the case 
 of Texas v. White by the legal representatives of the State, including 
 the receipt and a partial list of the numbers of the bonds transferred 
 to White and Chiles. Record of the case, 79.
 
 20 Texas v. White 
 
 were bound to deposit with the State, bonds of Texas equal to 
 the amount turned over to them in the United States bonds. 30 
 As security, these men offered the names of seven prominent 
 citizens of Texas. 31 This guarantee being considered suffi- 
 cient, the board delivered the bonds to White and Chiles, but 
 none of them was indorsed by any governor of Texas. 
 
 Was the purpose and possible effect of the contract of 
 the Military Board to aid the Confederacy? On this question 
 the merits of the case were determined, and on it there may 
 be and was an honest difference of opinion. Cotton cards were 
 contraband and they might have been used for military pur- 
 poses, but such usage would have been indirect. Respecting 
 the medical supplies, it seems that the more enlightened view 
 should have been that hospitals, hospital supplies, and medi- 
 cines are neutralized in time of war. Such was the doctrine 
 set forth in Lieber's famous General Order, Number 100, and 
 in the Geneva Convention of 1864. 
 
 Whether through the fault of White and Chiles or not, 
 the cards and medicines were never delivered to the board. 
 From the testimony, it appears that they sent these articles 
 to Matamoras, Mexico, which was then a portal to the Con- 
 federacy, and that here the agent of White and Chiles took 
 possession and forwarded the cards and medicines to Austin. 
 En route, however, they were destroyed by some one of the 
 bands of marauders or robbers which then infested the borders 
 of the State. According to Chiles, the work of destruction or 
 seizure was done by the disbanded soldiers of General Kirby 
 Smith. Whether such was the case or not, it is impossible to 
 say with any degree of certainty. 
 
 In the record of the case, it was stated that, as early as 
 1862, George W. Paschal, a loyalist of Texas, wrote to the 
 secretary of the treasury of the United States, Mr. Chase, 
 warning him that an effort was going to be made to utilize the 
 
 30 The bonds here referred to were the 7 or 8 per cent State bonds 
 of Texas. In reckoning the amount to be deposited, it was agreed that 
 the United States bonds were to be rated at eighty cents on the dollar, 
 the State bonds at par. See Pease and Palm ; Paschal's Digest, 908. 
 
 31 Paschal's Digest, 908.
 
 History of the Case 21 
 
 indemnity bonds in the interests of the Confederacy, and 
 informing him that such bonds could be identified by the 
 absence of the governor's indorsement. 32 Apparently this 
 statement was made on the assumption that all bonds circu- 
 lated before the war had been so indorsed. As has been 
 pointed out, however, this was by no means the case. We 
 are informed that the treasury department acted on this in- 
 formation, and that, in general, payment of bonds and the in- 
 terest was refused when such indorsement was lacking. This 
 policy, however, was not always followed, and some of the 
 bonds of this character were redeemed. 33 
 
 Restoration and Reconstruction of Texas 
 
 After the surrender of the Confederate armies, the Fed- 
 eral troops promptly assumed control of a large part of 
 Texas. Immediately before this event, many of the State offi- 
 cials fled to Mexico or to Europe. Coincident with this flight, 
 organized civil government practically disappeared. As the 
 Confederate authority collapsed, the President, in order to 
 afford Texas the republican form of government, guaranteed 
 to each of the States by the Constitution and by virtue of his 
 military powers, filled the governmental vacuum, by the crea- 
 tion of a provisional government. The military power was 
 incontestably his, and he assumed that the President should 
 enforce the guaranty clause, — an assumption as shall later ap- 
 pear which was questionable, if not unfounded in law. He is- 
 sued his proclamation, appointing A. J. Hamilton provisional 
 governor, on June 17, 1865. Under this government, the people 
 of Texas proceeded to make a new constitution in which were 
 incorporated what were considered to be the legitimate results 
 of the war. In accordance with this instrument, an election was 
 held for both state and national officers. In this election, the 
 suffrage qualifications were practically the same as had obtain- 
 ed before the war. J. W. Throckmorton was chosen governor, 
 and was promptly installed. The men elected to Congress were 
 
 : "7 Wallace, 706; Paschal's brief, File of Briefs, Vol. I, 1876. 
 Reporl of the | U. SO C.nnptmlkT for 1865.
 
 22 Texas v. White 
 
 given their credentials, and, after the opening of Congress in 
 1866, presented themselves at Washington for admission. The 
 President urged that their demand be granted, and that Con- 
 gress should thus place the stamp of its approval upon his ef- 
 forts to restore the Southern States to their constitutional re- 
 lationship with the government of the United States. Congress, 
 however, as previously in the cases of the other states, except 
 Tennessee, which had attempted secession, saw fit to act other- 
 wise, and Texas was not acknowledged to have been satis- 
 factorily or properly restored. On the contrary, an amend- 
 ment to the Constitution was submitted to the States for 
 ratification, and acceptance of it was made a preliminary con- 
 dition to the readmission of those States which had lately 
 been at War against the Union. Texas, in company with the 
 other Southern States, except Tennessee, rejected the four- 
 teenth amendment, and thus effectively blocked the congress- 
 ional plan of restoration. The first phase of the relations of 
 Congress to the Southern States was thus ended, and the rad- 
 ical leaders in Congress then introduced measures for drastic 
 reconstruction. The source of power for these acts was the 
 clause of the Constitution whereby the United States guaran- 
 teed to each State a republican form of government. Was this 
 exclusively a legislative power? The opinion in Texas v. White 
 was a partial answer. By the act of March 2, 1867, it was 
 decreed that no legal government existed in the late insur- 
 rectionary States, and that there was no adequate protection 
 of life and property. The States whose governments were so 
 impugned were then divided into five military districts, and it 
 was made the duty of the President to assign to each district 
 a general of the army. To such officers, ample powers were 
 given to suppress disorder, and to perform the other duties 
 which were then and later imposed upon them. Although the 
 avowed purpose was the establishment of a more substantial 
 and reliable police power in the Southern States, the real 
 purpose was political. A convention was to be held in each 
 State "elected by the male citizens of said State, twenty- 
 one years old and upwards of whatever race, color or previous
 
 History oe the Case 23 
 
 condition." 34 Later, on March 23, certain rules were pre- 
 scribed for the registration of the enlarged electorate con- 
 templated in the earlier act. Governments in existence in 
 these States were declared to be subject to the paramount 
 authority of the United States at any time, to abolish, modify, 
 or supersede them. And they were modified or superseded 
 whenever the occasion, in the opinion of the commander, 
 seemed to warrant it. 
 
 Of these military districts, Texas and Louisiana formed 
 the fifth. The officer first designated as commander of 
 this district, General Sheridan, soon took over a very large 
 share of the administration of the government, civil and ju- 
 dicial, as well as military. Governor Throckmorton proved too 
 moderate and conservative, and Sheridan removed him, as- 
 signing as a reason for such action that the governor was 
 "an impediment to reconstruction." 35 In his stead, a former 
 governor, E. M. Pease, was appointed. Thus the State govern- 
 ment was reduced to the position of subserviency and impo- 
 tence prepared for it by the action of Congress. Thence- 
 forward it became difficult to associate with it the attributes 
 hitherto considered necessary to the existence of a State. 
 
 The foregoing paragraphs epitomize the history necessary 
 to a right understanding of the case, and I now turn to an 
 examination of the action of the various governments therein 
 mentioned in reference to the Texas bonds. The finances of 
 Texas, like those of the other States of the distracted South, 
 were in disorder and confusion at the close of the war; and 
 among the earliest efforts at rehabilitation, were those directed 
 to remedy this condition. Governor Hamilton appointed 
 Messrs. E. M. Pease and Swante Palm to investigate the 
 treasury, and, in general, the financial condition of the State. 
 They were also to inquire about the disposition of the bonds 
 
 M See treatment of these laws in Dunning, Essays, \76 et seq. The 
 text of the laws is to be found in Fleming, Documentary History of 
 Reconstruction, I, 401 et seq. 
 
 83 For detailed study of this period in Texas, in all its aspects, see 
 Ramsdell, Reconstruction in Texas. For a discussion of this particular 
 topic, see pp. 145 et seq.
 
 24 Texas v. White 
 
 and to recommend methods of recovery, if such were feasible. 36 
 To supplement and legalize these steps, the constitutional 
 convention of 1866 passed an ordinance empowering the gov- 
 ernor to take steps to recover the bonds or to compromise with 
 the holders. 37 This action was inspired by George W. Paschal, 
 who was later appointed financial agent and legal represen- 
 tative of the State. In most of the efforts, legal and otherwise, 
 to recover the bonds, the influence of Paschal was strong, 
 if not predominant. 38 
 
 36 Paschal, Digest, 905. This report contains a history of the con- 
 tracts, sales and receipts of the Military Board. It may be found in 
 Executive Record Book, No. 281. 
 
 37 Gammel, Laws of Texas, V, 889. Ordinances of the Convention 
 No. 12. Adopted, April 2, 1866. 
 
 88 Mr. George Washington Paschal was a man of considerable prom- 
 inence and influence in the political affairs of Texas. Prior to the 
 war, he had been the friend and supporter of Houston, and had con- 
 tributed powerfully to his election as governor in 1859. During the war 
 he remained constantly loyal to the Union. His views on secession 
 were made public in the Southern Intelligencer, which he established 
 and partly owned. As a lawyer he also attained to some distinction. 
 He was the author of a number of works, among which are: A Digest 
 of Texas Law; Annotated Constitution of the United States; Digest 
 of the Decisions of the Supreme Court of Texas; and Life of Sam 
 Houston. During the Reconstruction period, he became an ardent 
 supporter of the Congressional plan. He joined the radicals, and en- 
 dorsed the most extreme position occupied by that party. He took a 
 prominent part in the convention of Southern Loyalists at Philadelphia, 
 in 1866, and used his influence against the Johnson administration in 
 the election which followed. It was his boast that he "contributed 
 as much as any other man to the cause of popular liberty and in 
 the establishment of the constitutional amendments, which give citizen- 
 ship and suffrage to all." It was intimated that Paschal had motives 
 other than those inspired by unselfish patriotism and loyalty to the 
 cause of education which urged him to continue his efforts to secure 
 these bonds. However this may have been, it is known that he was 
 removed from his position as representative of the State by Governor 
 Davis at least partially because of the largeness of the fee which he 
 retained from the moneys collected for the State. Paschal defended 
 himself from the charge of exacting an exorbitant fee by claiming 
 that part of the money retained was compensation for printing certain 
 reports of the Supreme Court of Texas. For a fuller discussion of this 
 matter, see below, section "In re Paschal." 
 
 Like so many of the Southern Unionists and Radicals, Paschal later 
 removed to the North. As Professor of Law at Georgetown Uni- 
 versity, he was highly respected for learning and ability.
 
 History of the Case 25 
 
 The work of regaining actual possession of the bonds was 
 started by General Granger immediately after the occupation 
 of the State by the Federal troops. He issued a proclamation 
 ordering that all moneys belonging to the state should be turned 
 over to the military authorities. As a result of this order, 106 
 of the indemnity bonds were recovered and were given to 
 Hamilton when he was installed as governor. After Hamilton 
 came into office, an effort was made in the Texas courts to re- 
 cover bonds from White and Chiles, but neither of these men 
 was then in the State, — White having fled to Tennessee, and 
 Chiles having removed his residence to New York. The 
 result was that this effort proved fruitless. As governor, 
 Hamilton resisted the efforts of White to secure a pardon 
 for participation in the war, and recommended the confiscation 
 of White's property. Unofficially, the governor seems to have 
 played a very different part in this matter. According to the 
 answers of both White and Chiles in the case of Texas v. 
 White, Hamilton, while acting as governor of Texas, became 
 their attorney or agent to assist them in securing the payment 
 of the bonds in their possession. According to Chiles, a fee 
 of $10,750 was paid to Hamilton for his services. In White's 
 answer there is the statement that "an understanding was ar- 
 rived at with said Hamilton, and it was agreed that said 
 Hamilton should receive $20,000, in said indemnity bonds, 
 for his services in securing payment of said bonds, at the treas- 
 ury of the United States, to an amount of $135,000." In ful- 
 fillment of this agreement, $10,000 was actually paid him, 
 on June 22, 1865, and the remainder was to become due when 
 the Treasury Department should redeem the bonds. This sum 
 was deposited to his credit in New York City with that condi- 
 tion. A friend of the governor, J. R. Barrett, was also en- 
 gaged for the same purpose, and a large fee was paid him. 
 If these allegations were true, the conduct of 1 Iamilton was, 
 to say the least, somewhat equivocal and open to question. As 
 governor, he criticized White and Chiles harshly and de- 
 nounced them for having taken money which had been con- 
 secrated to the school fund. In another capacity, whatever
 
 26 Texas v. White 
 
 it was, he wrote a letter to Barrett saying that the govern- 
 ment of the United States would certainly redeem the bonds 
 for the benefit of the holders, and stating that an offer on the 
 part of White and Chiles to sell some of these bonds was a 
 good proposition. Despite these seemingly contradictory posi- 
 tions, measures were taken by the State authorities to prevent 
 the payment of the bonds to the holders by the United States 
 Treasury. 
 
 Both White and Chiles, in their later defence, claimed that 
 they offered to comply with that provision of the contract 
 which required that in case they failed to deliver the cards 
 and medicines they should pay into the State treasury a certain 
 amount of Texas bonds. This offer was refused by the State 
 treasurer and by the governor, and it was declared by both of 
 these officials that the contract was not binding upon the 
 State. 
 
 According to the law, the governor had the discretionary 
 power of compromising with the holders of the bonds, if such 
 served the interest of the State. After the election of Throck- 
 morton, negotiations to this end were opened between him and 
 White. It seems that at this juncture, White had in his posses- 
 sion most, if not all of the bonds which had not been disposed 
 of previously. According to the explanation which Chiles 
 made of this fact, it appeared that White had approached 
 him and had requested that he be allowed temporary possession 
 of the bonds in order that he might meet certain obligations 
 and thus save his property in Texas, which was then being 
 threatened. He wanted the bonds for security, and Chiles 
 yielded. However this may have been, White agreed to 
 the compromise propositions of Throckmorton. By this agree- 
 ment, the State received $12,000 in currency and eight bonds, 
 which were then on deposit at the United States treasury. 
 White also released his claim to the seventy-six bonds in 
 England, and, in turn, the State released White and Chiles 
 from all obligations. This compromise seems to have recog- 
 nized some legal validity in the contract made by the Military 
 Board. In effect, it allowed White to retain certain bonds in
 
 History of the Case 27 
 
 his possession, the number of which is uncertain, and released 
 him from the obligations of his contract, which became oper- 
 ative on the failure to deliver the cards and medicines. He 
 surrendered his shadowy claim to the bonds then in the hands 
 of Droege & Company in England, but Chiles later attempted 
 to secure them, and was adjudged in contempt of court for so 
 doing. The bonds which were involved in the case of Texas v. 
 White et als. — fifty-one out of the original one hundred 
 and thirty-five — were not affected by this compromise and 
 depended on the issue of the suit, since they had been trans- 
 ferred to other parties. Yet the injunction petition seems to 
 have been sufficiently inclusive that when once granted all of 
 the bonds would have been affected. The compromise, how- 
 ever, had no relation to the case in question except indirectly 
 as mentioned. 
 
 Chiles complained bitterly against this compromise, and 
 contended that the result of the whole proceeding was to 
 deprive him of his rights, and that it was effected without 
 consultation with him. He protested to the governor of Texas, 
 and later introduced a cross-bill against White for recovery 
 and damages, but in neither case was he successful in securing 
 his object. 39 
 
 When the State legislature was convened, after the election 
 of Throckmorton, an act was passed which embodied the same 
 provisions as were contained in the ordinance of the convention 
 before mentioned. 40 Empowered by this law, Throckmorton 
 appointed B. H. Epperson financial agent and legal represen- 
 tative of Texas. In the legal measures which Epperson took 
 to regain the bonds the attorney-general, William M. Walton, 
 was associated with him. 41 When Pease was installed as gov- 
 
 39 For the terms of this compromise, see the record of the case, File 
 of Records, 1876, p. 64 et scq. See also the report of the (Texas) 
 Comptroller of Public Accounts for 1866-1867, 1869-1870. The records 
 of the case are found, of course, in the library of the Supreme Court 
 at Washington. 
 
 40 Gammel, Laws of Texas, V, 987. 
 
 41 Attorney-General's (Texas) reporl for 1866-67; report of Comp- 
 troller of Public Accounts of Texas for 1869-70. In the last document 
 cited, there is an account of the activity of Epperson and Walton. See 
 especially letter of Epperson to Comptroller Bledsoe, 16-17.
 
 28 Texas v. White 
 
 ernor, the Throckmorton agents were dismissed, and Paschal 
 again became the official representative of the State, serving as 
 one of the lawyers when the case of Texas v. White was being 
 tried before the Supreme Court. 
 
 Transfers of Bonds from White and Chiles 
 The bill in the case showed that, after the war, White 
 had sold a number of bonds to John A. Hardenberg, and 
 that Chiles had borrowed money from Birch, Murray & Com- 
 pany, giving bonds as security. 42 Apparently Hardenberg 
 had bought his bonds in an open market, and he insisted that 
 the purchase was bona fide. i3 Whether such was the case, 
 provoked a lively debate among lawyers. It was asserted by 
 the Texas lawyers that Hardenberg and the others who had 
 purchased bonds had had sufficient notification of the intention 
 of Texas to dispute the title of White and Chiles to the bonds. 
 
 42 For detailed account of the negotiations of White and Chiles in 
 exploiting the bonds, see report of the case, 7 Wallace, 714-716; 25 
 Texas (Supplement), 465-621. 
 
 43 7 Wallace, 710-714. It is beyond the scope of this paper to de- 
 scribe in detail the manner by which Hardenberg acquired possession 
 of thirty-four of the bonds originally given to White and Chiles. In 
 brief, however, it appears from the testimony that they passed through 
 numerous hands before he bought them. The first trade was consum- 
 mated through a commission merchant, named Hennessey, and he, in 
 turn, had received them from a Mr. Douglas, of Tennessee. Douglas 
 was the representative of White in this transaction. Although Harden- 
 berg did not know the exact source whence these bonds came, he was 
 aware that the original owner had not been loyal to the United States 
 during the late intersectional conflict. He made no investigation to as- 
 certain the identity of this owner. For these bonds he paid 120 
 cents on the dollar at a time when gold was selling at 146 and declin- 
 ing. This he considered to be a good speculation. By this purchase he 
 got possession of thirty bonds. He also got four others, — one from 
 McKim & Company, at 115 cents on the dollar with gold at 147, and 
 three from Kimball & Company at 120 cents on the dollar with gold 
 at 146. In his testimony, Hardenberg professed not to know that the 
 bonds came from White or that Texas had ever passed a law requiring 
 the indorsement of the governor in order to make the indemnity bonds 
 negotiable. There seems to have been a great deal of speculation in 
 United States bonds at that time. The bonds were redeemed in gold, 
 and the holder promptly cleared a handsome premium from the high 
 prices of gold then current.
 
 History of the Case 29 
 
 Evidence was adduced to substantiate this contention. Paschal, 
 in 1865, had written several notices to the New York papers, — 
 or at least was instrumental in causing them to appear in the 
 news columns, — in which he cautioned the public not to buy- 
 any of the bonds held by these parties, and declared that Texas 
 was going to contest the claim of White and Chiles. These 
 notices were published in the Herald and in the Tribune** 
 If these newspaper statements should be accepted by the court 
 as legal notification, the purchase of bonds by Hardenberg 
 was merely a speculation in which his good faith was question- 
 able. 
 
 Birch, Murray & Company had taken a number of the 
 bonds as security for a loan to Chiles. At first the firm lent 
 him $5,000, for which he deposited twelve bonds. These bonds 
 were taken to the United States treasury where four were 
 redeemed, the principal and coupons amounting to $4,900. 45 
 The eight remaining unredeemed were left at the treasury, 
 credited to the firm. Chiles still desiring to borrow money, 
 again approached Birch, Murray & Company. This time he 
 
 14 Under the caption "Caution to the Public" Paschal wrote the his- 
 tory of the Texas indemnity bonds. In conclusion he said : "Now, 
 therefore, I think proper to give the public notice that said bonds were 
 delivered to White and Chiles by irresponsible parties, without any 
 legitimate authority and in violation of a statute of the State, which re- 
 quires said bonds to be endorsed by the governor of the State before 
 they shall be available in the hands of any holder ; that they were 
 delivered under a pretended contract, which bears upon its face indis- 
 putable evidence of fraud, and that the said White and Chiles, not 
 either of them, have ever paid or caused to be paid to the said State 
 of Texas one farthing in money or securities, or property of any 
 character for said bonds, and have both fled from the State of Texas 
 to avoid prosecution and punishment under the laws of the State ; and 
 that these facts are known to the Secretary of the Treasury of the 
 United States, and a protest filed with him against the payment of 
 said bonds and coupons, unless presented for payment by proper au- 
 thority of the State of Texas." The New York Tribune, October 10, 
 1865. This notice appeared above the signature of Governor Hamilton, 
 and it is possible that he may have written it. 
 
 "The treasury department was influenced by the plea that the loan 
 had been made in good faith, and the number of bonds redeemed 
 showed that an attempt was made to reimburse the firm to the extent 
 of its outlay. 7 Wallace, 715-716.
 
 30 Texas v. White 
 
 brought with him a letter from Governor Hamilton and a 
 report from the comptroller of the treasury, both favorable 
 to the payment of the bonds by the government. 40 These 
 documents overcame whatever hesitancy the firm had, and, 
 on the security of the eight bonds already deposited with the 
 treasury department, Chiles secured $4,125 as an additional 
 loan. 
 
 The attitude of the United States treasury department 
 toward these bonds was not consistent. At one time, payment 
 was refused, and at another it was promised. 47 Finally, 
 after the holders became insistent, Secretary McCulloch or- 
 dered the comptroller, R. W. Tayler, to make a report on the 
 subject and submit recommendations as to the proper course 
 to follow. Such a report was made, and it revealed careful 
 investigation into the entire matter. Tayler recommended 
 that the bonds be paid. In accordance with this suggestion, 
 the secretary ordered that payment be made on all bonds of 
 this character that were presented. To this the Texas agents 
 entered a strong protest. 48 They also carried the matter to 
 the President, insisting that, by executive order, he forbid pay- 
 ment of the bonds, that White be arrested, and that his pardon 
 be withheld. President Johnson declined to be drawn into 
 a controversy over White, or "to administer the affairs of 
 Texas." 49 Finding appeal to the President of no avail, the 
 
 46 Chiles had also approached J. R. Barrett, a friend of Governor 
 Hamilton, and had made him an offer. Barrett consulted Hamilton 
 and was advised to accept the proposition. This advice the governor 
 finally embodied in a letter to Barrett. "Dear Sir : In reply to your 
 question about Texas indemnity bonds issued by the United States, I 
 can assure you that they are perfectly good, and that the gov't will 
 certainly pay them to the holders. Yours truly, A. J. Hamilton." 
 
 47 See Comptroller Tayler's special report on this subject, 1866. Op. 
 cit. 
 
 48 These agents were Epperson and Walton. 
 
 49 White was one of the southerners who, possessing more than 
 $20,000 in wealth, had to make personal application for pardon. Later 
 Paschal complained that White "seemed to be one of the influential 
 men at the 'White House,' having access at all times." According to 
 a statement of the late Judge A. W. Terrell, of Texas, to Professor 
 Charles W. Ramsdell, of the University of Texas, White was a 
 Tennessee friend of Johnson. Judge Terrell said that White not only
 
 History of the Cask 31 
 
 agents appeared again before the comptroller, and submitted 
 a long argument against payment of the bonds. They were 
 informed that, unless the State took legal action within one 
 week, the bonds would be redeemed in behalf of the holders. 
 Legal proceedings were instituted at once, and the result was 
 the case of Texas v. McCulloch. which was dismissed on 
 February 19, 1867. 50 Then many of the outstanding bonds 
 were paid. 
 
 The records of the treasury department show that the 
 Hardenberg bonds were redeemed at that time. Although 
 this was technically the case, the entry in the books did not 
 describe the conditions of payment, and the real history of 
 the transaction did not become known until later. It was 
 accomplished only after McCulloch and Hardenberg had 
 reached a private agreement. The secretary hesitated to pay 
 the bonds, because there was a possibility that Texas, after 
 the State's case had been tried upon its legal merits before 
 the Supreme Court, might begin a suit against him for dama- 
 ges and restitution. Congressman S. S. Cox, then repre- 
 senting Hardenberg, proposed an arrangement whereby the 
 secretary would be protected should this eventuality occur. 
 According to this plan, Hardenberg was to receive payment 
 of the bonds in gold. He was then to deposit, in some bank, 
 in United States bonds known as "seven-thirties" a sum 
 equal to that paid to him in redemption of his Texas bonds, 51 
 of which the secretary of the treasury was made a trustee, 
 and which was to revert to him in case of a suit being de- 
 cided against the validity of Hardenberg's title to the Texas 
 bonds, and in case the United States treasury was held ac- 
 countable for the amount paid in redemption. 
 
 secured his pardon easily, but actually resided for a time in the White 
 House; that when he (Terrell) returned from Mexico in 1866 and 
 went to Washington to get his own pardon, he found White staying 
 at the White House. 
 
 "7 Wallace, 714. 
 
 ' Later these "seven-thirties" were exchanged and "five-twenties" of 
 an equal amount substituted. See Texas v. White, 7 Wallace, 713-714; 
 Texas v. J/ardcnben/, 10 Wallace, 73-77.
 
 CHAPTER II 
 
 THE ARGUMENT OF THE LAWYERS 
 
 The case was argued by G. W. Paschal and R. T. Merrick 
 for Texas; 1 and contra, by Philip Phillips for White, Albert 
 Pike and associates for Chiles, J. W. Carlisle for Hardenberg, 
 and James W. Moore for Birch, Murray & Company. All 
 of these gentlemen were prominent members of the Supreme 
 Court bar, and, as such were lawyers of marked ability. 
 The unique character among them was the soldier, poet, 
 and lawyer, Albert Pike, who a short while before had served 
 with distinction as a general in the armies of the Confederacy. 
 With him were joined his partner R. W. Johnson, and James 
 Hughes. 
 
 The bill as made out by Paschal and Merrick set forth 
 the case of Texas. It may be divided into six parts as 
 follows : First, that the bonds were seized by an unlawful 
 combination of persons in armed hostility to the government 
 of the United States. Second, that the bonds were sold to 
 White and Chiles for the purpose of aiding the Confederate 
 authorities in overthrowing that government. Third, that, 
 granting the legality of these proceedings, White and Chiles 
 had not fulfilled the requirements of their contract with the 
 Military Board. Fourth, that the bonds were not properly 
 indorsed, and consequently might be identified. Fifth, that 
 the bonds were matured, and that payment was overdue. 
 Sixth, that the later transfers to Hardenberg and others were 
 not made in good faith. 
 
 The answers of White and Chiles, which were very much 
 alike, may also be summarized under six heads. First, that 
 Paschal and Merrick had shown no written warrant of attor- 
 ney as evidence of their authority to represent Texas in pro- 
 ceedings of this nature. Second, that Texas, by seceding 
 from the Union and later waging war against the United 
 
 1 Paschal and Merrick were assisted by R. J. Brent and George 
 Taylor.
 
 The Argument of the Lawyers 33 
 
 States, had lost the status of a State in the American Union, 
 and, therefore, had no right to sue in the Supreme Court. 
 Third, that the Texas government, whether de facto or de 
 jure, had entered into a contract which it could not now 
 repudiate. Fourth, that the indorsement of the bonds by 
 the governor was not necessary to render them negotiable. 
 Fifth, that circumstances over which White and Chiles had 
 no control had made it impossible for them to fulfill their 
 contractual obligations. Sixth, that prior to the transfers 
 of the bonds to other parties they had no definite information 
 that Texas intended to contest their title. 
 
 Such was the case when it came up for final argument. 
 It will be seen that there were four questions involved, and 
 that each in turn came up for adjudication by the court. 
 First, a preliminary one of minor significance, — whether Pas- 
 chal and Merrick could show sufficient authority to prosecute 
 in the name of Texas. Although there was much wrangling 
 about this question of authority, it was not serious ; the en- 
 tire discussion about it was mere legal by-play. The second 
 however, was far more important. This was a question of 
 jurisdiction, — whether or not Texas was a State in the Union 
 when the suit was filed, and thus competent to be heard in 
 an original case before the Supreme Court. Third, whether 
 an injunction was to be granted against the persons named. 
 Fourth, as to the effect produced by the payment of certain 
 of the indemnity bonds by the United States treasury. 
 
 Of these questions, the second was of the greatest import. 
 In deciding it, the court was to place on record a precedent 
 of fundamental and permanent value. Was Texas a State 
 in the Union? If not, the case must be dismissed because of 
 the constitutional limitation as to the original jurisdiction of 
 the Supreme Court. The most important questions occasioned 
 by the war were involved, and it was necessary for the court 
 to consider them in order to determine and formulate the 
 constitutional principles emerging from those extraordinary 
 conditions. Concerning this question of jurisdiction was 
 waged one of the great battles of our legal history. The
 
 34 Texas v. White 
 
 briefs of the various lawyers covered several hundred pages, 
 so carefully and exhaustively were the details treated. 2 
 
 Paschal based his theory and constitutional interpretation 
 upon the postulate that : The Union is indestructible and 
 indissoluble; that Texas had surrendered all rights of self- 
 determination when she entered the Union, and all acts in 
 contravention of that surrender were null and void. He 
 contended that 
 
 The State as a State did not and could not rebel against the 
 United States. But the magistrates of the State, including 
 the Legislature, refused to take the oath required by the 
 Federal Constitution [and] took an oath to support the pre- 
 tended government at war with the United States. 
 The secession ordinance was void ; the attempted dissolution of 
 the Union was void ; the relation to the new Confederacy was 
 void ; all legislation in opposition to the Constitution, treaties 
 and laws of the United States, was void; and, therefore, the 
 body politic no more ceased to be a State in the Union than 
 was the vast domain geographically elided from the bound- 
 aries of the United States. 
 
 Through all the manifold changes undergone, the status of 
 Texas as a State in the Union remained the same ; and all 
 efforts at alteration were of no effect, because they had no 
 standing in law. This was very largely an echo of the 
 popular view in the North, and it doubtless possessed in the 
 eyes of the court the great weight derivable from the approval 
 of public opinion. 
 
 Phillips, in opposition, invited the attention of the court 
 to the facts in the history of Texas since the adoption of the 
 ordinance of secession, and insisted that these facts did not 
 justify the claim that she remained a State throughout this 
 period. The definition of a "State," under the Constitution, 
 
 2 The arguments of Paschal, Merrick, Pike, Phillips, Hughes, and 
 the other lawyers may be found in an abridged form in 25 Texas 
 (Supplement) Reports. In a complete form they can be found in the 
 file of briefs in the Supreme Court library at Washington and in the 
 library of the New York Bar Association. Since the litigation con- 
 nected with this case covers a number of years, the briefs were collected 
 in the volume for 1876. File Copy of Briefs, 1876, 1 Org'l— 22 Org'l.
 
 The Argument of the Lawyers 35 
 
 would not permit the admission of such a claim. The defi- 
 nition to which he appealed was firmly imbedded in the opin- 
 ions of the Supreme Court and had been accepted as a maxim 
 of constitutional law, and these opinions were uniformly and 
 consistently against the present pretensions of Texas. In the 
 famous case of Hepburn and Dundass v. Ellxcy, Chief Justice 
 Marshall had held that the term "State," in the American 
 Union, connoted something of a nature in many respects sepa- 
 rate and distinct from that usually given to it in treatises on 
 general or international law. 3 The Constitution of the United 
 States contemplates a political body which is entitled to repre- 
 sentation in the Senate and House of Representatives, and to 
 the appointment of presidential electors. The "political body" 
 in this Union which is possessed of these rights is a State. 
 This case, according to Phillips, presented a clear and well 
 defined test which would demonstrate whether or not Texas 
 at that time was a "State" in the constitutional sense of the 
 word. The principle to which this advocate referred had been 
 upheld and approved in other cases, and so far as time could 
 give it, the opinion had the unquestioned sanctity of legal 
 precedent. 4 Continuing this argument, he inquired : 
 
 3 2 Cranch, 452. 
 
 4 The decision was specifically upheld in New Orleans v. Winter (1 
 Wheaton, 91) and in Scott v. Jones (5 Howard, 343). It is pertinent 
 to introduce here a statement of some of the other definitions of a 
 "state" under the Constitution. In Chisholm v. State of Georgia (2 
 Dallas, 419), a state was defined as "a complete body of free persons, 
 united together for their common benefit, to enjoy peaceably what 
 is their own, and to do justice to others." This definition was ex- 
 panded in the great case of Pcnhallow v. Doanc (3 Dallas, 93), so 
 that a "state," in its most enlarged sense, means the people composing 
 a particular nation or community. In that sense is the whole people 
 united in one body politic, and thus the "state" and "the people of the 
 state" are equivalent expressions. This last case had an interesting 
 bearing upon certain points of the controversy we have been consider- 
 ing. What were "the people of the state?" Does a true republican 
 form of state government require the participation of the whole people? 
 And finally if the people constitute the state, is the action of the people 
 the action of the state? Such a deduction was disquieting to those 
 who denied the de facto participation of the state in the efforts to se- 
 cede. It was, therefore, a dangerous precedent for all parties.
 
 36 Texas v. Whits 
 
 Now what is the condition of Texas? She is denied the right 
 of representation in Congress, and all power to appoint elec- 
 tors. Her State government is declared to be illegal. All 
 authority to govern her is lodged in a military commander; 
 civil tribunals are made subservient to his dictation; a pro- 
 visional government is appointed by the President according to 
 military authority. This condition is wholly inconsistent with 
 the idea that there remains with the people of Texas any politi- 
 cal power whatever, or that they are entitled to any of the 
 guarantees of the Constitution of the United States. . . . 
 If the laws which deprive her of these rights and impose 
 these qualifications are valid — that is, if she is not entitled 
 to representation in Congress, and a voice in the choice of 
 electors, then I maintain that she is not a member of the 
 Union, that she is not a State within the sense of this juris- 
 dictional provision. 5 
 
 This argument placed an alternative before the court which 
 demanded either the adoption of Thaddeus Stevens' con- 
 quered-province theory or the repudiation of the action of 
 Congress. In the quaint and involved language of General 
 Pike, we may find the theory of Stevens advocated for adop- 
 tion by the court : 
 
 It seems to us that if the right to secede did not exist, con- 
 tradictions if not absurdities, can only be avoided, by holding 
 that the people of the State, constituting and being the State, 
 did secede in fact ; that the State government being unchanged, 
 its acts were the acts of the people of Texas, done through 
 their chosen agents; that, when the Confederacy was ac- 
 knowledged to be a belligerent Power, there was no longer a 
 rebellion, but a war, a public, not a civil, war ; that after con- 
 quest, the status of rebels and traitors could not, for any 
 purpose, be reimposed upon the people of Texas; since, if it 
 could, General Lee, having been paroled, could not be tried 
 for treason, while Mr. Stephens, who was but a civil officer, 
 could ; that the United States may exercise the rights of con- 
 quest over what, being conquered, ceased at once to be a State, 
 and became a province, without any right of readmission into 
 the Union. . . . 
 
 General Pike was impatient with that line of reasoning 
 which sought to justify the actions of the President and of 
 
 5 Phillips' Brief, 4.
 
 The Argument of the Lawyers 37 
 
 Congress, while at the same time asserting that, during these 
 activities, the existence of Texas as a State remained un- 
 impaired and uninterrupted. With some indignation, he re- 
 lated the story of Texas under the domination of the military 
 government, which he described as government by "pro- 
 consuls." As to the effect of the operation of the Reconstruc- 
 tion laws, he said : 6 
 
 We do not say that all this is not warranted by the title of 
 conquest, or that it is not right and just in itself. We only say 
 that Texas has been and is governed under the title of con- 
 quest, and, therefore, is not a State. . . . It is not the 
 question, therefore, whether Texas is rightfully excluded from 
 the Union and governed as a province, but whether it is so 
 in fact. Congress may deny it the right to sue here as a 
 State, with precisely the same right that it can refuse the 
 right of representation. It can not be a State for the purpose 
 of suing here and not a State for the purpose of taking part 
 in the legislation of the country. . . . Incapacitated to do 
 one, it is incapacitated to do the other. 
 
 Merrick took a quite different attitude, and presented a 
 different line of argument. Concerning the status of Texas, 
 he admitted that the facts indicated a change in the form of 
 government. He argued from the leading case of Luther v. 
 Borden that sovereignty resides in the people of the State and 
 they, by virtue of their inherent right and power, may change 
 the form of government. 7 The question as to the validity of 
 this change is one to be decided by the political power in the 
 United States government, and the courts are bound to follow 
 the decision rendered by that power. The political power has 
 declared that the attempted secession was invalid. It was, 
 therefore, void. The government of Texas as organized by 
 the President and under which Throckmorton had been elected 
 governor, had been recognized by the executive and legis- 
 lative departments. The Supreme Court was, therefore, 
 estopped from further inquiry into the status of that govern- 
 ment. 
 
 Pike's Brief, 10; 25 Texas (Supp.) Reports, 512. 
 7 7 Howard, 1.
 
 38 Texas v. White 
 
 The argument as to the merits of the case turned on the 
 question of the legal validity of the contract between the Mili- 
 tary Board, representing an illegal government, and White and 
 Chiles. Paschal and Merrick contended that after Texas had 
 passed the ordinance of secession, in 1861, the State govern- 
 ment was in rebellion against the United States, and that it 
 could not acquire any legal title to the bonds which were 
 found in the State's treasury. The purpose, moreover, of such 
 a utilization of the bonds had been to injure the federal gov- 
 ernment and to destroy the Union. This manifestly treason- 
 able intention removed whatever semblance of legality there 
 might otherwise have been to the transaction. 
 
 The defense urged that, in case Texas was a State, she 
 had by her chosen agents empowered the Military Board to 
 act, and that now the State could not ex post facto deny its 
 own laws and contracts. Furthermore, it could not be claimed 
 that only certain misguided and disloyal people, not 'the 
 State, were acting. It was maintained that "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 author- 
 ized agents. " s If Texas was a State, then for the purposes 
 of this case it was the same State that existed when the con- 
 tract was made. Phillips held that the ordinance of secession 
 had only dissolved the relations of the State to the national 
 government, and that the State government was left intact. 
 In this condition, the relationship of the people to the State 
 government had been the same, and an act of that government 
 was as much an expression of the people's will as before. 
 Such being the case, he applied the established doctrine : 9 
 
 8 Briscoe v. The Bank of the Commonwealth of Kentucky, 11 Peters, 
 318. 
 
 "This principle has been upheld by the Supreme Court. In White 
 v. Cannon (6 Wallace, 443), the court had held that a judgment of the 
 Supreme Court of Louisiana, rendered some days after secession of the 
 State, was valid. This was based on the assumption that the ordinance, 
 being an absolute nullity, was inoperative. Later, in United States v. 
 The Insurance Companies (22 Wallace, 99), J. Strong, speaking of the 
 so-called rebel legislatures of Georgia, said: "If not a legislature of 
 the State de jure, it was the only law-making body which had any exis-
 
 The Argument of the Lawyers 39 
 
 A nation or State can not by changing its government, which is 
 the organ of its will, disengage itself from its obligations nor 
 forfeit the benefits of its treaties or contracts. 
 
 The answer of the State's attorneys to this argument was 
 an appeal to political theory. A State and its government are 
 not one and the same. The government sold the bonds, but 
 the State was not bound by the contract. Just as the State 
 had remained unaffected by the disloyal practices of the in- 
 dividuals who seized the government, it was likewise free 
 from responsibility for any contracts made in furtherance of 
 the rebellion. A corollary of this logic is that a change in the 
 form of the government of a State is not a change in the 
 essence of that State. 
 
 The argument of the defense would probably have proved 
 too powerful for successful contradiction had it been possible 
 to demonstrate that the contract had been made for peaceful 
 purposes. The lawyers submitted a very learned argument to 
 support this idea, but it failed to carry conviction. They 
 claimed that the contract had not been made to assist the rebel 
 government, but for a humanitarian purpose ; that "defence 
 of the State" had no necessary reference to a defence of the 
 Confederacy. However plausible and astute this line of reas- 
 oning might be, the history of the case, as presented by the 
 State, was convincing to the contrary ; and it came to be recog- 
 nized by the court that the contract was made with the inten- 
 tion of aiding the rebel cause. The failure to establish inno- 
 cence of disloyalty in the contracting parties proved an insuper- 
 able obstacle to what should have otherwise been a decisive 
 argument. 
 
 tence. Its members acted under color of office, by an election, though 
 not qualified according to the requirements of the Constitution of the 
 United States." It was accordingly held that a corporation chartered 
 by this legislature for the purpose of conducting an insurance business, 
 not in hostility to any of the provisions of the Constitution, was a legal 
 body, with authority to sue in the United States courts All the ads of 
 the de facto legislature, not in conflict with the interests of the Union 
 or the authority of the general government, were legal.
 
 CHAPTER III 
 
 the; opinion of the court 
 
 The opinion of the court was read by Chief Justice Chase 
 on April 15, 1869. The case had attracted attention from all 
 sections of the country, and it was expected that a great 
 working principle of law would emerge from the clash of vital 
 forces. The interests immediately involved were inconsider- 
 able in importance, but, in order to justify in some measure the 
 course of that branch of the government which at the time 
 was pre-eminently strong, it was necessary to depart from 
 established precedent and legal tradition. The opinion was of 
 political significance ; and the public awaited the contribution 
 to constitutional law and political theory with interest and, 
 probably, on the part of some, with anxiety. At the outset, 
 the court acknowledged that, in view of the varied interests 
 and division of public opinion, it did not expect to satisfy the 
 judgments and anticipations of all. 
 
 I 
 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. 
 
 Some idea of the importance of the case, both to contemporary 
 and subsequent legal history, may be derived from the estimate 
 placed upon it by the Chief Justice. He always considered it 
 the greatest case in which he figured while on the bench, and, 
 likewise, the opinion as the greatest he ever wrote. 1 
 
 The Question of Authority 
 
 After a preliminary review, in which the conditions and 
 circumstances out of which the case arose were briefly men- 
 tioned, the court proceeded to decide the question of authority 
 raised by the defendants. As has been stated previously, 
 Paschal had been appointed solicitor and agent of the State 
 
 1 Hart, Chase, 378.
 
 The Opinion of the Court 41 
 
 by the provisional governor, A. J. Hamilton. After the acces- 
 sion of Throckmorton, in 1866, Paschal's service as legal rep- 
 resentative of Texas terminated, and, although his advice and 
 assistance were retained, Epperson was appointed in his stead. 
 Epperson had instituted the suit before the Supreme Court. 
 Governor Throckmorton had written a letter ratifying this 
 action in the name of Texas. When Throckmorton was super- 
 seded by Pease, Paschal resumed the office of agent and 
 continued the legal action before the court. His efforts had 
 the express sanction and confirmation of the governor. Tt 
 seems, therefore, that, if the government of Texas was legal, 
 the attorneys had sufficient power and authority to act for the 
 State. These facts, at any rate, were sufficiently strong and 
 clear to determine the decision of the question. The court 
 promptly dismissed the plea of Chiles, on the ground that the 
 acts of the State authorities served to dispel any doubt as to 
 the legal right of the prosecuting attorneys. Since the intro- 
 duction of this plea had only been incidental to a denial of 
 statehood to Texas and of legality to her government, it 
 would or would not be substantiated in law and in fact accord- 
 ing as the denial was sustained or dismissed by the court. 
 
 The Question of Jurisdiction 
 1. The American State 
 
 The question of jurisdiction was not so easily decided. As 
 has been suggested, the decision of this question involved the 
 most complicated and important points of the case, and made 
 it memorable in the history of American jurisprudence. In 
 the early days of the Union, there was little or no attempt to 
 define the nature or meaning of the term "state." What con- 
 stituted a State in the American Union at the time of the 
 adoption of the constitution was too well understood for the 
 leaders and framers to trouble themselves with the evolution 
 and formulation of a carefully and finely worded definition. 
 One preliminary source of difficulty and doubt which had been 
 encountered in the arguments of the case in connection with 
 this point lay in this absence from the Constitution and public
 
 42 Texas v. White 
 
 law of the country of a clear and comprehensive definition of 
 the word "state"; and it was necessary that such a definition 
 should be formulated before the court could decide the ques- 
 tions of legal status and jurisdiction. This fault of omission 
 the court therefore, proceeded to remedy. In previous cases, 
 the description of the essential elements of the concept "state" 
 related either to the purposes of its organization, the manner 
 of its composition, and the enumeration of its functions, 
 or to the powers and privileges of States. As tests to 
 discover whether or not a particular political body was a 
 State under the Constitution, they were not individually re- 
 liable or adequate. There must, consequently, be a gener- 
 alization from a synthetic consideration of the various uses 
 made of the word in the Constitution. The word had not 
 been assigned a specific meaning there or in the works of 
 commentators on the Constitution and government. The Chief 
 Justice was, therefore, correct when he remarked that "the 
 poverty of language often compels the employment of terms 
 in quite different significations ; and there is hardly any ex- 
 ample more signal to be found than in the word we are 
 now considering." 2 He then pointed out that, in the Con- 
 stitution, "state" most frequently expresses the idea of terri- 
 tory, people, and government; but that, in some instances, it 
 denotes only one of these elements or features. It is used 
 in its territorial, geographic sense in the requirement that a 
 representative in Congress shall be an inhabitant of the State 
 in which he is elected. It is also used in that sense in the 
 section which provides that trials for crimes shall be held in 
 the State in which the crimes were committed. It is employed 
 in the sense of a community of people in the clause which 
 enjoins upon the United States the duty of protecting each 
 State against invasion, and, again, in that which guarantees to 
 each State a republican form of government. In the sense 
 of government, as distinguished from territory or people, 
 there are numerous and recurring references. Examples of 
 this usage are to be found in the prohibitions of power to the 
 
 2 7 Wallace, 721.
 
 The Opinion of the Court 43 
 
 States, such as those depriving them of the right to make 
 treaties with foreign governments, of emitting bills of credit, 
 or of laying tonnage duties. Each use of the term here men- 
 tioned has the sanction and approval of the Constitution, and 
 any definition agreed upon by the court, if it be comprehensive, 
 must embrace each sense. Proceeding, therefore, from these 
 particular usages, the Chief Justice announced the following 
 definition : 
 
 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. 
 
 Chase was not the first to grasp the various meanings given 
 by the Constitution to the word "state." His statement is 
 practically identical with that submitted, in 1800, by James 
 Madison. At an early date, there was recognition of the fact 
 that the Constitution employs the term in different senses. 
 After acknowledging a lack of consistency in this usage, 
 Madison said, 
 
 Thus it sometimes means the separate sections of territory 
 occupied by the political societies within each ; sometimes the 
 particular governments established by those societies ; some- 
 times those societies as organized into particular governments : 
 and, lastly, it means the people composing those political 
 societies, in their highest sovereign capacity. 3 
 
 Madison, as did Chase, noticed that the uses of the word 
 were often conflicting and regretted that the language is not 
 more rich in words to convey the shades of meaning desired 
 in the treatment of scientific matters. "Although it might 
 be wished," he said, "that the perfection of language ad- 
 mitted les^ diversity in the significations of the same words, 
 yet little inconvenience is produced by it where the true sense 
 can be collected with certainty in the different applications. 1 
 
 "Hunt (editor), Madison's Works, VI, 348. 
 ' Ibid.
 
 44 Texas v. White 
 
 It is almost impossible to escape the conclusion that the Chief 
 Justice, who was a profound student of Democratic legal and 
 political literature, was conversant with the constitutional 
 exegesis of Madison. 
 
 In the light afforded by the definition, the court examined 
 the history of Texas since her secession in order to ascertain 
 whether or not she had lost, during that period, the attributes 
 therein ascribed to a State in the American Union. The 
 definition was sufficiently broad and flexible to prevent allus- 
 ions to a specific act on the part of Texas or to the loss of a 
 a particular privilege, — such as that of representation in Con- 
 gress, — as affecting the disestablishment or destruction of the 
 State. Such questions as: had Texas by the acts of those 
 who directed the state government ceased to be a State? if not, 
 had the State ceased to be a member of the Union? or, had 
 not the acts of Congress, in denying her representation and 
 in denouncing her government as illegal, destroyed the State? 
 could not be answered by reference to this definition. 5 These 
 matters were still before the court for adjudication. 
 
 Of the practical results of secession, the court said : 
 
 In all respects, so far as the objects could be accomplished 
 by the ordinances of the convention, by acts of the Legislature, 
 and by votes of the citizens, the relations of Texas to the 
 Union were broken up, and new relations to the new govern- 
 ment were established for them. 
 
 These acts were undeniably real and positive in fact ; were 
 they so in law ? Not, said the court, to the extent of breaking 
 the union between the State and the United States. This 
 union, the court, in harmony with previous opinions, held to be 
 indestructible, and, thus, it was not dissoluble by any act of 
 the State, the government, or the people. Of this union, the 
 court said : 
 
 6 This interesting bit of constitutional lexicography is important as a 
 contribution to political science and to clarity of thought with respect 
 to a term of doubtful meaning, but what influence, if any, it had upon 
 the result of the case is not clear.
 
 The Opinion of the Court 45 
 
 The Union of the States never was a purely artificial and 
 arbitrary relation. It began among the colonies, and grew 
 out of common origin, mutual sympathies, kindred principles, 
 similar interests, and geographic relations. It was confirmed 
 and strengthened by the necessities of war, and received 
 form, and character, and sanction from the Articles of Con- 
 federation. By these the Union was solemnly declared to 
 "be perpetual." And when these articles were found to be 
 inadequate to the exigencies of the country, the Constitution 
 was ordained to "form a more perfect Union." It is difficult 
 to convey the idea of indissoluble unity more clearly than by 
 these words. What can be indissoluble if a perpetual Union, 
 made more perfect, is not? 
 
 Such according to the Court, was the Union created by the 
 Fathers. Although the Union was made perpetual by the Arti- 
 cles of Confederation and more perfect under the Constitution, 
 it had not operated to submerge under it the identity and separ- 
 ate existence of the constituent members, the States. In de- 
 claring such to be the conclusion of the court, the Chief Justice 
 gave expression to the most eloquent passage in the opinion, — 
 a passage which is an adornment to legal literature. 
 
 But the perpetuity and indissolubility of the Union, by no 
 means, implies the loss of distinct and individual existence, 
 or of the right of self-government by the States. Under the 
 Articles of Confederation each State retained its sovereignty, 
 freedom and independence, and every power, jurisdiction and 
 right not expressly delegated to the United States. Under 
 the Constitution, though the powers of the States were much 
 restricted, still, all powers not delegated to the United States, 
 nor prohibited to the States, are reserved to the States re- 
 spectively, or to the people. And we have already had oc- 
 casion to remark at this term that . . "without the States 
 in union, there could be no such political body as the United 
 States." 6 Not only, therefore, can there be no loss of separate 
 and independent autonomy to the States, through their union 
 under the Constitution, but it may not be unreasonably said 
 that the preservation of the States, and the maintenance of 
 their governments are as much within the design and care of 
 the Constitution as the preservation of the Union and the 
 maintenance of the National Government. The Constitution, 
 
 County of Lane v. State of Oregon, 7 Wallace, 76.
 
 46 T^xas v. White: 
 
 in all its provisions, looks to an indestructible Union, com- 
 posed of indestructible States. 
 
 The dictum that the United States is an indestructible 
 Union composed of indestructible States — is the expression of 
 a thought by Chase which was in the public mind of the time. 
 The idea of it was a part of the Lincoln- Johnson theory on 
 which the War was fought, and it had been variously stated. 
 In the famous Johnson message of 1865, the idea was well ex- 
 pressed in the following terms : 
 
 States with the proper limitations of power, are essential to the 
 existence of the Constitution of the United States. The per- 
 petuity of the Constitution brings with it the perpetuity of the 
 States, their mutual relations made us what we are, and in 
 our political system this connection is indissoluble. The whole 
 can not exist without the parts, or the parts without the whole. 
 So long as the Constitution of the United States endures, the 
 States will endure, the destruction of the one is the destruc- 
 tion of the other ; the preservation of the one is the preser- 
 vation of the other. 7 
 
 The exact form of the expression was, so far as the writer 
 is aware, original with Chase. 
 
 In this passage, the court announced its allegiance to the 
 federal system of government. The statement, indeed, came 
 dangerously near an open espousal of the doctrines and philoso- 
 phy of the ante helium advocates of State rights. There is, 
 however, a great and fundamental distinction between the 
 theory of State rights here defended and the doctrine of 
 State sovereignty which the court repudiated. Thus far, 
 therefore, the court held that the war had not destroyed the 
 identity, the individuality, or the constitutional rights and 
 powers of the States. The judicial department, consequently, 
 was strenuously opposed to the Sumner theory of State suicide, 
 since it declared a State an indestructible entity. Finally, it 
 
 7 Richardson, Messages and Papers of the Presidents, VI, 355-356; 
 for authorship of this famous message, see Dunning in Mass. Hist. 
 Society Proceedings, Vol. XIX, 395. For criticism of the theoretical 
 and political value of Chase's phrase, see Burgess, The American Com- 
 monwealth, in Pol. Science Quar., Vol. I.
 
 The Opinion of the Court 47 
 
 must be said of the passage that it is a glorification of the 
 Union and the federal, in contradistinction to a consolidated, 
 system of government. 
 
 2. The Location of Sovereignty in the United States 
 
 In the case of County of Lane v. The State of Oregon, — a 
 part of which was virtually incorporated in the case of Texas 
 v. White, — the court gave expression to certain ideas relative 
 to the nature of the relationship existing between the States 
 and the United States. In such connection, attention is invited 
 to the following quotation : 
 
 The people of the United States constitute one nation, under 
 one government, and this government, within the scope of the 
 powers with which it is invested, is supreme. On the other 
 hand, the people of each State compose a State, having its own 
 government, and endowed with all the functions essential to 
 separate and independent existence. The States disunited 
 might continue to exist. Without the States in Union there 
 could be no such political body as the United States. 8 
 
 In Texas v. White, the court, as has been pointed out, held 
 that the successful termination of the war by the Union forces, 
 although establishing the perpetuity and indissolubility of the 
 Union, had by no means implied that the constitutional rights 
 and powers of the several States had been abridged. On the 
 contrary, the preservation of these rights and powers had been 
 and continued to be as much the care and design of the Consti- 
 tution as had been and are those of the national government. 
 The political entity to which these rights were judicially as- 
 sured was defined as 
 
 a political community of free citizens, occupying a territory of 
 defined boundaries, and organized under a government sanc- 
 tioned and limited by a written constitution, and established by 
 the consent of the governed. 
 
 The court further declared that "it was the union of such 
 States, under a common constitution, which forms the distinct 
 and greater political unit, which the Constitution designates as 
 
 7 Wallace, 76.
 
 48 Texas v. White 
 
 the United States." The grand result is : An indestructible 
 Union composed of indestructible States. 
 
 In the excerpts here quoted, there is embodied, in general 
 terms, what appears to be the Supreme Court's theory of the 
 location of sovereignty in the United States. There is, in them, 
 of course, no speculation concerning the nature of sovereignty, 
 but only a statement of its exact location according to the opin- 
 ion of the court. There are also, it would seem, the ex cathedra 
 ideas of the court as to the changes, if any, which were effected 
 in this location by the late war. It is the design of this section 
 of the paper to comment briefly upon this theory. 
 
 Just what the war actually accomplished in determining the 
 location of sovereignty in the Union has caused considerable 
 difference of opinion. This result was possibly the inevitable 
 consequence of the complex purpose for which the great war 
 was fought. The Supreme Court, in the opinion of the writer, 
 enunciated in the case of Texas v. White its theory of the 
 location of sovereignty under the Constitution, and of the effect 
 of the war thereon. 
 
 This theory was opposed, in many respects, to those which 
 found widest acceptance before the war. According to the 
 opinion in this case, sovereignty, under the Constitution, re- 
 sides neither in the people en masse nor in the individual States. 
 On the contrary, it is organized and reposed in the political 
 peoples of the several States in Union. Both the federalistic 
 idea that the people as a whole, irrespective of State lines, are 
 sovereign and that of Calhoun that the particular State is sov- 
 ereign are renounced. Instead, the court declares that the 
 rights claimed by the South for the individual State are pos- 
 sessed by all the States as a collective unit. In such a theory 
 emphasis must be placed on the word "union," and in making 
 an estimate of the theory the great use and historical influence 
 of that word must be taken squarely into account. When this 
 theory is applied to the words of the preamble of the Consti- 
 tution, "We, the people of the United States of America," they 
 mean the people of each State as they form the political com- 
 munity under the written constitutions of those States. Under
 
 The Opinion of the Court 49 
 
 this conception, the term "United States" becomes surcharged 
 with meaning and significance. It is in these States united that 
 sovereignty resides/' in an indestructible Union of indestructi- 
 ble States. Territorial unity and integrity and permanency of 
 union were achieved, but, so far as the Constitution was con- 
 cerned, the powers of the States were unimpaired. There was 
 a revolution, therefore, in 1861-1865 in political theory, but 
 not in law ; for the above interpretation of the constitutional 
 system, it is to be presumed, was held by the court to have 
 been the proper one from the date of the foundation of the 
 government. Such is the theory, as I see it, that was advanced 
 by the Supreme Court. 
 
 The following rules may be adopted as a guide in the search 
 for the location of sovereignty : In the first place, sovereignty, 
 in orderly states, resides in the political corporation which 
 actually establishes and ordains the organic law and which, in 
 accordance with the means and methods provided by that law, 
 possesses the power to amend, supersede, or abolish it on occa- 
 
 8 Brownson, American Republic, 220 c t scq. In reference to such a 
 theory, he argues, "We the people of the United States." — Who are 
 this people? How are they constituted and what are the modes and 
 conditions of their existence? . . . Are they the people of the 
 States severally? No; for they are called the people of the United 
 States. Are they a national people really existing outside and inde- 
 pendently of their organization into distinct and mutually independent 
 States? No; for they define themselves to he the people of the 
 United States. If they had considered themselves as States only, they 
 would have said, "We, the States"; and, if independently of State 
 organization, they would have said, "We, the people do ordain," etc. 
 
 "The key to the mystery is precisely in this appellation, United 
 States, which is not the name of the country, for its distinctive name 
 is America, hut a name expressive of its political organization. In 
 it there are no sovereign people without States, and no States without 
 Union, or that are not united States. The term united is not part of a 
 proper name, but is simply an adjective qualifying States, and lias its 
 full and proper sense. Hence, while the sovereignty is and must he in 
 the States, it is in the States united, not in the States severally, precisely 
 as we have found the sovereignty of tin- people is in the people col- 
 lectively, or as society, not in the people individually." For another 
 statement of the theory, see Hurd, Theory of our National Existence. 
 For the history of the phrase "We, the people, etc.," see the journal of 
 the constitutional convention and llinu (editor), Madison's Works. 
 Ill, 23-25; IV, 92 et seq.; Cralle (editor), Calhoun's Works, I, 13.5.
 
 50 Texas v. White 
 
 sion; secondly, in revolutionary societies, it resides in the 
 group, however organized, which assumes and, by whatever 
 means, exercises such creative, amendatory or destructive pow- 
 ers. 10 Employing this guide, let us now see if the theory is 
 historically consistent with our constitutional experience. There 
 is probably no fact in American history more firmly and incon- 
 trovertibly established than that the Constitution was ratified 
 and the general government set up by virtue of the acts of 
 eleven States. These States meeting in separate conventions 
 debated the Constitution and, impelled by various motives and 
 reasons, ratified it. 11 These States and two others had been 
 previously in a union which was thereby superseded and 
 abolished. It seems that there can be no question that had more 
 States willed it, they might have remained out of the new 
 Union, but that they did not so elect is a matter of history. 
 While they were acting in the high capacity of ratifying the 
 Constitution, however, they were united under the Confeder- 
 acy; and, had the States refused ratification, it is to be pre- 
 sumed that, at least for the time being, the Confederacy would 
 have continued its existence. That Confederacy, however, was 
 destroyed when the ninth State ratified the Constitution, 
 and a new Union in which there were eleven members, 
 instead of thirteen as formerly, was set up. It is popular 
 among certain schools of historians to hold, with Chief 
 Justice Chase, that the constitutional Union was more 
 "perfect" than the "perpetual" union of the Confederation, 
 was merely a further step in a steady process of govern- 
 mental evolution, and that they were thus intimately con- 
 nected in history. Such a view appears to me to be erroneous 
 
 10 The wording of this guide for the location of sovereignty is 
 mine. Authority for the first part may be found in the works of 
 Professor Burgess (Political Science and Constitutional Law) and 
 those of his numerous followers. The idea is more clearly stated by 
 Calhoun (Works, I, 138). 
 
 u Madison held that the States in convention assembled represented 
 the State in its sovereignty. See letter to Judge Spencer Roane, 
 Works, IX, 66; and also Works, VI, 352. In the latter reference, he 
 remarked, "The State governments are not the parties to the com- 
 pact, but the States in their sovereign capacity."
 
 The Opinion of the Court 51 
 
 from both a legal and an historical point of view. The Union of 
 the Constitution was not the union of the Confederation; the 
 one destroyed the other absolutely. The articles of Confeder- 
 ation had nothing to do with the Constitution except in the 
 negative way of producing along with certain economic ills the 
 discontent which resulted in a desire for a stronger national 
 government. Despite the fact that the congress of the Con- 
 federation acquiesced in the call for the constitutional conven- 
 tion, the framing, adoption, and ratification of the Constitution 
 were revolutionary. The old union existed, it is true, while the 
 means of its destruction were being forged, but it ceased to 
 exist so far as public law is concerned at the very moment 
 that the ninth State ratified the Constitution. The members 
 who failed to ratify resumed an independent status. We 
 are constrained, therefore, to the conclusion that, as a 
 matter of fact, the constituting act was done by several 
 of the States united for the time, under the Confederacy, 
 but acting separately and without any official connection 
 with any other State. The ratifying conventions, further- 
 more, were elected by political communities in which the 
 suffrage qualifications were radically different. 1 - Since 
 the Constitution did not establish a general or particular 
 suffrage qualification for the convention electors, this was a 
 matter left to the States and by them controlled. So far as 
 there was a legal election for such conventions, it was held 
 under State laws ; and it was the politically organized peoples 
 of the various States who chose the delegates to the conven- 
 tions. It seems clear, also, that the acts of the conventions 
 were voluntary to the extent that they might have rejected 
 the Constitution with as much right as they ratified it. 
 Whatever the motives controlling them, whatever the political 
 or economic forces actuating the votes, the fact is plain that 
 the Constitution was ratified by the representatives of the 
 political communities in the various States. Thus the people 
 
 "Beard, An Economic Interpretation of the Constitution, 04-72; 
 239-252; McKinlcy, Suffrage in the American Colonies.
 
 52 Texas v. White 
 
 of the territories, such as Ohio, Kentucky, and Tennessee, 
 took no corporate part in the establishment of constitutional 
 government, although their inhabitants to some extent were 
 citizens of the States and occupied the lands which in part 
 were then the common property of the States. Had the people 
 at large been those referred to in the preamble of the Constitu- 
 tion, 12 it seems but logical to suppose that those outside the 
 States would have been given a voice in the establishment and 
 ordination of the new government. 
 
 With the Constitution ratified by the States in the union, 
 and the government set in operation under it, it is pertinent to 
 inquire where the power resides which can legally change the 
 law. The Constitution ordains that an amendment adopted by 
 a two-thirds majority of both houses of Congress and ratified 
 by a three-fourths majority of the States effects, to that extent, 
 a change in the instrument. An alternative process is pro- 
 posed by which a convention called by Congress at the request 
 of two-thirds of the States may submit amendments. These 
 propositions are, in turn, brought before the States, and, in 
 case they are accepted by three-fourths of them, the organic 
 law is again altered, modified, or enlarged. Since the second 
 method has become obsolescent, it may be said that Congress 
 is endowed with the power of initiation. In either case, the 
 States have the final and decisive power of determining 
 whether such amendments shall be valid. While each State 
 acts in a separate, independent manner, the validity of its 
 ratification or rejection arises from the fact that the State is a 
 member of the Union. In each case, also, the body which 
 decides between ratification and rejection is the representative 
 of the political community which exists within the boundaries 
 
 12 The historical reason for the usage of the words, "We, the people 
 of the United States," is well known, but it has not been considered a 
 proof by the Nationalist school that the mass of Americans were not 
 the ones referred to. The reasons above stated seem demonstrative 
 proof to the writer that no matter who was "referred to," it was the 
 political people of the States in convention assembled, with the excep- 
 tion of Rhode Island where the Constitution was submitted to and 
 rejected by the electors of five towns, who as a matter of fact ratified 
 and ordained the Constitution.
 
 The Opinion of the Court 53 
 
 of the State. There is no constitutional requirement which 
 makes the electorate of one State similar to that of other 
 States, and, as a matter of fact, they are not alike. 
 
 It will be profitable to narrow this investigation for the 
 moment to a consideration of legal sovereignty, — that is, to the 
 law-making and law-executing power. In this restricted 
 realm, we find that the representatives in Congress are elected 
 and controlled, — so far as there is a control through election, — 
 in accordance with the theory of the Supreme Court. In the im- 
 portant function of electing Congressmen, the power of fixing 
 the suffrage qualifications resides in the States. The elec- 
 toral qualifications in such instances are those required by 
 the States for participation in the election of members to the 
 most popular or numerous branch of the State legislature. 
 With such restrictions as the States impose, the Representa- 
 tives and Senators are elected by the people of the several 
 States. In spite of post bclhan amendments and efforts of the 
 Republican leaders this remains a fact. In the States there 
 is little uniformity. In some, women are admitted to the suf- 
 frage, in others, educational, property, and tax qualifications 
 restrict suffrage. In some States aliens who have announced 
 an intention of becoming citizens vote although not yet citizens 
 of the United States. In the case of the Representative, 
 the State has the power, and employs it, of designating the 
 bounds of the district. It is often said that he is the repre- 
 sentative of the people. This maxim must be construed, 
 however, to mean that he represents the political people 
 of the State ; and it is a significant fact that, as no Con- 
 gressional district ever overlaps the boundary of the State, 
 he is strictly a State representative. There is, to sum up. 
 no necessary similarity in the modes prescribed for the 
 election, in the machinery employed, or in the suffrage fran- 
 chise. These are State matters. Such has been the fact 
 during most of the history of the United Stale-, although for 
 the period, 1871 to 1894, there existed a system of federal 
 supervision of congressional elections. According to the 
 Federal election laws, on the petition of two citizens, two
 
 54 Texas v. Whits 
 
 election supervisors might be appointed by the circuit court, 
 and these were empowered to attend the election, challenge 
 prospective electors of whom they were suspicious, prepare 
 registration lists, and count the ballots and make returns. 
 United States marshals with deputies might assist them in 
 the performance of their duties and keep the peace at the 
 polls, and United States troops could be used for the same pur- 
 pose. In all of this legislation, there was nothing relating to 
 the electoral qualifications of voters, although in practice it is 
 well known that the system was employed for partisan pur- 
 poses and that it did affect electoral privileges. Legally, how- 
 ever, it was designed merely for supervisory purposes, and on 
 that basis the laws were upheld by the Supreme Court. The 
 Constitution gives to each house of Congress the right and 
 power to judge the qualifications of its respective members. 
 It is interesting to note, also, that, in actual law making, 
 the enacting clause reflects the influence of the theory. 
 The words, with some slight variations, are : "Be it enacted 
 or resolved by the Senate and the House of Representatives 
 of the United States in Congress assembled." 
 
 The election of the President and Vice President is one of 
 the nicest tests of this theory. These officers are elected by the 
 voting people of the States, despite the fact that the expression 
 of their will is made indirectly. The Electoral College has 
 become, as is well known, a registering board ; but it is of 
 importance still because of the constitutional requirement that 
 a majority must be in favor of one candidate before his 
 election is secured. It is not demanded, therefore, of the 
 presidential candidate that he obtain a popular majority; 
 and, as a matter of fact, it has very often happened that the 
 successful candidate did not receive such a majority. The 
 suffrage, again, is controlled by the States. The election of 
 President in Massachusetts has no connection, legally and 
 officially, except in point of time, with that in Texas, Con- 
 necticut, or New York. The cumulative results in the States 
 form the election for this office. Although independent in the 
 actual election, that election is valid and effective in Texas or
 
 The Opinion of the Court 55 
 
 Massachusetts, of course, because these States are members of 
 the Union. In case the election is thrown into the House of 
 Representatives, the action is effected by votes of the States, — 
 in a united capacity. 
 
 It might well be asked, in a consideration of the govern- 
 mental organization, as a whole, whether or not the remain- 
 ing department of the national government, the judicial, 
 conforms to the theory here laid down. Preliminary to 
 an answer to this question, it should be stated that in 
 any theory of the federal government an explanation of 
 the judiciary is extremely difficult, if not entirely impos- 
 sible; for the truth is that an appointive judiciary with a 
 life tenure of office is not a republican institution. Any 
 conformity that it may have with this or any other theory 
 would be only partial and questionable. There are how- 
 ever, in the methods of appointment and control certain 
 facts which afford some basis for the claim that the theory 
 is in some measure applicable to this department as well as to 
 the other two. As is well known, the federal judges are 
 nominated by the President, and the appointment is confirmed 
 or rejected by the Senate. They can be impeached by the 
 House of Representatives and tried and convicted, or acquitted 
 by the Senate. While it might be thought that these methods 
 of selection and removal exercise some control, the first is only 
 temporary and the latter is intended only for the regulation of 
 conduct, the punishment of abuse of office, and not as a check 
 on judicial policy. The impeachment and removal of Justice 
 Pickering, of New Hampshire, for inebriety and insanity is no 
 real exception. The attempt to remove Justice Samuel Chase 
 for partisanship failed. The latter is, therefore, rarely invok- 
 ed; and actually in large measure the judicial department is 
 independent. There is one additional fact, however, which in 
 ultimate consideration goes far to prove that this departmenl 
 may come under this theory: the partial control of the judiciary 
 by the political power. Congress may and does control the 
 appellate jurisdiction of the federal courts, having the power 
 to remove all eases from consideration excepl those arising
 
 56 Texas v. White 
 
 from the original jurisdiction. According to the Constitution 
 this power is provided in the following words : "In all the other 
 cases before mentioned, the Supreme Court shall have appel- 
 late jurisdiction, both as to law and fact, with such exceptions, 
 and under such regulations as the Congress shall make." The 
 power to "ordain and establish" carries with it the power to 
 destroy. This power was exercised by Congress during the 
 Reconstruction period in the famous McCardle matter. 13 Con- 
 gress has the power to make and has essayed the power to de- 
 stroy the federal courts, with the exception of the Supreme 
 Court ; and by refusing to confirm appointments and to appro- 
 priate funds for the salaries of new judges and for mainte- 
 nance, it could ultimately destroy the entire department. 14 
 This extreme control is largely speculative, since the courts 
 would rarely withstand political pressure until such measures 
 should become necessary ; but it is a potential and an actual 
 power, and no doubt in times of crises it could and doubt- 
 less would be exercised. The political power, — which does 
 conform to this theory, — may also control the courts and 
 the judicial department in that the personnel of courts may be 
 enlarged and new judges appointed whose views are known 
 to be opposed to the obnoxious opinions which the political 
 power is desirous of overturning. Lincoln urged this practice in 
 connection with the Dred Scott case, and it was widely thought 
 that President Grant actually used this means in the Legal 
 Tender cases. Opinions and decisions may be nullified by 
 constitutional Amendment, as those in Chisholm v. Georgia by 
 the Eleventh Amendment and those in Pollock v. Farmers' 
 Loan and Trust Co., better known as the Income Tax cases, 
 by the Sixteenth Amendment. 15 In addition to all of these 
 considerations, it should be remembered that the federal courts 
 
 13 Bx parte McCardle, 6 Wallace, 324. 
 
 14 The right of Congress to create courts has generally been ad- 
 mitted, but the destructive powers have been seriously questioned. 
 One instance, however, of successful destruction was that of the 
 Commerce Court in 1911. A creative act was also repealed, in 1802, 
 under influence of Jefferson. See Beard, American Government and 
 Politics, 294 ct seq. 
 
 15 2 Dallas, 419; 157 U. S., 429, 158 U. S., 601.
 
 The Opinion of the Court 57 
 
 are dependent upon the executive department of the govern- 
 ment for the enforcement of their decrees. That enforce- 
 ment has usually been immediate and unquestioning; but, 
 during the War of Secession, in one dramatic instance, that 
 of Ex Parte Merryman, President Lincoln simply ignored the 
 court. 16 The court admitted its impotence and acquiesced in 
 the result with protest. Jefferson was frequently in conflict 
 with the courts, and Jackson, in the incident concerning the 
 Cherokee Indians of Georgia, announced his unalterable deter- 
 mination not to execute the decrees of the Supreme Court. 
 Despite all these facts, such control as has been found in 
 this brief study is more or less indirect, and the most powerful 
 judiciary in the world is practically independent in times of 
 peace. So far as the federal judiciary is controlled, it is con- 
 trolled by public opinion and by the other departments of gov- 
 ernment. This theory is applicable to it, therefore, only in 
 that it is partially controlled by departments which do conform 
 to the theory. 
 
 To this extent do the facts of the legal organization of the 
 existing political system substantiate the theory of the court. 
 Under the opinion in Texas v. White, governmental authority 
 and power are divided between the general government on the 
 one hand and those of the States on the other. 17 Thus far the 
 traditional division of power was followed and endorsed ; but 
 sovereignty, in its political aspects, resides in the States in 
 Union, and is not divided. 
 
 3. The Contract Theory and Secession 
 
 Returning from this search for the location of sovereignty 
 in the American Union, which has led the discussion somewhat 
 far afield, attention must now be directed to the conclusions of 
 the court as to the character and status of Texas before and 
 after the attempt at secession. The court argued that the 
 union of Texas witli the United States was something more 
 than a compact. It was the irrevocable incorporation of "a 
 
 "McPherson, Rebellion, 155 el seq. 
 17 Cf. I : .x forte Siebold, 100 U. S., 371.
 
 58 Texas v. White; 
 
 new member into the political body. And it was final." When 
 Texas accepted the terms of annexation, a union was formed 
 in which there "was no place for reconsideration, or revo- 
 cation, except through revolution, or the consent of the 
 States." There was in this last sentence a curious incon- 
 sistency of reasoning which destroyed the logical finality of 
 the conclusions which Chief Justice Chase had drawn from 
 the preambles of the Articles of Confederation and the Con- 
 stitution respecting the perpetuity and indissolubility of the 
 Union. There was after all a way by which this Union could 
 be broken up : through consent of the States. 
 
 The idea that the States, in 1787, consciously and deliber- 
 ately made a contract with one another, that this contract was 
 irrevocable and binding on the parties entering into it, and 
 that, to be abrogated, it must have the consent of all the 
 contracting parties, is here adopted. This conception of the 
 Union found its earliest and ablest exponent in Madison, who 
 claimed that it was the philosophical basis upon which he 
 framed the famous Virginia Resolutions. There the doctrine 
 is set forth that the Union is a compact to which the States 
 severally were parties. 18 The political result of this compact 
 was the creation of the general government of the United 
 States to which certain specifically enumerated powers were 
 delegated. The exercise of powers was precisely limited to 
 
 18 The following extract from the Virginia resolutions is pertinent: 
 "That this assembly doth explicitly and peremptorily declare that it 
 views the powers of the Federal Government, as resulting from the 
 compact to which the States are parties, as limited by the plain sense 
 and intention of the instrument constituting that compact, as no further 
 valid than they are authorized by the grants enumerated in that com- 
 pact ; and that in case of a deliberate, palpable, and dangerous exercise 
 of other powers, not granted by the said compact, the States, who are 
 parties thereto, have the right, and are in duty bound, to interpose for 
 arresting the progress of the evil, and for maintaining, within their 
 respective limits, the authorities, rights, liberties, appertaining to them." 
 See MacDonald's Select Documents, Illustrative of the History of 
 the United States, 1776-1861, p. 156. The Kentucky Resolutions are 
 much stronger in their assertion of the right of the State to inter- 
 fere, and there is even the word "nullification" ; but Madison stated that 
 Jefferson had the same idea when he was writing his resolutions, and 
 that he would have repudiated any other interpretation of them.
 
 The Opinion of the Court 59 
 
 those mentioned in the Constitution. In case of an exercise 
 of power not granted, the resolutions contemplated an inter- 
 position of the States to prevent a violation of the constitu- 
 tional pact. This guardianship of the Constitution was a 
 solemn duty imposed upon the States. During the nullifi- 
 cation period, when Madison came to interpret these resolu- 
 tions, he maintained that he was speaking of the powers and 
 duties of the States in their plural and collective capacity, and 
 not of those of a single State. Thus all the parties to the com- 
 pact could challenge and refuse compliance with the sup- 
 posedly unconstitutional acts of the general government, but 
 this right and power were denied to a single State, which could 
 only initiate an inquiry or an agitation of the matter that might 
 lead to a redress of the injustice protested against. 
 
 From the premise that the Union is a compact to which 
 the States are parties, Madison drew certain conclusions as to 
 the responsibility of the United States and the States in 
 the performance and observance of their mutual constitutional 
 obligations. There were occasions when it became the duty of 
 the States to interfere in order to check the encroachment of 
 the general government upon the limitations prescribed by the 
 Constitution. Thus the rights and powers of the States and 
 the liberties of their people would be preserved. On the 
 other hand, the States had engaged themselves in this compact, 
 and must govern themselves accordingly. They could not 
 release themselves from the compact at their own pleasure. 
 
 It is the nature and essence of a compact that it is equally ob- 
 ligatory upon the parties to it, and that no one of them can be 
 liberated therefrom without the consent of the others", or such 
 a violation of it, or abuse of it by the others, as will amount to 
 
 a dissolution of the compact Applying a like view 
 
 of the subject to the United States it results that the compacl 
 being among individuals aN embodied into States, no State al 
 pleasure can release itself therefrom, and set up for itself. 
 The compact can only be dissolved by consent of the other 
 parties, or by the usurpation of power justly having thai effect. 
 It would hardly be contended that there is anything in the 
 compact authorizing a part;, to dissolve it at pleasure. 
 
 "Hunt (editor), Madison's Works, IX, 355-356. 
 
 r.i
 
 60 Texas v. White 
 
 Madison argued that the attempt by one party to expound or 
 annul the compact gave the others the option of accepting the 
 annulment or insisting, peaceably or forcibly, upon the ful- 
 fillment of obligations by the recalcitrant member. Immedi- 
 ately, however, he said that such an enforcement would be 
 disastrous and "fatal to the hopes of liberty and humanity; 
 and presents a catastrophe at which all ought to shudder." 20 
 The same idea was echoed in the public utterances and 
 proclamations of President Jackson during the nullification 
 period. It was also popular among those who opposed seces- 
 sion and nullification on grounds other than those which con- 
 trolled the action of Jackson. The questions and issues in- 
 volved in this and all such possible controversies were and 
 would be political in nature, to a large extent, and, as there 
 would inevitably be a division of sentiment, it was not likely 
 that consent should ever be secured for a dissolution of 
 the Union ; so the theory was employed later by the most 
 ultra-radical unionists, who saw therein an opportunity of 
 getting their opponents into difficulties from which there 
 could be no escape. It was a sort of political "blind alley" 
 into which the unionists would drive their enemies, who 
 were strong on theory. The argument of the various parties 
 which adopted this theory was very similar to that of 
 Madison. In fact, the administration leaders in the Jack- 
 son period, like Senator Benton, of Missouri, employed the 
 actual words of Madison as authoritative refutation of 
 the extreme State rights position of those who favored null- 
 ification. The attitude of the President was made clear in the 
 famous proclamation to South Carolina, in which, after some 
 vacillation and hesitation, the compact theory is accepted, 
 
 20 Ibid., 357. The theory of contract above presented was frequently 
 repeated by Madison. Its reaffirmation is found in the assertions : 
 "Were this a mere league, each of the parties would have an equal 
 right to expound it; and of course, there would be as much right in 
 one to insist on the bargain, as in another to renounce it" (Ibid., IX, 
 347) ; "The former [a particular State] as only one of the parties, owes 
 fidelity to it, till released by consent, or absolved by an intolerable 
 abuse of the power created" (Ibid., IX, 490).
 
 The Opinion of the Court 61 
 
 with the results which Madison had described. In this connec- 
 tion Jackson said : 
 
 Because the Union was formed by compact, it is said that the 
 parties to that compact may, when they feel themselves ag- 
 grieved, depart from it: but it is precisely because it is a 
 compact that they cannot. A compact is an agreement or 
 binding obligation. It may by its terms have a sanction or 
 penalty for its breach or it may not. If it contains no sanction, 
 it may be broken with no other consequence than moral guilt : 
 if it have a sanction, then the breach insures the designated 
 or implied penalty. 21 
 
 He argued that every government has a sanction, — the right 
 of self-preservation. The implication is, also, that the govern- 
 ment of the United States has the power to enforce the fulfil- 
 ment by the States of the obligations incident to the contract. 
 In his special message to Congress in December of 1832, 
 Jackson restated his position in the following expressive terms : 
 
 The right of the people of a single State to absolve themselves 
 at will, and without the consent of the other States, from their 
 solemn obligations, and hazard the liberties and happiness of 
 the millions which compose the Union, cannot be acknowl- 
 edged. Such authority is believed to be repugnant both to the 
 principles upon which the general government is constituted, 
 and to the objects which it is expressly formed to attain. 22 
 
 The contract theory was one of the strongest and most 
 popular arguments against the action of the Southern States, 
 in 1860-1861, when they seceded from the Union. Lincoln 
 recognized its force, and employed it in his inaugural as an 
 argument in rebuttal of the State sovereignty doctrine asserted 
 by the seceding States. He put it in. the form of questions — 
 
 If the United States be not a government proper, but an associ- 
 ation of States in the nature of contract merely, can it, as a 
 contract, be peaceably unmade by less than all the parties win* 
 made it? One party to a contract may violate it — break it, so 
 to speak; but does it not require all to rescind it ? 2:; 
 
 21 MacDonald, Select Documents, op. cit., 279. 
 
 ""'Richardson, Messages and Papers of the Presidents, II. 621. 
 
 a Xicolay and Hay (editors), Lincoln's Works, II, 3.
 
 62 Texas v. White; 
 
 t 
 
 Such was the theory which the court adopted. Since the 
 other States did not consent to its renunciation of the Union, 
 the court was of the opinion that despite the actions of Texas, 
 
 the obligations of the State, as a member of the Union, and of 
 every citizen of the State, as a citizen of the Untied States, 
 remained perfect and unimpaired. It certainly follows that 
 the State did not cease to be a State, nor her citizens to be 
 citizens of the Union. If this were otherwise, the State would 
 have become foreign, and her citizens foreigners. The war 
 must have ceased to be a war for the suppression of the rebel- 
 ion, and must have become a war for conquest and subjuga- 
 tion. 24 
 
 Our conclusion, therefore, is, that Texas continued to be 
 a State in the Union, notwithstanding the transactions to which 
 we have referred. 
 
 The attitude of Chase, as a statesman, toward secession had 
 been clear, of course, throughout the entire struggle, and his 
 views as a justice were announced, prior to the reading of 
 the opinion in Texas v. White, in June of 1867, at Raleigh, 
 North Carolina. In the case of Shortridge & Co. v. Macon, 
 he said, — 
 
 There is no doubt that the State of North Carolina, by the acts 
 of the Convention of May, 1861, by the previous acts of the 
 governor of the State, by subsequent acts of all the depart- 
 ments of the State government, and by the action of the people 
 at the elections held after May, 1861, set aside her State 
 government and constitution connected under the national con- 
 stitution with the government of the United States, and estab- 
 lished a new constitution and government connected with 
 another so-called central government, set up in hostility to the 
 United States, and entered upon a course of active warfare 
 against the national government. 
 
 Nor is there any doubt that by these acts the practical rela- 
 tions of North Carolina to the Union were suspended, and 
 very serious liabilities incurred by those who were engaged in 
 them. 
 
 But these acts did not effect, even for a moment, the sep- 
 aration of North Carolina from the Union, any more than the 
 acts of an individual who commits grave offenses against 
 
 24 This would have been contrary to the resolutions of Congress, 
 declaring the nature of the war. Dunning, Essays, 13.
 
 The Opinion op the Court 63 
 
 the State by resisting its officers and by defying its authority, 
 separate him from the State. Such acts may subject the 
 offender even to outlawry, but can discharge him from no duty 
 and can relieve him from no responsibility. 25 
 
 Confronted with the alternative of declaring a particular 
 political community a State or not a State, — an alternative 
 created by conditions arising from secession, the war. and the 
 attempts to restore or reconstruct the commonwealths which 
 were formerly the Southern States in the Union, — the court 
 encountered the difficulties of those who would reconcile 
 the facts and results of revolution with historical traditions, 
 legal precedents, and political theories which that revolution 
 in large measure, sought to destroy. In the state which has 
 no written constitution the problem is not a particularly serious 
 or difficult one, for the facts of revolution can then be ad- 
 mitted without legal complications ; but when the public law 
 of a country is embodied in the fixed and rigid forms of a 
 written constitution, the effort becomes involved in compli- 
 cations and, oftentimes, in contradictions. In the United 
 States, there has always been a very large element which 
 has sought to preserve the historic continuity of our con- 
 stitutional law. Even during the war and reconstruction per- 
 iods, when radicalism was rampant, a strong effort was made, 
 especially in the Senate, to prevent a hiatus in legal develop- 
 ment. Loyalty to and respect for the Constitution were often 
 invoked in order to prevent too radical a departure from 
 earlier forms. That the Constitution, the method and ex- 
 tent of administrative control, and the division of powers 
 between the departments and between the State and na- 
 tional .governments, were not more radically changed \v;is 
 in the main, I think, due to the old-time prestige of the 
 Constitution and to the desire to avoid an abrupt revolution 
 in law. And when the time came for the establishment of the 
 results of the war in the law of the land, care was taken that 
 there should be an uninterrupted progression in the legal 
 history of the nation. In laboring for the accomplishment of 
 
 'Johnson, Chase Decisions, 136.
 
 64 Texas v. White 
 
 this purpose, the course of reasoning followed by the conserv- 
 atives was frequently tortuous and inconsistent. Notwith- 
 standing this fact, the duty and task of securing this end 
 were assumed by the Supreme Court of the United States, 
 and the opinion in the case of Texas v. White was written 
 with this purpose in view. 
 
 For all such efforts, the radicals had an ill-concealed con- 
 tempt. "The law of the thing" was a secondary matter, and 
 was to be disregarded in case it interfered in securing the po- 
 litical ends for which they were contending. Such an attitude 
 had the advantage that may be derived from the great philo- 
 sophical truth that it is oftentimes impossible to harmonize the 
 violent changes effected by one generation with the laws and 
 political theories entertained by another. In a process of this 
 sort, they said, a definite political fact, for the achievement of 
 which blood has been shed and treasure expended, often be- 
 comes obscured in the intricate complexities of legal fiction. 
 
 4. The Consequences of Rebellion 
 
 The fact that the obligations and duties of Texas and her 
 citizens remained unaltered during the period of civil strife, 
 and that the State as such was not destroyed, was not to be 
 taken as an indication that relations of the State with the 
 general government remained unchanged. There must be 
 certain relations of the State and the Union complete and 
 unbroken, however, before a suit can be brought before the 
 Supreme Court by the State. In other words, Texas, in order to 
 sue as a State, must possess a state government "competent to 
 represent the State in its relations with the national govern- 
 ment, so far at least as the institution and prosecution of a 
 suit is concerned." 20 Marshall, in the case of Hepburn and 
 Dundass v. Ellxey, had held that the community, claiming to 
 be a State, must actually have representatives in Congress, 
 that the relations of the State to the Federal government 
 must be complete, in order to invoke the original jurisdiction 
 of the Supreme Court. 27 These requirements Chief Justice 
 
 26 7 Wallace, 726-727. 
 
 27 Ibid. 727,
 
 The Opinion of the Court 65 
 
 Chase calmly set aside. He argued that, while obligations 
 often remained unimpaired, the relations may be undergoing 
 the most violent disruption. This was revolutionary doctrine, 
 but so were the circumstances which demanded attention. 
 
 The obligations of allegiance to the State, and of obedience to 
 her laws, subject to the Constitution of the United States, are 
 binding upon all citizens, whether faithful or unfaithful to 
 them ; but the relations which subsist while these obligations 
 are performed are essentially different from those which arise 
 when they are disregarded and set at naught. 
 
 He continued that, when the people and government of a 
 State departed from their allegiance to the Union and from 
 the performance of their duties, as in the time of civil war, 
 the rights and privileges of the State were to be regarded 
 suspended. Under such circumstances, it would be absurd to 
 claim for such States the right to representation in Congress. 
 Instead of having that right "the government and the citizens of 
 the State, refusing to recognize their constitutional obligations, 
 assumed the character of enemies, and incurred the conse- 
 quences of rebellion.'* Just what, under the Constitution, 
 were the nature and prerogatives of the State, in such a 
 condition, the court did not feel it necessary to specify. The 
 opinion presented the curious phenomenon of an abstract en- 
 tity, a State, remaining in the Union, while devoid of loyal 
 government and inhabitants. To this extent, the court adopted 
 the forfeited-rights theory of the status of the States. 
 
 It has been seen that the court required the State to meet 
 certain requirements before it could take advantage of the 
 original jurisdiction. These were spoken of by the court in 
 vague and general terms. No specific rule was laid down by 
 which it would be possible to determine with certainty whether 
 or not a particular political body, purporting to be a State, 
 possessed the prerequisites which made such an invocation 
 legal and proper. In the first place, it was asserted that there 
 must be a government competent to represent the State in the 
 national government. It was not required that this government 
 actually have representatives in good standing at Washington, 
 — only that it be capable of having them there. A state govern-
 
 66 Texas v. White 
 
 ment in rebellion against the United States could not sue in the 
 court, but this inhibition did not extend to other governments 
 of proper allegiance which might under different circumstances 
 be organized as substitutes. 28 Instead of announcing a definite 
 criterion by which the claims of a State might be judged, the 
 court held that each case must be decided upon its own merits. 
 
 5. Restoration and Reconstruction 
 
 The duties of the United States when confronted by the 
 extraordinary conditions of 1861-1865 were two-fold: the first 
 was the suppression of the rebellion, and the second was the 
 restoration of the erring States to their former relations. The 
 authority for the first, said the court, is provided by the Con- 
 stitution in the power to suppress insurrection and carry on 
 war ; and, for the second, in the obligation of guaranteeing 
 a republican form of government to each State. The latter 
 power is the natural and necessary complement of the former. 
 The President in his proclamation appointing Governor Ham- 
 ilton had claimed the right to take steps toward the restoration 
 of Texas on the ground that the Constitution guaranteed to 
 each State a republican form of government and, secondly, on 
 the ground that his military and civil position made it in- 
 cumbent on him to fulfill the obligations of the United States. 
 The way in which he had endeavored to perform these duties 
 has been recounted already, and we shall now see how far 
 the court would uphold the executive. The application 
 of these very clear powers and duties would have been 
 simple enough had the task not been complicated by an 
 additional element — the great social change in the status 
 of the negro which resulted from the success of the Union 
 cause. In accordance with the Emancipation Proclamation, 
 as it was interpreted in military circles, the negro slaves 
 became freemen whenever the federal forces obtained control 
 of certain Southern States and districts. 29 This application 
 
 23 This opinion, for example, would not have prevented the Pier- 
 point government of Virginia from suing in the court. 
 
 29 Dunning, Essays, 133-135 ; Schofield, Forty-six Years in the 
 Army, 370.
 
 The Opinion of the Court 67 
 
 of the war power was later confirmed by the ratification of 
 the Thirteenth amendment to the Constitution. According to 
 the Chief Justice, all these acts from the beginning made it 
 clear that there "must be complete enfranchisement" of the 
 freedmen. 
 
 The new freedmen necessarily became a part of the people, and 
 the people, still constituted the State ; for States, like individ- 
 uals, retain their identity, though changed to some extent in 
 their constituent elements. And it was the State, thus con- 
 stituted, which was now entitled to the benefit of the consti- 
 tutional guaranty. 30 
 
 Although this was a non sequitur of the most flagrant type, 
 its annunciation denoted how far revolutionary ideas had 
 invaded the court room. It may be safely said that, since the 
 formation of the government, the States had retained the right 
 to determine the suffrage qualifications. Here it is implied 
 that any government which debarred the negro from equal 
 participation in the privileges of its citizens was not truly 
 republican in form. This idea was not expressly stated, but 
 the implication is so strong that it is impossible to doubt what 
 was in the mind of the court. It showed how far the judiciary 
 had traveled from the interpretation of Daniel Webster and the 
 ante bell um lawyers of his school. Madison, in the Feder- 
 alist, had declared that this clause had imposed upon the 
 United States the duty of guaranteeing the continuity of the 
 systems of the state governments then in existence, or, in 
 other words, that it was an insurance against the destruction 
 of that form of government which was in vogue at the time of 
 the adoption of the Constitution and which was most certainly 
 considered republican/ 11 The primary aim was to prevent 
 
 30 7 Wallace. 728-729. 
 
 "See No. 43 of the Federalist (Lodge Edition), 270 et scq. There, 
 in discussing the guaranty clause, he says, "In a confederacy founded 
 on republican principles, and composed of republican members, the 
 superintending government ought clearly to possess authority to 
 defend the system against aristocratic or monarchical innovations." 
 The members, therefore, of the Union should have their republican 
 governments "substantially maintained." This protection and authority 
 extend no further, said Madison, than guaranteeing the continuance
 
 68 Texas v. White 
 
 the introduction of monarchical elements which might subvert 
 the existing order. 
 
 Webster, in his great argument in the case of Luther v. 
 Borden, had said : 
 
 The law and the Constitution go on the idea that the States 
 are all republican, that they are all representative in their 
 forms, and that these popular governments in each State, the 
 annually created creatures of the people, will give all proper 
 facilities and necessary aids to bring about changes which the 
 people may judge necessary in their constitutions. 32 
 
 A corollary of this doctrine is that when the governments of 
 the States are changed the alteration must be accomplished 
 in accordance with the amending clause of the constitution of 
 the State. The duty of the United States was to protect the 
 State against changes of any other character or by any other 
 method. 
 
 In the leading case of Luther v. Borden, above mentioned, 
 Chief Justice Taney held that the guaranty clause was an 
 obligation for Congress to fulfill. "Under this article of the 
 Constitution it rests with the Congress to decide what gov- 
 ernment is the established one in the State. For as the 
 United States guarantee to each State a republican form of 
 government, Congress must necessarily decide what govern- 
 ment is established in the State before it can determine whether 
 it is republican in form or not." 33 When Congress decides, 
 the decision is binding upon every other department of the 
 government. The executive authority, also, has a certain 
 
 of the pre-existing governments. The States might change their gov- 
 ernments, but in the process of substitution and alteration, they must 
 take care that the product be republican. 
 
 This clause should be taken in connection with those which protect 
 the State against foreign invasion and against domestic violence. All 
 of these provisions are aimed to maintain the stability and integrity 
 of the State government. Thus Madison treats the subject in that 
 number of the Federalist. For the views of the constitutional con- 
 vention, see Hunt (editor), Madison's Works, III, 93, 144, 469-471. 
 
 33 Mclntire, (editor), Webster's Works, VI, 217 et scq.; Dunning, 
 Essays, 132. 
 
 33 7 Howard, 42.
 
 The Opinion of the Court 69 
 
 power in the matter. In case of domestic violence within the 
 State, Congress must provide means for meeting the exigency. 
 The method of procedure has been provided in the act of 
 February 28, 1795, by which the President, on application 
 of the State authorities, can suppress an insurrection. The 
 President, therefore, is empowered to decide whether the 
 conditions call for interference ; and, since he must act on the 
 demand of the state authorities, he must decide which is the 
 legal government of the State. Thus both branches of the 
 political power have a part in the recognition of State govern- 
 ments and in guaranteeing to them a republican form, though 
 it is possible that the part of the President is more military 
 than political. Such a recognition by the political power made 
 the government legal in the eyes of the judicial department. 
 
 Such was the accepted interpretation of the guaranty clause 
 before the war period. 34 The first indication of the use to 
 which the clause was afterwards put was furnished by the 
 famous Sumner resolutions of February 11, 1862, in which he 
 claimed for the national government the power to set up 
 within the territory of the recreant States new governments, 
 in the organization of which should be included those ideas 
 
 34 There had, indeed, been intimations of a different conception of 
 its meaning, but they had not received any very general approval. Of 
 this nature were the comments of Senator John Forsyth, of Georgia, 
 in 1833, when the bill for the enforcement of the collection of revenue 
 duties, a measure to deal with the South Carolina difficulty, was being 
 debated. At the same time, Calhoun's resolutions defining the nature 
 of the Union were being considered. Forsyth, one of the most dis- 
 tinguished of the Jackson administration leaders in the Senate, de- 
 clared that the United States had the power to enter a State and change 
 its government so as to make it conform to the accepted idea of a 
 republican form of government. This daring utterance aroused the 
 immediate and vehement opposition of Calhoun, who said that he was 
 amazed to hear such a doctrine announced by a Southerner in whose 
 State there existed a peculiar institution which might be declared in- 
 compatible with a republican form of government by its enemies. 
 (Cralle (editor), Calhoun's Works, II, 308; Annals of Congress, 1833, 
 Vol. 9, Part 1, p. 774.) Although it seems from the meager reports 
 of this debate that the declaration of Forsyth did not attract great 
 attention, it nevertheless stands as a precedent for the radical interpre- 
 tations given to the clause during the war period.
 
 70 Texas v. White 
 
 of political science of which he was so conspicuous a protag- 
 onist. In that case Congress, in accordance with the injunction 
 of the Constitution, should assume jurisdiction of the territory 
 which was formerly occupied by the States now in rebellion 
 against the Union, and should proceed to establish republican 
 governments. 
 
 At the time of its announcement, this idea, in connection 
 with others equally revolutionary, so shocked the conservatives 
 that the resolutions were never debated. In January of 1864, 
 however, a bill was introduced by Representative Henry Win- 
 ter Davis to guarantee to certain States a republican form 
 of government, when the ideas of Sumner were made use of. 
 This bill was immediately occasioned by a message of Pres- 
 ident Lincoln's which had been submitted during the previous 
 month. A part of the message was devoted to a statement 
 of reasons for the reorganization and restoration of those 
 States from which the Confederate forces had been expelled 
 to their normal relations with the national government. The 
 procedure for this had been announced in his proclamation 
 of amnesty and reconstruction of the same day, December 8, 
 1863, on which the message was sent to Congress. One 
 basis for his action was the guaranty clause, and it was ap- 
 pealed to as justification for protecting the loyalist element 
 of Louisiana and Arkansas. "This section of the Constitution 
 contemplates a case wherein the element within a State favor- 
 able to republican government in the Union may be too feeble 
 for an opposite and hostile element external to, or even within, 
 the State; and such are precisely the cases with which we are 
 now dealing." 35 This statement referred to the constitutional 
 provision for the protection of the State against invasion and 
 domestic violence. The result of the message was the bill 
 already mentioned. In reference to the guaranty clause, Davis, 
 speaking for the bill, remarked : 36 
 
 33 Nicolay and Hay (editors), Lincoln's Works, II, 454-455; Mc- 
 Carthy, Lincoln's Plan of Reconstruction, 225 et seq. 
 
 30 Congressional Globe, appendix, part IV, 1 Sess., 38th Cong., p. 82, 
 et seq.
 
 The Opinion of the Court 71 
 
 That clause vests in the Congress of the United States a 
 plenary, supreme, and unlimited political jurisdiction, para- 
 mount over courts, subject only to the people of the United 
 States, embracing within its scope every legislative measure 
 necessary and proper to make it effectual ; and what is neces- 
 sary and proper, the Constitution refers, in the first place, to 
 our judgment, subject to no revision but that of the people. 
 It recognizes no other tribunal. It recognizes the judgment of 
 no court. It refers to no authority except the will of the 
 majority of Congress, and of the people on the judgment, if 
 any appeal from it. 
 
 He contended that there could be no republican govern- 
 ment in the State which refuses to obey the Constitution, 
 or in that State whose government the President and the 
 Congress of the United States do not, on their part, recognize 
 as legal. Since the Southern States were not so recognized 
 by Congress, and had no republican governments, it was the 
 imperative duty of Congress to supply them with such. Con- 
 gress could organize a government, in accordance with its 
 ideas of what that government should be, and then recognize 
 it as legal and established. And there was no power under the 
 Constitution which could gainsay the act. This elaborate argu- 
 ment was made in order to provide a means for the Con- 
 gressional abolition of slavery, and, later, for an assurance 
 of the civil rights of the freedmen. While it was admitted that 
 this power could be called into activity only by a dereliction 
 of the States, it was claimed that, when once invoked, there 
 was no legal limitation upon it. 37 
 
 The Texas v. White case was the first instance in which the 
 Supreme Court was called upon to construe the guaranty clause 
 since the introduction of the new and unhistorical interpreta- 
 
 " This was the famous Wade-Davis bill, which, after a long discus- 
 sion, passed the House by a vote of 12> to 59. In the Senate, it was 
 championed by Wade, of Ohio. There it was adopted first by a vote 
 of 26 to 3, and later by 18 to 14. The measure was enacted on the 
 last day of the session, and was carried to Lincoln only a short while 
 he fun- adjournment. It received the pocket veto of the President. His 
 proclamation, defending his action, and reaffirming bis determination to 
 adhere to his own plan, caused the issuance of the Wade-Davis mani- 
 festo.
 
 72 Texas v. White; 
 
 tion of that clause. The opinion in this regard, — obiter dictum 
 though it was, — reflected the revolutionary spirit of the time, 
 and went far toward endorsing the radical view. By implica- 
 tion, the opinion would make it obligatory upon the United 
 States to institute the change when the State government does 
 not conform with the ideal entertained by the federal govern- 
 ment. This necessitated a violent shifting of the center of 
 political gravity from the States to the federal government, 
 and a consequent centralization of power in the latter. In 
 requiring admission of the freedmen to the electorate as a 
 sine qua 11011 to the possession of a republican form of govern- 
 ment, the reasoning of the court reminds one of that of Sum- 
 ner, who solemnly assured the Senate that prior to the adop- 
 tion of the Constitution in 1789, there had been, with the 
 possible exception of Massachusetts, no republican govern- 
 ments in our States, that slavery and such a form were incom- 
 patible. 38 He argued, moreover, that to debar the negro from 
 the suffrage would be tantamount to a loss of republican form 
 to any government so excluding him. 
 
 In applying these general views, the court to some extent 
 passed opinion on the legal validity of both the Presidential 
 and the Congressional plans of restoration and reorganization. 
 The President's action in establishing provisional governments 
 was upheld as being a power properly derived from his authori- 
 ty as commander-in-chief of the army and navy. He had 
 found the State of Texas deprived of civil government and 
 had supplied it until the people could reorganize one for them- 
 selves. 
 
 So long as the war continued, it cannot be denied that he might 
 institute temporary government within insurgent districts, oc- 
 cupied by the National forces, or take measures, in any State, 
 for the restoration of State governments faithful to the Union, 
 employing, however, in such efforts, only such means and 
 agents as were authorized by constitutional laws. 39 
 
 Whether he had been in the right in superintending the entire 
 
 38 Dunning, Essays, 134; McCarthy, Lincoln's Plan of Reconstruc- 
 tion, 209. 
 
 39 7 Wallace, 730.
 
 The Opinion of the Court 73 
 
 process of restoration without consultation with the legislative 
 department, the court did not consider it necessary to state. 
 This was as far as the Supreme Court would go in support 
 of the President in his controversy with Congress. Thus far, 
 however, the support was definite and thorough-going, for it 
 was declared that the organization of the provisional govern- 
 ments was within his power. But it was stated that he was in 
 error in arrogating to himself the authority and function of 
 guaranteeing a republican form of government to the State. 
 In reference to this power, the court said, 
 
 The power to carry into effect the clause of guaranty is pri- 
 marily a legislative power, and resides in Congress. Under the 
 fourth article of the Constitution, it rests with Congress to 
 decide what government is the established one in a State. For, 
 as the United States guarantee to each State a republican form 
 of government, Congress must necessarily decide what govern- 
 ment is established in the State, before it can determine 
 whether it is republican or not. 40 
 
 The action of the President, it was alleged, must be considered 
 as purely temporary and provisional. It was within the consti- 
 tutional competency of Congress to declare it to be so or to be 
 final and complete. The court in Luther v. Borden had said 
 in this connection : "Undoubtedly, if the President in exercis- 
 ing this power, shall fall into error, or invade the rights of the 
 people of the State, it would be in the power of Congress to 
 apply the proper remedy." If this view is correct, the President 
 was wrong in part and Congress right. The Reconstruction 
 Acts have often been criticized as being unconstitutional, but 
 from this case and others it would appear that the enforcement 
 of the guaranty clause is a legislative function. It would seem, 
 therefore, that Congress had the constitutional power to enact 
 reconstruction legislation. Whether the particular laws adopt- 
 ed were valid or not is a wholly different question which would 
 have to be considered on its legal and political merits. 
 
 As to the acts of Congress, when setting in operation its 
 
 "The words of Taney in the case of Luther v. r<,<nh-n, 7 Howard, 
 42.
 
 74 Texas v. White 
 
 own plan for reconstruction, there was nothing in the case 
 which demanded that the court should decide whether they 
 were constitutional or otherwise. It was only necessary, for the 
 purposes of the case, to ascertain whether or not these acts 
 had recognized the existing governments as established. This, 
 in the opinion of the court, the Reconstruction Acts had done. 
 These acts had pronounced the governments illegal, and had 
 made them subject to the military authority and, finally, to 
 the paramount authority of the United States. As a matter 
 of fact, the district commanders had, in numerous cases, super- 
 seded the State authorities, and had, in the case of Texas, re- 
 moved the governor. This showed a very doubtful respect for 
 the Johnson governments, but a respect, in the eyes of the 
 court, sufficient to warrant the assumption that they had been 
 recognized by the political power. In denouncing the govern- 
 ment as illegal, the law had mentioned the name of that govern- 
 ment. It had, therefore, recognized it as existing and estab- 
 lished. It may be said, furthermore, in development of this 
 ingenious idea, that, although the destruction of these govern- 
 ments was threatened and provided for, Congress had not actu- 
 ally destroyed them. When the State government of Texas, 
 also, had been superseded and the governor removed, the suc- 
 cessor had been recognized by the agent of Congress, General 
 Sheridan. The political power of the government, through 
 him, had taken action, and the court was estopped from fur- 
 ther inquiry. That government, so organized, represented the 
 State of Texas, and had given its sanction to the efforts of the 
 attorneys who were prosecuting the case ; and "the necessary 
 conclusion is that the suit was instituted and prosecuted by 
 competent authority." Texas, having been declared a State 
 despite the vicissitudes undergone, had a government capable 
 of representing its interests. The plea of a lack of jurisdiction 
 was, therefore, dismissed. 
 
 In this elaborate opinion, the Supreme Court had adopted 
 the forfeited-rights theory in practically all the decisive argu- 
 ments concerning the status of the Southern States. In ans- 
 wering the question, whether Texas, in consequence of her re-
 
 The Opinion of the Court 75 
 
 bellious course, ceased to be a State in the American Union, 
 the desire to preserve the historic continuity of legal develop- 
 ment involved the court in logic of questionable soundness 
 when it came to reconcile the action of Congress with the 
 theory it chose to adopt. "Historic continuity" was merely a 
 high-sounding name, however, for the theoretical continuity 
 of the Union and the existence of the States had nothing to 
 do with the practical disruption of relations between that 
 Union and the States. The court was wrestling with the prob- 
 lem, in the first place, of acquiescing judicially in the results 
 of the Congressional Reconstruction as accomplished facts, 
 which it would be politically unwise to disturb ; and, in the 
 second place, of rescuing the States from the position of hope- 
 less inferiority, which the Congressional policy seemed to por- 
 tend for them. Among those who desire a continuation of the 
 federal system, this opinion should, therefore, be held in re- 
 gard. Inconsistent, however, with this end was the interpre- 
 tation placed upon the phrase "republican form of govern- 
 ment." In this regard the words of Chief Justice Chase read 
 more like the political pamphlet of the agitator than the calm, 
 dispassionate opinions popularly supposed to be the result of 
 judicial reasoning. Like the political pamphlet, its significance 
 was lost sight of as soon as the stress of the issue which occa- 
 sioned its production was relieved. 41 
 
 41 Inclusion of the negro in the suffrage was particularly agreeable 
 to Chase as a politician. He had been as radical as any in demanding 
 the enfranchisement of the freedmen, and, therefore, had been greatly 
 disappointed when the Johnson governments had declined to extend 
 the ballot to them. A letter to John Russell Young is interesting in 
 connection with this general subject. "I start with the premises that 
 Congress has full power to govern the rebel States until they accept 
 terms of restoration which will insure future loyalty, the fulfilment of 
 national obligations, the repudiation of all rebellion and the obligations 
 of rebellion; and the security of all rights for all men; and that the 
 acts of Congress must be construed with reference to these ends, 
 liberally ; . . . . 
 
 "I don't want to see Congress set aside the provisional State govern- 
 ments. It would be a very mischievous measure in its effects on pri- 
 vate rights, and lead to much litigation, and very seriously retard, I 
 fear, the restoration of order and prosperity to the Smith. Congress 
 may well provide that the military commander may remove State offi-
 
 76 Texas v. White; 
 
 The Matter of the Injunction 
 
 From the questions concerning authority and jurisdiction, 
 the court turned to a consideration of the merits as presented 
 by the pleadings and evidence. At the time of the secession 
 of the State from the Union, the Indemnity Bonds, or so many 
 of them as remained in the State Treasury, were indisputably 
 the property of Texas. As its property, the State, in the opin- 
 ion of the court, had the right, and from the first exercised 
 it, of imposing certain restrictions upon the transfer and alien- 
 ation of the bonds, — restrictions which the holders must ac- 
 cept and abide by on receipt. A disregard of the State law, 
 therefore, worked forfeiture upon the bonds transferred. The 
 court held that the repealing act was inoperative and void, since 
 
 cials who put themselves in the way of reconstruction; and that their 
 successors may be elected by Universal suffrage, but I would not have 
 military commanders authorized to appoint their successors, unless 
 temporarily;" . . . See also letter to Gen. Schofield, May 7, 1865, 
 Forty-six Years in the Army, 373. Letter to Justice S. J. Field, en- 
 dorsing the work of the Committee on Reconstruction. Warden, 
 Chase, 526 ; Hart, Chase, 339, 340. 
 
 The opinion of the court, in this particular connection, has not had, 
 as yet, any noticeable effect upon subsequent legal history. So far as 
 the writer is aware, it has not been referred to for a controlling prece- 
 dent in any later case. On the other hand, there have been opinions 
 and decisions which have gone far to overthrow the doctrine which 
 Chief Justice Chase here enunciated. The opinion, indeed, in Minor v. 
 Happersett is, in effect, contradictory. In this case, decided in 1874 
 (21 Wallace, 162), the plaintiff, a woman, denied that the government 
 of the State of Missouri was republican in form because it restricted 
 the elective franchise to males, thus debarring without cause many 
 eligible citizens. Chief Justice Waite, supported by the unanimous court, 
 declared, in this case, that "The guaranty is of a republican form of 
 government. No particular government is designated as republican, 
 neither is the exact form to be guaranteed, in any manner especially 
 designated. Here, as in other parts of the instrument, we are com- 
 pelled to resort elsewhere to ascertain what was intended. 
 
 "The guaranty necessarily implies a duty on the part of the States 
 themselves to provide such a government. All the States had govern- 
 ments when the Constitution was adopted. In all the people partici- 
 pated to some extent, through their representatives elected in the man- 
 ner specially provided. These governments the Constitution did not 
 change. They were accepted precisely as they were, and it is, therefore, 
 to be presumed that they were such as it was the duty of the States
 
 The Opinion of the Court 77 
 
 it was adopted at a time when the State government was in 
 armed hostility to the government of the United States. The 
 contract, also, between the Military Board and White and 
 Chiles was without standing in law, since it was made in de- 
 liberate furtherance of the Confederate cause. 
 
 The court admitted the argument that the State government 
 of Texas was, at least for some purposes, a de facto govern- 
 to provide. Thus we have unmistakable evidence of what was repub- 
 lican in form, within the meaning of that term as employed in the Con- 
 stitution." 
 
 Here is a more or less direct return to the historical interpretation 
 of the clause, and, in addition, a general statement as to the nature 
 of a republican form. The idea seems to be entertained that a repre- 
 sentative government is republican in form. Whether or not this is 
 the only form that is republican, the court does not state, but that the 
 framers had such a conception of the nature of a republican form, 
 the court was then convinced. 
 
 In the matter of /;: re Duncan (139 U. S., 449; also cf. Crampton v. 
 Zabriskie, 101 U. S., 601), an appeal from the State of Texas in which 
 it was declared that on several grounds the laws of that State were in- 
 compatible with a republican form of government, the court, speaking 
 through Chief Justice Fuller, emphatically endorsed the argument of 
 Webster in the controlling case of Luther v. Borden. There is also, in 
 this case, a further development of the idea of the nature of republi- 
 can government which was held, to some degree, in Minor v. Happer- 
 sett : "By the Constitution, a republican form of government is guaran- 
 teed to every State in the Union, and the distinguishing feature of that 
 form is the right of the people to choose their own officers for govern- 
 mental administration, and pass their own laws in virtue of the legis- 
 lative power reposed in representative bodies, whose legitimate acts 
 may be said to be those of the people themselves ; but, while the people 
 are thus the source of political power, their governments, National and 
 State, have been limited by written Constitutions, and they have them- 
 selves thereby set bonds to their own power, as against the sudden 
 impulses of mere majorities." In this and all other cases in which 
 this subject lias been involved, there is consistent opinion to the effect 
 that the duty of guaranteeing to the States republican forms of govern- 
 ment is reposed in the political power. In Minor v. Happersett, how- 
 ever, the idea is presented that the States must provide the govern- 
 ment which it desires the United States to guarantee. In the last 
 case mentioned, In re Dun ran, the court states that representative 
 governments have been considered republican in form. This idea was 
 reiterated with enthusiasm, in 1900, when the matter came up in the 
 case of Taylor and Marshall v. Beckham (178 U. S., 548). The en- 
 tire question of republican form of government was examined anew 
 in the unique rases of the Pacific Slates Telephone and Telegraph Com-
 
 78 Texas v. White 
 
 ment which could transact legal business and pass valid laws. 
 As the only government in the State, it had performed the 
 ordinary functions of administration, and its acts were, to a 
 certain extent, effectual and legal. The law in this regard was 
 considered by the court to be as follows : 
 
 That acts necessary to peace and good order among citizens, 
 such for example, as acts sanctioning and protecting marriages 
 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 emanat- 
 ing from a lawful government, must be regarded in general 
 as valid when proceeding from an actual, though unlawful 
 
 pany v. Oregon and of Kiernan v. The City of Portland (223 U. S., 
 118, and Ibid., 151). The legal points involved in these cases were 
 precisely the same to the extent that the judgment rendered in one 
 sufficed for the other. It was claimed by the plaintiffs that the adop- 
 tion of the initiative and referendum amendment to the State Con- 
 stitution of Oregon had rendered the government of that State un- 
 republican in form since it had converted it from a representative 
 government to a pure democracy. In a masterly opinion, Chief Justice 
 White adopted practically in toto the reasoning of the court in Luther 
 v. Borden, and declared that the enforcement of the guaranty clause 
 resided in the political department of the government. He asserted 
 that an attempt on the part of the judiciary to decide whether changes 
 made in a State government were republican or not would result in 
 anarchy. If the political power recognized the change as republican, 
 the decision was binding on the courts. As regarding the idea of the 
 court assuming jurisdiction, he said: "The suggestion but results from 
 failing to distinguish between things which are widely different, that 
 is, the legislative duty to determine the political questions involved, 
 in deciding whether a State government republican in form exists, 
 and the judicial power and ever-present duty whenever it becomes 
 necessary in a controversy properly submitted to enforce and uphold 
 the applicable provisions of the Constitution as to each and every 
 exercise of governmental power." The power of Congress, as granted 
 by the Constitution, was carefully recognized and respected. Unques- 
 tionably the legislative department has the ultimate and the real power 
 of enforcing the guaranty clause. A state may change its government 
 or that government may be changed from whatever cause and in what- 
 ever manner, and the change per se will be valid if Congress so de- 
 cides. But the acts of the changed government and of Congress must 
 conform to the provisions and restrictions of the Constitution. If un- 
 constitutional acts are committed by virtue or result of the change
 
 The Opinion of the Court 79 
 
 government ; and that acts in furtherance or support of rebel- 
 lion against the United States, or intended to defeat the just 
 rights of citizens, and other acts of like nature, must, in gen- 
 eral, be regarded as invalid and void. 42 
 
 Having arrived at these conclusions, the court made short work 
 of the arguments of the defendants that the law creating the 
 Military Board was a legal measure for the legitimate defense 
 of the State, and that the contract with White and Chiles was 
 a humanitarian act. The law of the State was held to be out- 
 side the constitutional rights of the States to take measures 
 to defend themselves against foreign invasion and domestic 
 violence. The court, also, refused to sustain the contention 
 that the contract was negotiated with innocent purpose, and 
 held throughout that it was made in support of the cause of 
 rebellion. It was, therefore, the decision of the court that the 
 title of the State of Texas had not been divested by the con- 
 tract entered into by the agents of the insurgent State govern- 
 ment. 
 
 The contract being illegal, and White and Chiles being un- 
 lawful possessors of the bonds, it was held that no one could 
 make a valid purchase of them from these parties, if it was 
 known that these holders had no defensible title. The doc- 
 trine had been laid down in the case of Murray v. Lardner 43 
 
 or by Congress in enforcing the guarantee of republican government, 
 the court can and, according to the Chief Justice, will, rectify them. 
 
 In none of these cases is the attempt made to define exactly and pre- 
 cisely what constitutes a republican form of government. It would 
 seem that the earlier attitude was that, in some way, the representa- 
 tive element must be maintained as essential to the form. If such was 
 the conception of republican government, it did not, at the time of the 
 formation of the Constitution, secure an expression in that instrument. 
 The matter perforce is left to the decision of each generation, al- 
 though that decision is restricted by constitutional forms. 
 
 a 7 Wallace, 733. For general discussion of the legality or illegal- 
 ity of the acts of the Confederacy, the seceding States, and of their 
 subjects and citizens, see Shortridge & Co. v. Macon (Chase Decisions, 
 136) ; Keppel's Admrs. v. Petersburg R. R. Co., (Ibid., 167) ; Pedicaris 
 v. Charleston Gas Light Co., (Ibid., 435) ; Walker v. Christian, (21 
 Grat., 301) ; Mauran v. The Insurance Co., (6 Wallace, 1) ; The Price 
 Cases, (2 Black, 636). 
 
 <;, 2 Wallace, 118.
 
 80 Texas v. White 
 
 that a bona fide purchase of bonds, in fair exchange, was a 
 lawful transaction ; and that, to be successfully challenged in 
 court, it must be proved that the element of good faith was 
 absent. The State must, therefore, establish the fact that those 
 who had purchased the bonds had had notice of the defective 
 title of White and Chiles. These were the rules to be observed 
 in case the bonds had been transferred from the original owner 
 before maturity. The contract between the Military Board and 
 White and Chiles had been executed after the bonds had 
 matured, or, at least, had become redeemable, a distinction, in 
 this case with effect. According to the law, the purchasers 
 of such bonds had no other right or title than that of those 
 from whom the purchase was made. 44 White and Chiles, 
 having no legal title, it followed that the other holders had 
 none. The court, furthermore, held that due notice had been 
 given in the New York newspapers that White and Chiles were 
 in unlawful possession of the bonds. Those who bought bonds 
 of them, therefore, had done so despite this warning. They 
 had purchased them without good faith, and had no legal 
 title. The injunction, therefore, was granted against the per- 
 sons named in the bill. 
 
 The Effect of Payment by the Treasury 
 
 As to the effect produced in law by the payment of the 
 bonds of some of the defendants by the United States Treas- 
 ury, it was decided that this action "could not affect the rights 
 of Texas as a State of the Union, having a government ac- 
 knowledging its obligations to the National Constitution." The 
 determination of the exact effects of the payment by the Treas- 
 ury Department was left to a future hearing, — the matter was 
 not cleared up in either the opinion of the court or in the 
 decree. 
 
 The Dissenting Opinions 
 The decision of the court was rendered by a vote of five to 
 three, the court then having eight members. With the Chief 
 Justice were joined Justices Clifford, Davis, Field, and Nelson ; 
 
 Goodman v. Simonds, 20 Howard, 343.
 
 The Opinion of the Court 81 
 
 and, in opposition, were Justices Grier, Miller and Swayne. 
 Messrs. Swayne and Miller thought that Texas was incapable, 
 in her condition then, of maintaining and prosecuting a suit 
 in the Supreme Court. In addition to denying Texas the right 
 of invoking the original jurisdiction, which would have dis- 
 missed the case, they thought that it was a question in which 
 the court was bound by the action of the legislative department 
 of the government. It is to be presumed, perhaps, that the 
 Justices had in mind the enforcement of the guaranty clause. 
 Congress by declaring the existing governments in the South- 
 ern States to be illegal had refused to recognize them as being 
 established and republican in form. The court, according to 
 this presumption, would be debarred from admitting a suit 
 from a government of such questionable standing. On the 
 merits of the case, these Justices concurred with the majority 
 of the court. Mr. Justice Grier, however, objected to the de- 
 cision on all the points raised. His dissenting opinion is a 
 very interesting and spirited document. 
 
 To the question: Is Texas one of these United States? he 
 answered a decided negative. ''This is to be decided," he said, 
 "as a political fact, not as a legal fiction. This court is bound 
 to know and notice the public history of the nation." He 
 maintained that after considering the history of Texas during 
 the time intervening between the attempt at secession and the 
 filing of the suit, he failed to discover, at any part of that 
 period, the attributes of Statehood. The common sense view, 
 he maintained, was outlined in the case of Hepburn & Dundass 
 v. Bllxey by Chief Justice Marshall, and he claimed that the 
 test supplied in that opinion for the ascertainment of the nature 
 of a political community in the American Union was appli- 
 cable to this case. When Marshall's definition was applied to 
 the facts of Texas history, it proved definitely that that com- 
 monwealth was not a State in the Union, since there were no 
 representatives in Congress accredited to her, and since the 
 pretended State had not participated in the last election of 
 president. Instead, she was governed as a conquered province 
 by military power. The legislative power, furthermore, had
 
 82 Texas v. White 
 
 declared that Texas was a "rebel State" without legal and 
 republican government. What was the difference, he inquired, 
 between her status and that of the territories or the Indian 
 tribes. In the absence of organized rebellion, they were es- 
 sentially alike in the fact that they were similarly governed, 
 and in that justice was administered by the United States 
 courts. The fact that the federal courts were in operation 
 was no test of the existence of the State. "Dacotah is no 
 State," he said, "and yet the United States courts administer 
 justice there." 
 
 He argued that as a fact Texas was not politically in the 
 Union. In summing up his opinion, he said : 
 
 I do not consider myself bound to express an opinion judicially 
 as to the constitutional right of Texas to exercise the rights and 
 privileges of a State of this Union, or of the power of Con- 
 gress to govern her as a conquered province, to subject her to 
 military domination, and keep her in pupilage. I can only sub- 
 mit to the fact as decided by the political position of the gov- 
 ernment ; and I am not disposed to join in any essay to prove 
 Texas a State in the Union when Congress have decided that 
 she is not. It is a question of fact, I repeat, and of fact only. 
 Politically, Texas is not a State in this Union. Whether right- 
 fully out of it or not is a question not before the court. 
 
 Justice Grier, therefore, in strict logic and with judicial con- 
 sistency, refused to join in the attempt to harmonize the Con- 
 gressional plan with the public law. 
 
 Whether, conceding the continued existence of the State, 
 she had the right to repudiate her contracts, he considered ir- 
 relevant to the present case. The payment of the bonds by the 
 United States would not have assisted the agents of the rebel- 
 lion. "It is a matter of utter insignificance to the government 
 of the United States to whom she makes the payment of these 
 bonds. They are payable to the bearer." On this point, the 
 justice was at variance with all his brothers of the court and 
 with the policy of the United States government ; it had be- 
 come a well established principle that acts done in assistance 
 of the insurrection against the United States were void, and 
 that property dedicated to such purposes was liable to seizure
 
 The Opinion of the Court 83 
 
 and confiscation. The dissenting Justice was, perhaps, on 
 stronger ground, when he said, in defense of the main con- 
 tention : 
 
 Having relied on one fiction, namely, that she is a State in the 
 Union, she now relies upon a second one, which she wishes this 
 court to adopt, that she was not a State at all during the five 
 years that she was in rebellion. She now sets up the plea of 
 insanity, and asks the court to treat all her acts made during 
 the disease as void. 
 
 On the contrary, he claimed that the act of secession was the 
 sovereign act of a sovereign State; that the government of the 
 State during the period when the question of the right to se- 
 cede was being decided by war was as much the government of 
 the State as that State had had before the crisis; and that the 
 war, while deciding the question of secession, had not decided 
 that the State could repudiate contracts made with her own 
 citizens for food, clothing, and medicines. This was a contest 
 between Texas and her own citizens, and, in case there had 
 been fraud or illegal practice, the State had recourse to her 
 own courts. But her representatives should not set up a plea 
 of illegality on the part of the de facto government which 
 made the contract. 
 
 The same "organized political body," exercising the sovereign 
 power of the State, which required the indorsement of these 
 bonds by the governor, also passed the laws authorizing the dis- 
 posal of them without such indorsement. She cannot, like the 
 chameleon, assume the color of the object to which she adheres, 
 and ask this court to involve itself in the contradictory posi- 
 tions, that she is a State in the Union and never out of it, and 
 yet not a State at all for four years, during which she acted 
 and claimed to be "an organized political body," exercising all 
 the powers and functions of an independent sovereign State. 
 Whether a State de facto or de jure she is estopped in denying 
 her own identity in disputes with her own citizens. 
 
 The Justice refused to follow the court in declaring that for 
 some purposes the de facto government of Texas was legal 
 and its acts valid, and, for other purposes, illegal and void. 
 In the case of Hardenberg, he insisted that the purchase of
 
 84 Texas v. White 
 
 the bonds was bona fide and for a full consideration. He said 
 that the argument of the court, in granting a judgment in favor 
 of Texas, was as follows : 
 
 These bonds, though payable to the bearer, are redeemable 
 fourteen years from date. The government has exercised her 
 privilege of paying the interest for a term without redeeming 
 the principal, which gives an additional value to the bonds. 
 Ergo, the bonds are dishonored. Br go, the former owner has 
 a right to resume the possession of them, and reclaim them 
 from a bona fide owner by a decree of a court of equity. 
 
 Aside from the fact that the Justice here held his brethren up 
 to rather severe ridicule, the statement was unimportant, since 
 it did not reveal a full comprehension of the issues involved. 
 On this point, however, as on the others, he opposed to the de- 
 cree of the court this epigrammatic statement, 
 
 A court of chancery is said to be a court of conscience; and 
 however astute may be the argument introduced to defend this 
 decree, I can say only that neither my reason nor my conscience 
 can give assent to it. 
 
 The Decree 
 
 The decree, after some preliminary and formal considera- 
 tions, declared the contract between the Military Board and 
 White and Chiles, made January 12, 1865, to be null, void, 
 and of no effect ; and ordered 
 
 that the said White and Chiles, and their agents and attorneys, 
 and all others claiming to act in their behalf, be perpetually en- 
 joined from asserting any right or claim under the same; and 
 that the complainant is entitled to recover and receive the 
 bonds and coupons mentioned in the said contract, as having 
 been transferred or sold to the said White and Chiles, which 
 at the several times of service of process in this suit were in the 
 possession or control of the defendants respectively, and any 
 proceeds thereof which have come into such possession or con- 
 trol with notice of the equity of the complainant. 45 
 
 It was ordered more specifically that the defendants were 
 enjoined from setting up any claim to the bonds mentioned as 
 
 45 25 Texas (Supp.) Reports, 618. The preceding paragraph of the 
 decree decided the matter of the authority of the prosecuting attorneys.
 
 The; Opinion of the; Court 85 
 
 having been actually transferred by the Military Board, that 
 is, to the 135 bonds transferred to White and Chiles, or to the 
 seventy-six bonds in the hands of Droege & Company, of 
 Manchester, England. Such of these bonds as were then in 
 the possession of the defendants were declared the rightful 
 property of the State of Texas, and the holders were ordered 
 to restore them. In pursuance of this decree, the court decided 
 upon the number of bonds the various defendants were ac- 
 countable for as follows : 
 
 Birch, Murray & Company, 8, 46 George W. Stewart, 4; 
 Birch, Murray & Company, 4; 47 John A. Hardenberg, 34. 
 
 The effect of the redemption of certain bonds by the United 
 States Treasury was reserved by the court for later decision. 
 In order to facilitate a rapid settlement of the various interests 
 involved and as yet undecided, the court promised to enter- 
 tain requests for advice and direction from either or both 
 sides. 48 
 
 * These were the eight bonds on deposit in the United States Treas- 
 ury. 
 
 " These bonds and those of Hardenberg had been "redeemed" by 
 the Treasury. 
 
 4S The decree is to be found in an abridged form in the Supreme 
 Court report of the case, 7 Wallace, 741. In its full form, it is repro- 
 duced in Paschal's Texas (Supp.) Reports, 25, pp. 617-620.
 
 CHAPTER IV 
 
 SUBSEQUENT LITIGATION 
 
 Texas v. Hardenberg 
 
 As has already been remarked, the decision and decree in 
 the case of Texas v. White left the settlement of many of the 
 points involved to later proceedings. The first case which arose 
 in this process of legal adjustment was that of Texas v. Har- 
 denberg. 1 The bonds held by Hardenberg had been redeemed 
 under an agreement which has already been noticed. When 
 the court decreed that the defendants were liable to suit for 
 the recovery of the indemnity bonds, Hardenberg was in- 
 cluded in spite of the fact that his bonds had been paid. Under 
 these circumstances, Texas sued in the Supreme Court for the 
 delivery of the bonds or their proceeds. In answer to the 
 bill in this suit, Hardenberg endeavored to reopen the discus- 
 sion of the merits of the original case by reviewing the history 
 of his purchase and attempting to show that this action had 
 been in good faith. He urged further that his bonds had been 
 paid by the United States, and that his counsel should be heard 
 as to the effect in law of a payment which had taken place be- 
 fore he had been served with notice of a contest by the court of 
 Texas. On the whole, he argued that there had been an error 
 of pleading in the original case and that the bill had only 
 prayed for the rendition of the bonds, not the proceeds. 2 
 
 The opinion of the court was delivered by Chief Justice 
 Chase. The court, at the outset, declined to consider the bill 
 in the case of Texas v. White to be of the narrow and re- 
 stricted character assigned to it by the defendant. To interpret 
 it so it would, it was alleged, savor of "extreme technicality." 
 The clause of the bill asking expressly for the injunction and 
 decree had also petitioned for such other comfort as the court 
 might see fit to allow. This clause was considered sufficiently 
 general and broad to render possible the inclusion of the 
 
 1 10 Wallace, 68, decided December term, 1869. 
 2 Paschal and Merrick for Texas ; Carlisle and Evarts for Harden- 
 berg.
 
 Subsequent Litigation 87 
 
 matters sought for by the complainant. The court then passed 
 to a consideration of the other contentions of Hardenberg. 
 The bill in Texas v. White had been filed in the Supreme Court 
 on February 15, 1867, and Hardenberg was served with the 
 subpoena on the 27th of that month. He had received pay- 
 ment of his bonds on the 16th. The court questioned the valid- 
 ity and actuality of this payment; and. in addition, held that 
 the complaints of the Texas agents at the treasury with which 
 Hardenberg was admittedly familiar, the institution of the 
 suit in the case of Texas v. McCulloch, and the repeated post- 
 ponement of the payment of his bonds by the treasury collec- 
 tively constituted notification of the fact that Texas claimed 
 the bonds and would contest the possession of them with him. 
 It was held that the correspondence between the treasury offi- 
 cials and Hardenberg, the negotiations of counsel, and the arti- 
 cles of agreement between Hardenberg and McCulloch contain- 
 ed demonstrative proof of the fact that Hardenberg was aware 
 of the action of Texas. It was, therefore, unimportant to in- 
 quire whether the delivery of the coin check had preceded the 
 service of the process. The payment of the bonds, moreover, 
 had not been real. As the comptroller had said in a letter to 
 Chase, "In form the bonds had been paid ; in fact the proceeds 
 had been withheld from Mr. Hardenberg, because of the legal 
 proceedings." These proceeds, the court ordered to be turned 
 over to the Texas representatives. 
 
 In conformity with this order, Hardenberg paid the pro- 
 ceeds of his thirty-four bonds into the hands of Mr. Paschal. 3 
 
 Texas v. Chiles 
 
 This case grew out of what was supposed to have been an 
 error on the part of Chiles in the accounting for bonds which 
 he submitted in the case of Texas v. White. In that case, he 
 and his co-defendants had accounted for some fifty-one bonds, 
 and the decree had provided for the restoration, immediately 
 
 3 Similar proceedings were taken to secure payment of the Stewart 
 bonds. It appears, however, that these wire paid to the clerk of the 
 Supreme Court. This case was one of those which wvrv unreported for 
 a long time. It is to hi- found in 131 U. S., xcvii.
 
 88 Texas v. White 
 
 or ultimately, of these bonds or the proceeds to the com- 
 plainant. There had been, however, no specific decree against 
 any bonds in the possession of Chiles. Texas now entered a 
 motion in the Supreme Court for a rule on Chiles that he 
 might be forced to give up twelve bonds which were alleged 
 to be a part of those concerned in the transfer from the Mili- 
 tary Board to White and Chiles. This allegation was based 
 partly on the answer of White, which had claimed that Chiles 
 had ten bonds unaccounted for, partly on a deposition of a 
 man named McKinley to the same effect, and partly on an 
 affidavit of one George Taylor that Chiles had admitted to 
 him that he had two bonds on deposit in a Kentucky bank. It 
 was claimed by the Texas lawyers that these bonds were now 
 subject to the order of the court. Chiles claimed that the bonds 
 had been acquired after the service of the injunction process 
 and even after the issuance of the decree. It must be proved, 
 he maintained, that the bonds were among those transferred to 
 White and Chiles. 
 
 Mr. Justice Nelson read the opinion of the court. It was 
 held, in the first place, that the evidence derivable from the 
 answer of White was not competent in this case. The facts, 
 as presented by the State, were, moreover, before the court 
 when the decree was issued. The evidence had at that time 
 been insufficient to warrant an order against Chiles, and it 
 was still inconclusive. The bill in the original case had limited 
 the accounting to the bonds in possession of the defendants to 
 those possessed at the time of service. The motion was, there- 
 fore, denied. 
 
 In re Paschal* 
 
 The immediate cause of the legal proceedings in this matter 
 was the entertainment of two motions by the Supreme Court ; 
 ultimately the causes reach farther and deeper and lead to a 
 consideration of a factional controversy in Texas political his- 
 tory. The first motion was for an order that George W. Pas- 
 chal pay to the clerk of the court the sum of $47,325 in gold, 
 an amount which he was alleged to have received through the 
 
 4 10 Wallace, 483.
 
 Subsequent Litigation 89 
 
 enforcement of the decree in the case of Texas v. White and 
 which was properly due to the State. The second motion was 
 for a rule removing Paschal's name from the docket as counsel 
 in the case of Texas v. Pcabody's Executors. 
 
 The accession of Edmund J. Davis as governor of Texas, 
 in 1870, meant that the faction of the Republican party to 
 which Paschal belonged would be thrown out of power. If 
 the letters which passed between the two men are to be taken 
 as authoritative evidence, it seems clear that the governor had 
 conceived a rather violent political antipathy to Mr. Paschal. 
 The actual break in their official relations came in the dismissal 
 of Paschal as legal and financial representative of the State and 
 in the appointment to that position of Thomas J. Durant. 
 Paschal had foreseen this outcome and had written that, "as 
 I do not belong to his wing of the Republican party, and [as] 
 he is one of those extreme ab initio radicals, who believe that 
 every official act from secession to the present day is void, it 
 may be after his inauguration, that my control over the con- 
 troversy may cease." 5 On March 25, 1870, Governor Davis, 
 in an official communication, notified Paschal of his removal 
 and requested that "you will please pay over to Hon. T. J. 
 Durant the amount of money, bonds, and coupons in your 
 hands belonging to the State, and out of the same that gen- 
 tleman is authorized to pay you a reasonable compensation 
 for your services." 6 In case Paschal refused obedience to this 
 order, Durant was empowered, in the name of the State, to 
 take legal measures to compel it. Paschal refused to comply, 
 and the case under consideration was the result. A long and 
 at times acrimonious correspondence followed between the 
 various parties, in which the motives of all concerned were 
 aired with partisan frankness. 
 
 Paschal had collected from the defendants in the case of 
 Texas v. White $47,325, in which sum were the proceeds from 
 the Hardenberg bonds and those from the bonds of Birch, 
 
 'Letter to Droege & Co., Record of Cases, 1876, 102 (Supreme 
 Court Library). 
 
 'Ibid., p. 31. Davis to Paschal.
 
 90 Texas v. White; 
 
 Murray & Company. Out of this sum, he claimed to have 
 spent $13,356 for various expenses and costs incident to the 
 prosecution of the case. A large part of this disbursement, ac- 
 cording to the itemized statement which he submitted, had 
 gone to the three lawyers who had assisted him. As he had 
 taken none for himself, the remainder of the sum was intact. 
 He maintained that the State, for various claims, owed him 
 the large sum of $102,525, and that after he had deducted the 
 amount in his possession, there would be a remainder of more 
 than $68,556 still due him. These claims comprised several 
 items. Paschal had been reporter of the Supreme Court of 
 Texas during several years, and had undertaken to print his 
 reports for the State. He had engaged to have four hundred 
 copies of each volume of his reports printed and bound. For 
 this service, he was to receive seven dollars for each page con- 
 tained in the volume. He had printed four volumes, for which 
 the compensation, according to the agreement, would have 
 been $28,280. Of this amount, the State still owed him, as he 
 insisted, $17,577. The governor refused to make a requisition 
 for this amount, and even ordered the State Treasurer to 
 ignore Paschal's demands. Whatever Governor Davis thought 
 of the printing, or of the contract under which the work was 
 accomplished, he submitted no proof of improper conduct on 
 the part of Paschal. In his second claim, Paschal estimated 
 his services in the Texas v. White case at $20,000. This 
 estimate, Davis pronounced to be absurd and exorbitant. There 
 had been no definite agreement between Paschal and the 
 State authorities regarding the compensation which he was to 
 receive. In the absence of a stipulation for a certain fee, he 
 was, according to his own statement, to charge "as the re- 
 sponsibility, the expense, the time, the learning necessary, and 
 the services should render proper." 7 Such a situation certain- 
 ly rendered a latitudinous estimation of the value of his efforts 
 probable, if not inevitable. Governor Pease had written Pas- 
 chal that his compensation depended upon the action of a 
 
 7 Paschal's affidavit, record of In re Paschal, p. 3. (Found in Record 
 of Cases, 1876, Supreme Court Library).
 
 Subsequent Litigation 91 
 
 future legislature or upon the amount of bonds collected. When 
 Pease visited Washington, in 1869, he made an agreement 
 with Paschal to collect the Peabody bonds and also those in 
 the hands of Droege & Company. For the collection of these 
 two sets of bonds, he was to receive a compensation of 25 
 and 20 per cent, respectively. In pursuance of this agree- 
 ment, Paschal had set about energetically to collect the bonds ; 
 and, if his opinion is accepted, had attained considerable suc- 
 cess, when his efforts were thwarted by his removal as agent. 
 Since the only thing which had prevented the accomplishment 
 of his purpose had been the interference of the governor, Pas- 
 chal now claimed his full compensation, at least in regard to 
 the Peabody bonds. Governor Davis repudiated this claim as 
 preposterous. 
 
 This was the situation when Durant recommended that 
 Paschal should secure counsel with whom he, as the State's 
 agent, could treat in accordance with the instructions of the 
 Texas authorities. Paschal obeyed this request, and employed 
 A. G. Riddle. After long negotiations and much correspon- 
 dence, Durant proposed to honor the disbursements in the 
 case of Texas v. White, and to pay Paschal $5,000 for his 
 services in that case and $2,500 for his efforts to collect the 
 Peabody bonds. Paschal refused to accept the compromise, 
 and the matter was taken to the Supreme Court in the form 
 mentioned above. 
 
 As an evidence that his service had been long, disinter- 
 ested, and capable, Paschal submitted for the perusal of the 
 court the correspondence between himself and the holders of 
 the Peabody bonds, the firm of Dabney, Morgan & Company, 
 of New York, and, in addition, that with Droege & Company. 
 These negotiations referred to the three hundred bonds which 
 Swisher had carried to England in 1862. s It will be recalled 
 that Peabody bought one hundred and forty-nine of these 
 bonds. Before he had completed the payment for them, how- 
 ever, he endeavored to secure a return of his money by suing 
 
 8 See above p. 19 N., for an account of the transaction and the history 
 of Swisher's activity.
 
 92 Texas v. Whits 
 
 Droege & Company. This suit was made in the English courts, 
 hut there seems to have been no record of a decision, although 
 a temporary injunction was granted him. On the death of 
 Peabody, his executors, Dabney, Morgan & Company, present- 
 ed the bonds for redemption by the United States. Against 
 this payment, the Texas agent protested unavailingly. The 
 State endeavored to return the amount of money which Pea- 
 body had spent for the bonds, but it was not accepted. Then 
 a suit was begun in the Supreme Court against Peabody's 
 executors. This case was pending when Paschal was re- 
 moved. 9 Of the one hundred and fifty-one bonds which had 
 remained in the hands of Droege & Company, a word must be 
 said. Paschal had promptly laid claim to the bonds, and the 
 English firm seemed willing to compromise with the State. 
 This compromise had been prevented by various injunction 
 suits, such as those of Chiles and Peabody. Finally, Paschal 
 notified the firm that, in case restitution was not made, the 
 Supreme Court would declare the bonds useless and cancelled, 
 and the United States would pay them to the State of Texas ; 
 and the costs to which the house had been put would, there- 
 fore, be lost. Whether moved by this threat or not, a represen- 
 tative of Droege & Company was eventually sent to the United 
 States to treat with Paschal about the transfer of the bonds. 
 The correspondence between the two indicates that an agree- 
 ment had practically been reached when Paschal was peremp- 
 torily removed by the governor of Texas. 
 
 All of these facts were presented to the court as an evi- 
 dence of the fidelity and constancy of Paschal's service, and 
 little effort was made to controvert the fact or value of this 
 service. In addition, he stated that, in case the court forced 
 him to pay the money collected to Texas, he would have no 
 recourse under Texas law by which his fees might be secured. 
 
 Mr. Justice Bradley read the opinion of the court. The 
 
 9 The case of Texas v. Peabody's Executors is mentioned on page 
 xcvii of 131 U. S. Reports. It is, however, one of the unreported cases 
 which have been tried before the Supreme Court. The final history 
 of the indemnity bonds belongs to the financial and fiscal history of the 
 State of Texas.
 
 Subsequent Litigation 93 
 
 court claimed jurisdiction of this matter by virtue of the con- 
 trol it was empowered to exert over its own officers and the 
 members of its own bar. There were certain duties which a 
 lawyer owed to his client which the court could compel him 
 to perform without an appeal by the client to the ordinary 
 courses of law, and, conversely, it might protect the interests 
 of the faithful lawyer in case they were unfairly endangered. 
 In this particular connection, it was held that an attorney, in 
 case he collects money for a client, should pay over all sums 
 after he had deducted the costs and the disbursements. The 
 question in this case was : had Paschal retained the money in 
 his hands in bad faith, and was he, in consequence, guilty of 
 such misconduct as would justify the interference of the 
 court ? After reciting the facts in the case, the court held that 
 Paschal had not been guilty of conduct unbecoming an attor- 
 ney in his relation with his client. The claim he made to the 
 money was in good faith, and it would be against equity to 
 force him to yield it up since, in that case, he would be with- 
 out legal recourse. As to whether he was justified in keeping 
 it all, or in keeping any, the court considered it unnecessary to 
 state. The Texas authorities could appeal to the ordinary 
 channels of the law, since there was no inhibition preventing 
 the State from suing Paschal. In substantiation of this view, 
 the court cited the usage in England and many of the American 
 States to prove that an attorney had a lien upon money col- 
 lected for a client who has not rewarded him for his services. 
 The retainer of Governors Hamilton and Pease had referred 
 to the bonds indiscriminately and particularly to those of 
 White and Chiles ; so Paschal had not violated any agreement 
 in that respect. On these grounds, the motion to force Pas- 
 chal to pay over the money to the State was denied. 
 
 The second motion, praying for the removal of Paschal as 
 attorney representing Texas was granted. Paschal had denied 
 that the governor had the power to remove him until he was 
 paid. He had persisted in attempting to represent Texas 
 until lie had seriously embarrassed Durant. The court held 
 that this was a mistaken view to take of the governor's power.
 
 94 Texas v. White 
 
 The State of Texas had the right to dismiss one attorney and 
 to employ another, although the State remained responsible for 
 and bound by contracts already entered into with the attorney 
 then being dismissed. Whether the State in this particular 
 case remained liable for the whole contingent fee originally 
 promised Paschal, or for so much of it as the services were 
 worth, or for none of it, the court declined to say. However 
 this might have been, the State had the unquestionable right 
 to change representatives. "The court cannot hesitate in per- 
 mitting the State to appear and conduct its causes by such 
 counsel as it shall choose to represent it." The motion was, 
 therefore, granted. 10 
 
 Huntington v. Texas 11 
 
 The cases previously considered were tried in the Supreme 
 Court by virtue of its original jurisdiction, but that now being 
 noticed was taken up on appeal from the District of Columbia 
 courts. It was a suit against William S. Huntington, the 
 cashier of the National Bank of Washington, concerning 
 thirty-seven of the Texas indemnity bonds. Ten of these 
 bonds, before they came into the possession of the bank, had 
 been the property of a Mr. Haas. He had presented them to 
 the treasury officials for redemption, and they, as in other 
 cases, referred the bonds to the Comptroller for his opinion 
 as to whether the department should pay them. After a 
 favorable report had been given, Mr. Haas had secured a loan 
 from the bank, using the bonds as security. The bonds were 
 accepted, and the money was advanced to him. Later Haas by 
 letter informed the treasury department of his action, and re- 
 quested that the bonds be paid to Huntington as the representa- 
 
 10 According to the decision of this matter, Paschal retained posses- 
 sion of the bonds and moneys in his hands at the time of his dismissal 
 by Davis. During the administration of the latter as governor of 
 Texas, no settlement or compromise of the controversy was effected. 
 Later, in 1874, Governor Coke was empowered to settle with Paschal 
 for the remainder of the debt due him for printing the Supreme Court 
 reports. See Joint Resolution No. 12, Gammel, Laws of Texas, VIII, 
 245-246. 
 
 11 16 Wallace, 402.
 
 Subsequent Litigation 95 
 
 tive of the bank, and the request was complied with. Four- 
 teen other bonds of the thirty-seven were owned by the same 
 man, and the circuitous process of redemption was repeated. 
 The remaining thirteen bonds were the property of Huntington 
 himself. In the interval between the two payments already re- 
 corded, he had purchased these bonds in good faith and for 
 consideration. The first ten bonds had been paid before Texas 
 had entered a protest, and when Huntington bought his bonds, 
 there was, according to his testimony, no protest on file. When 
 he asked for payment, however, there was a complaint from the 
 State. He claimed that he had made the purchase on the belief 
 that his bonds would be paid as had been those of Haas, and 
 that he had taken the precaution to inquire whether there was 
 a protest against such payment. 
 
 The State relied entirely upon the arguments and the decree 
 made in the case of Texas v. White. 12 It was claimed that 
 since the bonds did not bear the indorsement of the governor, 
 the title of the State had not divested, that these bonds were a 
 part of those which had been in the hands of White and Chiles. 
 The defense challenged these facts, and claimed that there was 
 no proof that these bonds had been purchased by the original 
 holders after maturity, nor that the transaction had been other 
 than lawful and innocent. It was argued that the absence of 
 the governor's signature was not proof of the fact that the 
 bonds were a part of those once held by White and Chiles. 
 There had been, it was contended, other bonds issued without 
 this signature, which were then lawfully held by innocent 
 parties. 1:{ The appeal had been taken on the ground that the 
 charge to the jury in the lower court had not left sufficient 
 choice and discretion in deciding this point. 
 
 The opinion was delivered by Chief Justice Chase. The 
 court, in the beginning, considered the question of the effeel 
 of the governor's indorsement, and that of the act repealing 
 the requirement. In the latter connection, the opinion reads: 
 "Bui we have held such a repealing act was absolutely void, 
 
 "Merrick and Duranl were the attorneys for the State. 
 1:1 J. H. Ashton and \V. S. Cox represented Huntington.
 
 96 Texas v. White 
 
 and that the title of the State could in no case be divested." 
 This view the court proceeded to modify to the extent that 
 the act became legal and operative whenever the transference 
 of bonds was made for a legitimate and innocent purpose, such 
 as for the support of eleemosynary institutions, and not in 
 support of the rebellion. In every case where the indorsement 
 was lacking, the validity and legality of the alienation depend- 
 ed upon the legitimacy of the object and purpose of the trans- 
 action. If the purpose was lawful, the transfer was legal and 
 the repealing act valid. With this change of interpretation in 
 mind, the court held that the charge of the lower court was 
 unfair in not allowing sufficient latitude in the judgment of the 
 jury. The decision was, therefore, reversed. 
 
 Texas v. The National Bank of Washington 141 
 
 This was a suit for the possession of nineteen bonds then 
 in the hands of the bank and others, including the cashier, 
 whose names appeared in the bill. It was testified by the 
 comptroller of the treasury, Mr. Tayler, that in his opinion, 
 based upon careful calculation from certain papers in his office, 
 these bonds were a part of those once in the possession of 
 White and Chiles. This was also the opinion of Judge Pas- 
 chal. These men did not, and apparently could not, say 
 definitely, however, that they knew that the bonds had been 
 transferred by the Military Board. The case of the State 
 rested upon this evidence and upon the fact that the bonds 
 were unindorsed. The defense contended that the testimony 
 of Tayler and Paschal was mere opinion and no evidence. 
 It was argued that the absence of the governor's indorsement 
 was not proof of a lack of title on the part of the holder. It 
 was clearly established that certain bonds issued to the South- 
 ern Pacific Railroad, one hundred and forty-eight in number, 
 had not been so indorsed. The State had not been consistent 
 in making this requirement, and some thirteen acts were cited 
 in which the requirement was not even mentioned and ap- 
 
 14 20 Wallace, 72. This also was an appeal from the District of 
 Columbia courts. Decided in 1873.
 
 Subsequent Litigation 97 
 
 parently not observed in the execution of the acts. It was 
 pointed out, furthermore, that no one knew definitely the 
 numbers of the bonds delivered to White and Chiles. 
 
 The opinion of the court was delivered by Justice Miller. 
 The case of the complainants rested upon the assumption that 
 the bonds had once been in the hands of White and Chiles, 
 thus having all the taint attendant upon that fact. In the face 
 of the denial of the accuracy of this allegation by the defen- 
 dants, the court held that Texas must establish it beyond doubt. 
 The court considered that the evidence adduced to prove this 
 contention was of a very unsatisfactory sort, and altogether in- 
 competent for the purpose. "In short," it was said, "the testi- 
 mony on this branch of the subject is an absolute failure." 15 
 
 The opinion of the court presented a very interesting and 
 exceedingly illuminating treatment of the legal effect of the 
 governor's indorsement. Speaking of the entire controversy 
 on this point and of the view taken by Chief Justice Chase, 
 the court said : 
 
 It is true that in the first of these cases the eminent judge who 
 delivered the opinion, in addition to deciding that bonds were 
 overdue when delivered to White and Chiles, and for that 
 reason subject to an inquiry as to the manner in which they 
 had obtained possession of them, gave an additional reason 
 why defendants could not hold them as bona fide purchasers, 
 that they had not been indorsed by the governor as was re- 
 quired by the statute of the State of Texas. . . . All of 
 this, however, was unnecessary to the decision of that case, 
 and the soundness of the proposition may be doubted. 
 
 The celerity with which the finding of the lower court was re- 
 versed very clearly demonstrated that the "proposition" was 
 no longer considered sound. This was a frank admission that 
 Chief Justice Chase had been in error in assigning so much 
 force to the statutory requirement of the governor's signature. 
 The court held that the opinion in the case of Huntington v. 
 Texas governed this controversy. The modification of the 
 earlier views was reaffirmed by the court, and on these grounds 
 
 "20 Wallace, 82. 
 7
 
 98 Texas v. White 
 
 the case was reversed and directions were given for the dis- 
 missal of the bill. 
 
 In an opinion of considerable length and great power of 
 reasoning, Justice Swayne concurred in the decision, but sub- 
 mitted reasons slightly different from those of the majority. 
 He went much farther than the court regarding the effect of 
 the act repealing the requirement of the indorsement of the 
 governor. This act, he said, was an ordinary piece of legis- 
 lation. "If it had in view the promotion of the rebel cause, 
 it was too remote from that end, and its tendency too indirect 
 to render it fatally liable to that objection. The repeal put an 
 end to the restriction." He went on to say that the original 
 law had no legal effect upon the title of the bona fide holder. 
 
 In re CJiiles lc ' 
 This matter was the result of the introduction of a motion 
 in the Supreme Court for a rule on Chiles to show cause why 
 he should not be adjudged guilty of contempt of court for 
 having violated the decree in the case of Texas v. White. The 
 decree, it will be remembered, had enjoined the defendants 
 from making any claim to the bonds mentioned in the bill in 
 that suit. It will also be recalled that there were two sets of 
 bonds mentioned in the original bill, namely, those actually 
 turned over to White and Chiles by the Military Board and 
 those which were in England in the possession of the firm of 
 Droege & Company. Of this last group, the bill had referred to 
 the seventy-six bonds which were sold to White and Chiles ac- 
 cording to the contract. Chiles had not relinquished his claim to 
 these bonds although it seemed to have been invalidated by the 
 decision in Texas v. White. He had, at several times, notified 
 Droege & Company of his ownership, and had stated his in- 
 tention of reclaiming them by legal measures in the English 
 courts. Finally, on July 17, 1874, he wrote to this firm, re- 
 peating the statement of his right to the seventy-six bonds, and 
 asserting his intention of instituting an injunction suit to pre- 
 vent the disposal of them to any other party. When this letter 
 became known, the Texas agent appeared before the Supreme 
 
 ; 22 Wallace, 157.
 
 Subsequent Litigation 99 
 
 Court and made the motion already noticed. In answer to the 
 charges therein preferred against him, Chiles admitted that he 
 had made the claim of ownership, and stated, furthermore, 
 that he intended to secure his rights by legal measures. He 
 denied, however, that he was guilty of any contempt of court, 
 or that he was endeavoring to nullify and thwart the injunc- 
 tion imposed upon him by the court in the earlier case. On the 
 contrary, he maintained that his assertion of right to the bonds 
 was based upon grounds other than those denounced in the 
 decree. His present claim was founded on a contract made 
 with the Military Board on March 4, 1865, — a contract which 
 was separate and distinct from that made previously to which 
 White and Chiles had been parties on one side. In the later 
 contract, Chiles had not been associated with White. The 
 decree had annulled the contract between the board and White 
 and Chiles, but it had had no effect upon the later one, for 
 the court could not impeach a contract which had not been 
 mentioned in the bill. The second contract, moreover, was 
 not operative until the first had been vacated or annulled ; the 
 decree having declared the first contract void, the other be- 
 came effective. As to the idea that Chiles was in contempt of 
 court, the defense argued that the law of injunctions was not 
 framed to prevent a person from claiming property either oral- 
 ly or in writing. The decree in Texas v. White had called 
 into active life, the contract of March 4, which had hitherto 
 been in abeyance, and Chiles had made known his rights under 
 it, — a fact which had no necessary bearing upon the decree. 
 It was then denied that the court had the right to pass upon 
 money or bonds held by a foreign subject and located in a 
 foreign country. 
 
 Messrs. Merrick and Durant for the complainant charged 
 that Chiles was striving to overthrow the decision in Texas v. 
 White, that he was preventing the State from deriving the just 
 benefits of that victory, and that he was violating the decree. 
 They demanded that the court should order Chiles to cease his 
 illegal practices, and that lie should be constrained to conve) 
 to the State in writing whatever claim he might have I" the 
 bonds.
 
 100 Texas v. White 
 
 Mr. Justice Miller delivered the opinion of the court. "It 
 would be to trifle," said the justice, "with the court to make a 
 proceeding in equity, designed to give full and final relief and 
 to administer complete justice, to depend upon the skill and 
 jugglery by which a defendant might conceal some part of his 
 defense to that suit until it was decided against him, and set it 
 up as an excuse for disobeying the final decree of the court, 
 or hold it out as the basis of another suit for the title and 
 possession of the same bonds." The existence of a new con- 
 tract was, therefore, an unsubstantial basis for the claim. 
 
 The court held that the decree was plain. It had declared 
 the contract conveying the bonds to White and Chiles void, 
 and had enjoined them from setting up any claim to the bonds 
 mentioned. The assertion of claim was not limited to legal 
 action, and, consequently, Chiles was again in error. The 
 court, therefore, declined to be governed by the fine distinc- 
 tions which the counsel for Chiles had sought to draw from 
 the law of injunctions. The decree was intended to prevent 
 any further interference with the rights of Texas and any ob- 
 struction to the recovery of the bonds specified in the bill. 
 
 The court decided that the holders of bonds in the United 
 States could be forced to restore them to the State of Texas, 
 but this was as far as the court's assistance could extend. 
 The court could enjoin a domestic holder from setting up a 
 claim to bonds deposited in a foreign country. This Chiles, in 
 defiance of the spirit and intent of the decree, had done, and 
 the court considered him to be in contempt of its authority. 
 For this offense, he was fined $250 and costs. The court de- 
 clined to order him to make over his claim to the State of 
 Texas. 17 
 
 17 This is one of the most famous contempt cases, and has been 
 cited repeatedly for precedent. For another interesting case arising 
 out of the controversy over the Texas indemnity bonds and in which 
 Chiles was involved, see 21 Wallace, 488. The Supreme Court later, 
 in the interesting case of United States v. Morgan (Morgan and 
 Another v. United States; United States v. Manhattan Savings Insti- 
 tute; von Hoffman and Another v. United States) had occasion to re- 
 view some of the leading points of law involved in Texas v. White and 
 the other cases mentioned in this chapter. See 113 U. S., 476-506.
 
 CHAPTER V 
 
 BIBLIOGRAPHY 
 
 I. Primary Sources and Documents: 
 United States Supreme Court Reports. 
 
 Texas Supreme Court Reports, especially 25 Texas (Sup- 
 plement ) . 
 
 Congressional Globe. 
 
 File Copy of Briefs, United States Supreme Court, 1868- 
 1876. 
 
 Gammel, Laws of Texas. 
 
 Opinions of the Attorney-Generals of the United States. 
 
 Official Records of the Union and Confederate Armies and 
 Navies in the War of the Rebellion. 
 
 Paschal, G. W., Digest of the Laws of Texas, 1870. 
 
 Records of the Supreme Court. 
 
 Reports of the Texas Comptroller of Public Accounts, 
 1850-1878. 
 
 Reports of the United States Comptroller of the Treasury. 
 
 Richardson, J. D., Messages and Papers of the Presidents 
 (10 vols.) 1896-97. 
 
 The Federalist (Lodge, Ed.), 1889. 
 
 United States Executive Documents. 
 
 United States Statutes at Large. 
 
 II. Works on Texas History : 
 
 Garrison, George P., Texas: A Contest of Civilization 
 (American Commonwealth Series). 1903. 
 
 , Westivard Extension (American Nation 
 
 Series, XVII), 1906. 
 
 Gouge, W. M., Fiscal History of Texas. 1852. 
 
 Lubbock, F. R., Six Decades in Texas. 1900. 
 
 Ramsdell, C. W., Reconstruction in Texas. 1910. 
 
 Smith, Justin S., Annexation of Texas. 1911. 
 
 Southwestern Historical Quarterly. 
 
 Wooten, D. G. (Editor), A Comprehensive History of 
 Texas. (2 vols.) 1899.
 
 102 Texas v. White 
 
 III. Works on Constitutional Law : 
 
 Cooley, T. M., Constitutional History of the United States 
 as seen in the Development of American Lazv. 1899. 
 
 , Constitutional Law. 
 
 , A Treatise on the Constitutional Limitations 
 
 which rest upon the Legislative Power of the States of the 
 American Union. (3rd ed.) 1890. 
 
 McClain, Emlin, Cases on Constitutional Law. 1909. 
 
 Story, J., Commentaries. 1833. 
 
 Thayer, J. B., Cases on Constitutional Lazv. (3 vols.) 
 1894-5. 
 
 Thorpe, F. N., Constitutional History of the United States. 
 (3 vols.) 1901. 
 
 Willoughby, W. W., The Constitutional Lazv of the United 
 States. (2 vols.) 1910. 
 
 , The American Constitutional System. 1904. 
 
 , An Examination of the Nature of the State 
 
 (rev. ed.) 1903. 
 
 IV. General : 
 
 Beard, C. A., American Government and Politics (rev. ed). 
 1914. 
 
 Blaine, J. G., Twenty Years of Congress. (2 vols.) 1884- 
 1886. 
 
 Brownson, O. A., The American Republic. 1866. 
 
 Burgess, J. W., Middle Period, 1817-1858. (American 
 History Series, vol. IV). 1901. 
 
 , Reconstruction and the Constitution, 1866- 
 
 76. (American History Series, vol. VII). 1909. 
 
 , Political Science and Constitutional Law. (2 
 
 vols.) 1890. 
 
 , The American Commonwealth. {Political 
 
 Science Quarterly, vol. 1.) 1886. 
 
 Calhoun, John C, Works. (Edited by R. K. Cralle. 6 
 vols.) 1853-1855. 
 
 Dunning, W. A., Bssays on the Civil War and Reconstruc- 
 tion (rev. ed.) 1904.
 
 Bibliography 103 
 
 , Reconstruction : Political and Economic. 
 
 (American Nation Series, Vol. 22) 1907. 
 
 Fleming, W. L., Documentary History of Reconstruction. 
 (2 vols.) 1906-07. 
 
 Garner, J. W., Introduction to Political Science. 1910. 
 
 Hart, A. B., Salmon P. Chase. (American Statesman 
 Series, vol. 28). 1899. 
 
 Hurd, J. C, Law of Freedom and Bondage. (2 vols.) 
 1858-1862. 
 
 , The Theory of our National Existence, as 
 
 Shoivn by the Action of the Government of the United States 
 Since 1861. 1881. 
 
 Lincoln, Abraham, Works. (Edited by John G. Nicolay 
 and John Hay. 2 vols.) 1902. 
 
 Lowell, A. L., Essays on Government. 1892. 
 
 Johnson, B. T., The Chase Decisions. 1876. 
 
 Madison, James, Works. (Edited by Gaillard Hunt. 11 
 vols.) 1900-1910. 
 
 McCarthy, C. H., Lincoln's Plan of Reconstruction. 1901. 
 
 Merriam, C. E., A History of American Political Theories. 
 1903. 
 
 Rhodes, J. F., History of the United States Since the Con- 
 promise of 1850. (7 vols.) 1896-1906. 
 
 The South in the Buildi)ig of the Nation. (13 vols.) 
 1909-13. 
 
 Webster, Daniel, Works. (Edited by J. W. Mclntire. 18 
 vols.) 1903. 
 
 Wilson, W., An Old Master and Other Essays. 1893. 
 
 V. Newspapkks and Contemporary Literature: 
 
 American Annual Cyclopedia, 1868-1876. 
 
 The New York Herald. 
 
 The New York Times. 
 
 The New York Tribune. 
 
 The New York World. 
 
 The Tozvnsend Library of Columbia University, (Vol. 61). 
 
 Texas Annexation Pamphlets, in Columbia University 
 Library.
 
 VITA 
 
 William Whatley Pierson, Jr., was born at Brundidge, 
 Alabama, November 30, 1890. His educational record was 
 as follows : B. Ph., State Normal College, Troy, Alabama, 
 1908; A. B., University of Alabama, 1910; A. M., Ibid., 1911 ; 
 A. M., Columbia University, 1912. In 1910-1911 he was teach- 
 ing fellow in English at the University of Alabama, and from 
 1911 to 1913 he was a graduate student at Columbia Univer- 
 sity in American and Modern European History and Econom- 
 ics. He had courses under Professors Dunning, Osgood, 
 Shepherd, Shotwell, Sloane, Moore, Seligman, Seager, and 
 Simkhovitch and attended seminar in American History under 
 Professor Dunning. In 1914-1915 he was assistant in History 
 and instructor in Extension Teaching at Columbia University, 
 and in 1915-1916 he was instructor in History at the Uni- 
 versity of North Carolina.
 
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