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Under this authority the military board entered into an agreement with George W. White and John Chiles, two of the defendants, for the sale to them of one hundred and thirty-five of these bonds, then in the treasury of the State, ani seventy-six more, then deposited with Droege & Co., in England, in payment for which they engaged to deliver to the board a large quantity of cotton cards and medicines. This agreement was made on the 12th of January, 1865.
On the 12th of March, 1865, White and Chiles received from the military boerd one hundred and thirty-five of these bonds, none of which were indorsed by any governor of Texas.
Afterward, in the course of the years 1865 and 1866, some of the same bonds came into the possession of others of the defendants by purchase, or as security for advances of money.
Such is a brief outline of the case. It will be necessary hereafter to refer more in detail to some particular circumstances of it.
The first inquiries to which our attention was directed by counsel arose upon the allegations of the answer of Chiles, (1), that no sufficient authority is shown for the prosecution of the suit in the name and on the behalf of the State of Texas; and, (2), that the State, having severed her relations with a majority of the States of the Union, and having by her ordinance of secession attempted to throw off her allegiance to the Constitution and Government of the United States, has so far changed her status as to be disabled from prosecuting suits in the national courts.
The first of these allegations is disproved by the evidence. A letter of authority, the authenticity of which is not disputed, has been produced, in which J. W. Throck morton, elected governor under the Constitution adopted in 1866, and proceeding under an Act of the State legislature relating to these bonds, expressly ratifies and confirms the action of the solicitors who filed the bill, and empowers them to prose cute this suit; and it is further proved by the affidavit of Mr. Paschal, counsel for the complainant, that he was duly appointed by Andrew J. Hamilton, while provisional governor of Texas, to represent the State of Texas in reference to the bonds in controversy, and that his appointment has been renewed by E. M. Pease, the actual governor. If Texas was a State of the Union at the time of these acts, and these persons, or either of them, were competent to represent the State, this proof leares no doubt upon the question of authority.
The other allegation presents a question of jurisdiction. It is not to be questioned that this court has original jurisdiction of suits by States against citizens of other States, or that the States entitled to invoke this jurisdiction must be States of the Union. But it is equally clear that no such jurisdiction has been conferred upon this court of suits by any other political communities than such States.
If, therefore, it is true that the State of Texas was not at the time of filing this bill, or is not now, one of the United States, we have no jurisdiction of this suit, and it is our duty to dismiss it.
We are very sensible of the magnitude and importance of this question, of the interest it excites, and of the difficulty, not to say impossibility, of so disposing of it as to satisfy the conflicting judgments of men equally enlightened, equally upright, and equally patriotic. But we meet it in the case, and we must determine it in the exercise of our best judgment, under the guidance of the Constitution alone.
Some not unimportant aid, however, in ascertaining the true sense of the Constitution, may be derived from considering what is the correct idea of a State, apart from any union or confederation with other States. The poverty of language often compels the employment of terms in quite different significations; and of this hardly any example more signal is to be found than in the use of the word we are now considering. It would serve no useful purpose to attempt an enumeration of all the various senses in which it is used. A few only need be noticed.
It describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country, or territorial region, inhabited by such a community ; not unfrequently it is applied to the government under which the people live; at other times it represents the combined idea of people, territory, and government.
It is not difficult to see that in all these senses the primary conception is that of a people or community. The people, in whatever territory dwelling, either temporarily or permanently, and whether organized under a regular government, or united by looser and less definite relations, constitute the State.
This is undoubtedly the fundamental idea upon which the republican institutions of our own country are established. It was stated very clearly by an eminent judge l in one of the earliest cases adjudicated by this court, and we are not aware of any thing in any subsequent decision of a different tenor.
In the Constitution, the term State most frequently expresses the combined idea just noticed of people, territory, and government. A State, in the ordinary sense of the Constitution, is a political community of free citizens occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such States under a common Constitution which forms the distinct and greater political unit which that Constitution designates as the United States, and makes of the people and States which compose it one people and one country.
The use of the word in this sense hardly requires further remark. In the clauses which impose prohibitions upon the States in respect to the making of treaties, emitting of bills of credit, and laying duties of tonnage, and which guarantee to the States representation in the House of Representatives and in the Senate, are found some instances of this use in the Constitution. Others will occur to every mind.
But it is also used in its geographical sense, as in the clauses which require that a representative in Congress shall be an inhabitant of the State in which he shall be chosen, and that the trial of crimes shall be held within the State where committed.
And there are instances in which the principal sense of the word seems to be that primary one to which we have rted, of a people or political community, as distinguished from a government.
In this latter sense the word seems to be used in the clause which provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion.
In this clause a plain distinction is made between a State and the government of a State.
Having thus ascertained the senses in which the word State is employed in the Constitution, we will proceed to consider the proper application of what has been said.
The republic of Texas was admitted into the Union as a State on the 27th of December, 1845. By this act the new State, and the people of the New State, were invested with all the rights, and became subject to all the responsibilities and duties, of the original States under the Constituțion.
From the date of admission until 1861, the State was represented in the Congress of the United States by her Senators and Representatives, and her relations as a
1 Mr. Justice Paterson, in Penhallow v. Doane's Adm'rs, 3 Dall. 54, 93.
member of the Union remained unimpaired. In that year, acting upon the theory that the rights of a State under the Constitution might be renounced, and her obliga tions thrown off at pleasure, Texas undertook to sever the bond thus formed, and to break up her constitutional relations with the United States.
On the first of February 1 a convention, called without authority, but subsequently sanctioned by the legislature regularly elected, adopted an ordinance to dissolve the union between the State of Texas and the other States under the Constitution of the United States, whereby.Texas was declared to be “a separate and sovereign State," and “her people and citizens” to be “absolved from all allegiance to the United States, or the government thereof."
It was ordered, by a vote of the convention 2 and by an act of the legislature, 3 that this ordinance should be submitted to the people, for approval or disapproval, on the 23d of February, 1861.
Without awaiting, however, the decision thus invoked, the convention, on the 4th of February, adopted a resolution designating seven delegates to represent the State in the convention of seceding States at Montgomery, “in order," as the resolution declared, “ that the wishes and interests of the people of Texas may be consulted in reference to the constitution and provisional government that may be established by said convention.”
Before the passage of this resolution, the convention had appointed a committee of public safety, and adopted an ordinance, giving authority to that committee to take measures for obtaining possession of the property of the United States in Texas, and for removing the national troops from her limits. The members of the committee, and all officers and agents appointed, or employed by it, were sworn to secrecy and to allegiance to the State.4 Commissioners were at once appointed with instructions to repair to the head-quarters of General Twiggs, then representing the United States in command of the department, and to make the demands necessary for the accomplishment of the purposes of the committee. A military force was organized in support of these demands, and an arrangement was effected, with the commanding general, by which the United States troops were engaged to leave the State, and the forts and all the public property, not necessary to the removal of the troops, were surrendered to the commissioners.5
These transactions took place between the 2d and the 18th of February, and it was under these circumstances that the vote upon the ratification or rejection of the Ordinance of Secession was taken on the 23d of February. It was ratified by a majority of the voters of the State.
The convention, which had adjourned before the vote was taken, reassembled on the 2d of March, and instructed the delegates, already sent to the Congress of the seceding States, to apply for admission into the confederation, and to give the adhesion of Texas to its provisional constitution.
It proceeded, also, to make the changes in the State constitution, which this adhesion made necessary. The words “ United States” were stricken out wherever they occurred, and the words “ Confederate States " substituted; and the members of the legislature, and all officers of the State, were required by the new constitution to take an oath of fidelity to the constitution and laws of the new confederacy.
Before, indeed, these changes in the constitution had been completed, the officers of the State had been required to appear before the committee, and take an oath of allegiance to the Confederate States.
i Paschal's Digest Laws of Texas, 78. 2 Paschal's Digest, 80. 8 Laws of Texas,.1869–1861, p. 11. 4 Paschal's Digest, 80. 5 Texan Reports of the Committee (Lib. of Con.), p. 45.
The Governor and Secretary of State, refusing to comply, were summarily ejected from office.
The members of the legislature, which had also adjourned and reassembled on the 18th of March, were more compliant. They took the oath, and proceeded, on the 8th of April, to provide, by law, for the choice of electors of President and Vice-President of the Confederate States.
The representatives of the State in the Congress of the United States were withdrawn, and, as soon as the seceded States became organized under a constitution, Texas sent senators and representatives to the Confederate Congress.
In all respects, so far as the object could be accomplished by 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 a new government were established for them.
The position thus assumed could only be maintained by arms, and Texas accordingly took part, with the other Confederate States, in the war of the Rebellion, which these events made inevitable. During the whole of that war, there was no governor, or judge, or any other State officer, in Texas, who recognized the national authority. Nor was any officer of the United States permitted to exercise any authority whatever under the National Government within the limits of the State, except under the immediate protection of the national military forces.
Did Texas, in consequence of these acts, cease to be a State ? Or, if not, did the State cease to be a member of the Union ?
It is needless to discuss, at length, the question whether the right of a State to withdraw from the Union for any cause, regarded by herself as sufficient, is consistent with the Constitution of the United States.
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 geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. 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?
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 respectively, or to the people. And we have already had occasion to remark, at this term, that “the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence ;” and that, “ without the States in Union, there could be no such political body as the United States. "1 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 be not 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, in all its provisions, looks to an indestructible Union, composed of indestructible States.
1 County of Lane v. The State of Oregon.
When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpet Union, and all the guaranties of republican government in the Union, attached at once to the State. The act, which consummated her admission into the Union, was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble, as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.
Considered, therefore, as transactions under the Constitution, the Ordinance of Secession adopted by the convention, and ratified by a majority of the citizens of Texas, and all the acts of her legislature, intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United 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 must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.
Our conclusion, therefore, is, that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any act or declaration of any department of the National Government, but entirely in accordance with the whole series of such acts and declarations since the first outbreak of the Rebellion.
But in order to the exercise, by a State, of the right to sue in this court, there needs to be a State government, competent to represent the State, in its relations with the National Government, so far, at least, as the institution and prosecution of a suit is concerned.
And it is by no means a logical conclusion, from the premises which we have endeavored to establish, that the governmental relations of Texas to the Union remained unaltered. Obligations often remain unimpaired, while relations are greatly changed. 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 nought. And the same must necessarily be true of the obligations and relations of States and citizens to the Union. No one has been bold enough to contend that, while Texas was controlled by a government hostile to the United States, and in affiliation with a hostile confederation, waging war upon the United States, Senators chosen by her legislature, or representatives elected by her citizens, were entitled to seats in Congress; or that any suit instituted in her name, could be entertained in this court. All admit that during this condition of civil war, the rights of the State as : member, and of her people as citizens of the Union, were suspended. The government and the citizens of the State, refusing to recognize their constitutional obliga. tions, assumed the character of enemies, and incurred the consequences of rebellion.
These new relations imposed new duties upon the United States. The first was that of suppressing the Rebellion. The next was that of re-establishing the broken relations of the State with the Union. The first of these duties having been performed, the next necessarily engaged the attention of the National Government.
The authority for the performance of the first had been found in the power to sup