UNITED STATES. 



699 



as a conquered province by military force ? The act 

 of Congress of March 28, 1867, declares Texas to be 

 a "rebel State," and provides for its government 

 until a legal and republican State government could 

 be legally established. It constituted Louisiana and 

 Texas the Fifth Military District, and made it sub- 

 ject, not to the civil authority, but to the "military 

 authorities of the United States." 



It is true that no organized rebellion now exists 

 there, and the courts of the United States now exer- 

 cise jurisdiction over the people of that province. 

 But this is no test of the State's being in the Union : 

 Dakota is no State } and yet the courts of the United 

 States administer justice there as they do in Texas. 

 The Indian tribes } who are governed by military 

 force, cannot claim to be States of the Union. 

 Wherein does the condition of Texas differ from 

 theirs? 



Now, by assuming or admitting as a fact the 

 present status of Texas as a State not in the Union 

 politically^ I beg leave to protest against any charge 

 of inconsistency as to judicial opinions heretofore 

 expressed as a member of this court or silently 

 assented to. I do not consider myself bound to ex- 

 press any opinion judicially as to the constitutional 

 right of Texas to exercise the rights and privileges 

 of a State of this Union, or the power of Congress 

 to govern her as a conquered province, to subject her 

 to military domination, and keep her in pupilage. I 

 can only submit to the fact as decided by the politi- 

 cal position of the Government : and I am not dis- 

 posed to join in any essay of judicial subtlety to 

 prove Texas to be a State of the Union, when Con- 

 gress 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 rightfully out 

 of it or not is a question not before the court, and I 

 am not called on to confute a fact with syllogisms. 



An important decision to the Southern States 

 was rendered by the same court during the 

 year, on the subject of the paper-money issued 

 by the Confederate States. The suit was brought 

 for the recovery of a mortgage-note with ven- 

 dor's lien given for the purchase of lands in 

 Alabama in 1864. The defence was, that the 

 contract was made within the insurgent States, 

 during a rebellion, and for Confederate treas- 

 ury notes, unlawfully issued by a usurping gov- 

 ernment, and that no such contract can be 

 enforced in the courts of the United States. 



The court examined these questions afc length, 

 and decided : 



That the Confederate government was a 

 de facto government of the second degree. The 

 first degree represents such governments as 

 that of England under the Commonwealth, 

 and France under the Eepublic, which are 

 denied by other governments to exist dejure, 

 but are dealt with as existing facts. 



The Confederate government was never so 

 recognized by the United States Government. 

 It was held to be a temporary military domin- 

 ion over territory in which the lawful author- 

 ity was entirely suspended. On this ground, 

 the rights of belligerency were conceded to its 

 military character. The lawful supremacy of 

 the United States being excluded by military 

 combinations, the substituted supremacy, while 

 it existed, must be conceded to be that of a 

 government de facto of this secondary class. 

 Civil obedience to its authority, while it lasted, 

 "was not only a necessity, but a duty." It 



must be left to the lawful Government, when 

 reestablished, to decide how far this obedience 

 to the powers that be, in positive acts of hos- 

 tility to the Government of the United States, 

 can be excused by circumstances. 



In other respects, the court ruled that the 

 people in the insurgent States, under the Con- 

 federate government, were, in legal contempla- 

 tion, substantially in the same condition as in- 

 habitants of districts of. country occupied and 

 controlled by an invading belligerent. 



They " must be regarded as under the authority of 

 the insurgent belligerent power actually established 

 as the government of the country; and contracts made 

 with them must be interpreted arid inferred with ref- 

 erence to the condition of things created by the acts 

 of the governing power." 



As to the amount which the plaintiff could 

 recover, the conclusion was, that he could only 

 receive the value of the Confederate notes at 

 the date of the transaction, in lawful money 

 of the United States. 



The question whether the obligations of the 

 United States, known as certificates of indebt- 

 edness, were liable to be taxed by State legis- 

 lation, was also decided hy the same court. 

 The Chief Justice, on delivering the opinion of 

 the court, said : 



The principle of exemption is, that the States can- 

 not control the national Government witMnthe sphere 

 of its constitutional power 2 for there it is supreme, 

 and cannot tax its obligations for the payment of 

 money issued for purposes within that range of pow- 

 ers, because such taxation necessarily implies the 

 assertion of the right to exercise such control. The 

 certificates of indebtedness in the case before us are 

 completely within the protection of this principle. 



The question whether United States notes 

 come under another rule, in respect to taxa- 

 tion, than that which applies to certificates of 

 indebtedness, was also considered by the court. 

 The Chief Justice said: 



We think it clearlv within the discretion of Con- 

 gress to determine whether, in view of all the circum- 

 stances attending the issue of the notes, their useful- 

 ness as a means of carrying on the Government would 

 be enhanced by exemption from taxation, and within 

 the constitutional power of Congress, having resolved 

 the question of usefulness affirmatively, to provide 

 by law for such exemption. There remains, then, 

 only this question : Has Congress exercised the 

 power of exemption? A careful examination of the 

 acts under which they were issued has left no doubt 

 in our minds upon that point. 



Another important national question that 

 came before the courts was, whether the clause, 

 making United States notes a legal tender,, had 

 reference to State taxes ? 



The Chief Justice, on delivering the opinion 

 of the court, concludes thus : 



In whatever light, therefore, we consider this ques- 

 ion, whether in the light of the conflict between the 



tion 



legislation of Congress and the taxing-power of the 

 States, to which the interpretation insisted on in be- 

 half of the plaintiff in error would give occasion, or 

 in the light of the language of the acts themselves, 

 or in the light of the decisions to which we have re- 

 ferred, we find ourselves brought to the same conclu- 

 sion, that the clause making United States notes a 

 legal tender for debts has no reference to taxes im- 

 posed by State authority, but relates only to debts, 



