TENNESSEE. 



785 



of which the Court could take judicial cogni- 

 zance. From this conclusion Chief Justice 

 Waite and Justices Harlan and Bradley dis- 

 sented. The plaintiff contended that " each of 

 " ordinances of se- 

 Confederate 



, T ho P r i nci Plo stated in this proposition, if tho 



separate themselves from the Federal Govern- 

 ment that, during the period in which the 

 rebellion maintained its organization, those 

 States were in fact no longer a part of the 

 Union, or, if so, the individual States, by reason 

 of their attitude, were mere usurping powers, 

 all of whose acts of legislation or administra- 

 tion are void, except as they are ratified by 

 positive law enacted since the restoration, or 

 are recognized as valid, on the principles of 

 comity or sufferance." In answer to this, Mr. 



i.-- 



-i ii ' * .* ' *** v <IIM tuu war (/I rC~ 



bellion, or give aid and comfort to tho eneroiea of 

 the United States in the prosecution of that war is 



a Vflhrl nrnmi . u roug()n Qf ^ ^ 



There is, however, in the case before us, nothing 

 to warrant the conclusion that these notes were isnued 

 for the purpose of aiding the rebellion, or in viola- 

 >t the laws or the Constitution of the United 



tried the case. The sole matter stated . u UUJ 

 either by facts found in the bill of exceptions, 

 the decree of the Court, is that the bills - 



the Court, said : 



We can not agree to this doctrine, 

 by the inherent powers which attach 

 ganized political society possessed of tne ng_ 

 self-government. It is opposed to the well-oonsid 

 ered decisions of this Court. . . . government, a reason which we have already demon- 



The political society which in 1796 became a State grated to be unsound. Not only is there nothing 

 of the Union, by the name of the State of Tennessee M 1 th ? ^ ons titution or laws of Tennessee to pro\e 

 :. *i T.S.I. : that these notes were issued in support of the rebel- 



lion, but there is nothing known to us in public hie>- 

 tory which leads to this conclusion. The opinion of 



stitution of 1865, declaring them void. The provi- 

 It is opposed sion * tb ; e State Constitution does not go upon the 

 5h to every or- ro , un ? that the State bonds and bank notes; which 

 of the right of 'V Declared to be invalid, were issued in aid of the 

 rebellion, but that they were issued by a usurping 



orrivprnmnrf o **/KI ^ /. ., rUC~l. .,. L. _i* i i * * 



is the same which is now represented as one of those 

 in the Congress of the United States. Not only is 

 it the same body politic now, but it has always been 



the same. There has been perpetual succession and Supreme Court, which we have already cited, 



perpetual identity. There has, from that time, al- f tat . es that the bank was engaged in a legitimate 



ways been a State of Tennessee, and the same State busmess L at tms time, receiving deposits, and otlier- 



of Tennessee. Its executive, its legislative its iu- W1 ^ e P ertormm g the functions of a bauk ; and though, 



dicial departments have continued without inter- as 1S *&^<*any evident, willing to repudiate these 



ruption and in regular order. It has changed, modi- no ? e8 a8 ,. receivable for taxes, that Court held th m 



fled, and reconstructed its organic law, or State Con- be va ! ] d 1 , ssues of the ba nk, in the teeth of the or- 



stitution, more than once. It has done this before dl ? ance declaring them void. 



the rebellion, during the rebellion, and since the re- * Ifc 1S 8a i. d ' howev e r i that considering the revolu- 



bellion. And it was always done by the collective tj onarv character of the State government at that 



authority and in the name of the same body of peo- ' we must P re sume that these not t :s were issued 



pie constituting the political society known as the fc o support the rebellion. 



State of Tennessee But whl le we have the Supreme Court of Tennes- 



. 



see holding that the bank during this time was doing 

 a legitimate banking business, we have no evidence 

 whatever that these notes were issued under any 

 eW law * W government, or by any inter- 



This political body has not only been all this time 

 a State and the same State, but it has always been 

 one of the United States a State of the Union. Un- 

 der the Constitution of the United States, by virtue t , ---,-- _ j 



of which Tennessee was born into the family of fere nce of its officers, or that they were in any man- 

 States, she had no lawful power to depart from that ner used .t support the State government. If this 



Union! The effort which she made to do so, if it 



had been successful, would have been so in spite of 

 the Constitution, by reason of that force which, in 



were so, it would still remain that the State govern- 

 ment was necessary to the good order of society, and 

 that in its proper functions it was right that it should 

 be supported. 



struction of that Constitution. Failing to do this, 

 the State remained a State of the Union. She never 

 escaped the obligations of that Constitution, though, 

 for a while, she may have evaded their enforcement. 

 It would seem to follow, that if the State of 

 Tennessee has through all these transactions been 

 the same State, and has been also a State of the 

 Union, and subject to the obligations of the Consti- 

 tution of the Union, the contract which she made in 

 1838, to take for her taxes all the issues of the bank 

 of her own creation, and of which she was sole stock- 

 holder and owner, was a contract which bound her 

 during the rebellion, and which the Constitution 

 protected then and now, as well as before. 



In considering the proposition that " the 



notes on which the action was brought had 



been issued in aid of the rebellion, to support 



the insurrection against the lawful authority 



VOL. xviii. 50 A 



sier than to plead it and provi 

 a plea is presented, we can, if it comes to us, pass 

 intelligently on its validity. If such is taken, the 

 facts can be embodied in a bill of exceptions or some 

 other form, and we can say whether those facts ren- 

 der the contract void. To undertake to assume the 

 facts which are necessary to their invalidity on this 

 record is to give to conjecture the place of proof, and 

 to rest a judgment of the utmost importance on the 

 existence of facts not found in the record, nor proved 

 by any evidence of which this Court can take judicial 

 notice. We shall, when the matter is presented prop- 

 erly to us, be free to determine, on all considerations 

 applicable to the case, whether the notes that may 

 be then in controversy are protected by the provision 

 of the Constitution or not. And that is the onk 

 question of which, in a case like the present, we 

 would have jurisdiction. 



The judgment of the Supreme Court of Tennesso* 

 is, therefore, reversed, and the case remanded to 



