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Texas v. White/Opinion of the Court

The CHIEF JUSTICE delivered the opinion of the court.

This is an original suit in this court, in which the State of Texas, claiming certain bonds of the United States as her property, asks an injunction to restrain the defendants from receiving payment from the National government, and to compel the surrender of the bonds to the State.

It appears from the bill, answers, and proofs, that the United States, by act of September 9, 1850, offered to the State of Texas, in compensation for her claims connected with the settlement of her boundary, $10,000,000 in five per cent. bonds, each for the sum of $1000; and that this offer was accepted by Texas. One-half of these bonds were retained for certain purposes in the National treasury, and the other half were delivered to the State. The bonds thus delivered [p718] livered were dated January 1, 1851, and were all made payable to the State of Texas, or bearer, and redeemable after the 31st day of December, 1864. They were received in behalf of the State by the comptroller of public accounts, under authority of an act of the legislature, which, besides giving that authority, provided that no bond should be available in the hands of any holder until after indorsement by the governor of the State.

After the breaking out of the rebellion, the insurgent legislature of Texas, on the 11th of January, 1862, repealed the act requiring the indorsement of the governor, and on the same day provided for the organization of a military board, composed of the governor, comptroller, and treasurer; and authorized a majority of that board to provide for the defence of the State by means of any bonds in the treasury, upon any account, to the extent of $1,000,000. The defence contemplated by the act was to be made against the United States by war. 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, and 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 board 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 [p719] 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. Throckmorton, 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 prosecute 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 leaves 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 he 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.

[p720] 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, in one of the earliest cases adjudicated by this court, and we are not aware of anything, in any subsequent decision, of a different tenor.

[p721] 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 adverted, 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.

[p722] 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 Constitution.

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 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 obligations 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 1st of February, 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 and by an act of the legislature, 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 [p723] 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. Commissioners were at once appointed, with instructions to repair to the headquarters 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 orgnaized 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.

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 [p724] completed, the officers of the State had been required to appear before the committee and take an oath of allegiance to the Confederate States.

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 amintained 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 consecuence 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 [p725] 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 cthe 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." 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.

[p726] When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual 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 [p727] governmet, so far as 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 a 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 obligations, 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 suppress insurrection and carry on war; for the performance of the second, authority was derived from the obligation of the United States to guarantee to every State in the Union a republican form of government. [p728] The latter, indeed, in the case of a rebellion which involves the government of a State, and for the time excludes the National authority from its limits, seems to be a necessary complement to the former.

Of this, the case of Texas furnishes a striking illustration. When the war closed there was no government in the State except that which had been organized for the purpose of waging war against the United States. That government immediately disappeared. The chief functionaries left the State. Many of the subordinate officials followed their example. Legal responsibilities were annulled or greatly impaired. It was inevitable that great confusion should prevail. If order was maintained, it was where the good sense and virtue of the citizens gave support to local acting magistrates, or supplied more directly the needful restraints.

A great social change increased the difficulty of the situation. Slaves, in the insurgent States, with certain local exceptions, had been declared free by the Proclamation of Emancipation; and whatever questions might be made as to the effect of that act, under the Constitution, it was clear, from the beginning, that its practical operation, in connection with legislative acts of like tendency, must be complete enfranchisement. Wherever the National forces obtained control, the slaves became freemen. Support to the acts of Congress and the proclamation of the President, concerning slaves, was made a condition of amnesty by President Lincoln, in December, 1863, and by President Johnson in May, 1865. And emancipation was confirmed, rather than ordained, in the insurgent States, by the amendment to the Constitution prohibiting slavery throughout the Union, which was proposed by Congress in February, 1865, and ratified, before the close of the following autumn, by the requisite three-fourths of the States.

The new freemen necessarily became part of the people, and the people still constituted the State; for States, like individuals, retain their identity, though changed to some [p729] extent in their constituent elements. And it was the State, thus constituted, which was now entitled to the benefit of the constitutional guaranty.

There being then no government in Texas in constitutional relations with the Union, it became the duty of the United States to provide for the restoration of such a government. But the restoration of the government which existed before the rebellion, without a new election of officers, was obviously impossible; and before any such election could be properly held, it was necessary that the old constitution should receive such amendments as would conform its provisions to the new conditions created by emancipation, and afford adequate security to the people of the State.

In the exercise of the power conferred by the guaranty clause, as in the exercise of every other constitutional power, a discretion in the choice of means is necessarily allowed. It is essential only that the means must be necessary and proper for carrying into execution the power conferred, through the restoration of the State to its constitutional relations, under a republican form of government, and that no acts be done, and no authority exerted, which is either prohibited or unsanctioned by the Constitution.

It is not important to review, at length, the measures which have been taken, under this power, by the executive and legislative departments of the National government. It is proper, however, to observe that almost immediately after the cessation of organized hostilities, and while the war yet smouldered in Texas, the President of the United States issued his proclamation appointing a provisional governor for the State, and providing for the assembling of a convention, with a view to the re-establishment of a republican government, under an amended constitution, and to the restoration of the State to her proper constitutional relations. A convention was accordingly assembled, the constitution amended, elections held, and a State government, acknowledging its obligations to the Union, established.

Whether the action then taken was, in all respects, warranted by the Constitution, it is not now necessary to determine. [p730] The power exercised by the President was supposed, doubtless, to be derived from his constitutional functions, as commander-in-chief; and, so long as the war continued, it cannot be denied that he might institute temporary government within insurgent districts, occupied by the National forces, or take measures, in any State, for the restoration of State government faithful to the Union, employing, however, in such efforts, only such means and agents as were authorized by constitutional laws.

But, the power to carry into effect the clause of guaranty is primarily 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 government, Congress must necessarily decide what government is established in the State, before it can determine whether it is republican or not."

This is the language of the late Chief Justice, speaking for this court, in a case from Rhode Island, arising from the organization of opposing governments in that State. And, we think that the principle sanctioned by it may be applied, with even more propriety, to the case of a State deprived of all rightful government, by revolutionary violence; though necessarily limited to cases where the rightful government is thus subverted, or in imminent danger of being overthrown by an opposing government, set up by force within the State.

The action of the President must, therefore, be considered as provisional, and, in that light, it seems to have been regarded by Congress. It was taken after the term of the 38th Congress had expired. The 39th Congress, which assembled in December, 1865, followed by the 40th Congress, which met in March, 1867, proceeded, after long deliberation, to adopt various measures for reorganization and restoration. These measures were embodied in proposed amendments to the Constitution, and in the acts known as the Reconsturction [p731] Acts, which have been so far carried into effect, that a majority of the States which were engaged in the rebellion have been restored to their constitutional relations, under forms of government, adjudged to be republican by Congress, through the admission of their "Senators and Representatives into the councils of the Union."

Nothing in the case before us requires the court to pronounce judgment upon the constitutionality of any particular provision of these acts.

But, it is important to observe that these acts themselves show that the governments, which had been established and had been in actual operation under executive direction, were recognized by Congress as provisional, as existing, and as capable of continuance.

By the act of March 2, 1867, the first of the series, these governments were, indeed, pronounced illegal and were subjected to military control, and were declared to be provisional only; and by the supplementary act of July 19, 1867, the third of the series, it was further declared that it was the true intent and meaning of the act of March 2, that the governments then existing were not legal State governments, and if continued, were to be continued subject to the military commanders of the respective districts and to the paramount authority of Congress. We do not inquire here into the constitutionality of this legislation so far as it relates to military authority, or to the paramount authority of Congress. It suffices to say, that the terms of the acts necessarily imply recognition of actually existing governments; and that in point of fact, the governments thus recognized, in some important respects, still exist.

What has thus been said generally describes, with sufficient accuracy, the situation of Texas. A provisional governor of the State was appointed by the President in 1865; in 1866 a governor was elected by the people under the constitution of that year; at a subsequent date a governor was appointed by the commander of the district. Each of the [p732] three exercised executive functions and actually represented the State in the executive department.

In the case before us each has given his sanction to the prosecution of the suit, and we find no difficulty, without investigating the legal title of either to the executive office, in holding that the sanction thus given sufficiently warranted the action of the solicitor and counsel in behalf of the State. The necessary conclusion is that the suit was instituted and is prosecuted by competent authority.

The question of jurisdiction being thus disposed of, we proceed to the consideration of the merits as presented by the pleadings and the evidence.

And the first question to be answered is, whether or not the title of the State to the bonds in controversy was divested by the contract of the military board with White and Chiles?

That the bonds were the property of the State of Texas on the 11th of January, 1862, when the act prohibiting alienation without the indorsement of the governor, was repealed, admits of no question, and is not denied. They came into her possession and ownership through public acts of the general government and of the State, which gave notice to all the world of the transaction consummated by them. And, we think it clear that, if a State, by a public act of her legislature, imposes restrictions upon the alienation of her property, that every person who takes a transfer of such property must be held affected by notice of them. Alienation, in disregard of such restrictions, can convey no title to the alienee.

In this case, however, it is said, that the restriction imposed by the act of 1851 was repealed by the act of 1862. And this is true if the act of 1862 can be regarded as valid. But, was it valid?

The legislature of Texas, at the time of the repeal, constituted one of the departments of a State government, established in hostility to the Constitution of the United States. It cannot be regarded, therefore, in the courts of the United States, as a lawful legislature, or its acts as lawful [p733] acts. And, yet, it is an historical fact that the government of Texas, then in full control of the State, was its only actual government; and certainly if Texas had been a separate State, and not one of the United States, the new government, having displaced the regular authority, and having established itself in the customary seats of power, and in the exercise of the ordinary functions of administration, would have constituted, in the strictest sense of the words, a de facto government, and its acts, during the period of its existence as such, would be effectual, and, in almost all respects, valid. And, to some extent, this is true of the actual government of Texas, though unlawful and revolutionary, as to the United States.

It is not necessary to attempt any exact definitions, within which the acts of such a State government must be treated as valid, or invalid. It may be said, perhaps with sufficient accuracy, that acts necessary to peace and good order among citizens, such for example, as acts sanctioning and protecting marriage 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 emanating from a lawful government, must be regarded in general as valid when proceeding from an actual, though unlawful government; and that acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void.

What, then, tried by these general tests, was the character of the contract of the military board with White and Chiles?

That board, as we have seen, was organized, not for the defence of the State against a foreign invasion, or for its protection against domestic violence, within the meaning of these words as used in the National Constitution, but for the purpose, under the name of defence, of levying war against the United States. This purpose was, undoubtedly, unlawful, for the acts which it contemplated are, within the express definition of the Constitution, treasonable.

[p734] It is true that the military board was subsequently reorganized. It consisted, thereafter, of the governor and two other members, appointed and removable by him; and was, therefore, entirely subordinate to executive control. Its general object remained without change, but its powers were "extended to the control of all public works and supplies, and to the aid of producing within the State, by the importation of articles necessary and proper for such aid."

And it was insisted in argument on behalf of some of the defendants, that the contract with White and Chiles, being for the purchase of cotton-cards and medicines, was not a contract in aid of the rebellion, but for obtaining goods capable of a use entirely legitimate and innocent, and, therefore, that payment for those goods by the transfer of any property of the State was not unlawful. We cannot adopt this view. Without entering, at this time, upon the inquiry whether any contract made by such a board can be sustained, we are obliged to say that the enlarged powers of the board appear to us to have been conferred in furtherance of its main purpose, of war against the United States, and that the contract, under consideration, even if made in the execution of these enlarged powers, was still a contract in aid of the rebellion, and, therefore, void. And we cannot shut our eyes to the evidence which proves that the act of repeal was intended to aid rebellion by facilitating the transfer of these bonds. It was supposed, doubtless, that negotiation of them would be less difficult if they bore upon their face no direct evidence of having come from the possession of any insurgent State government. We can give no effect, therefore, to this repealing act.

It follows that the title of the State was not divested by the act of the insurgent government in entering into this contract.

But it was insisted further, in behalf of those defendants who claim certain of these bonds by purchase, or as collateral security, that however unlawful may have been the means by which White and Chiles obtained possession of the bonds, [p735] they are innocent holders, without notice, and entitled to protection as such under the rules which apply to securities which pass by delivery. These rules were fully discussed in Murray v. Lardner. We held in that case that the purchaser of coupon bonds, before due, without notice and in good faith, is unaffected by want of title in the seller, and that the burden of proof in respect to notice and want of good faith, is on the claimant of the bonds as against the purchaser. We are entirely satisfied with this doctrine.

Does the State, then, show affirmatively notice to these defendants of want of title to the bonds in White and Chiles?

It would be difficult to give a negative answer to this question if there were no other proof than the legislative acts of Texas. But there is other evidence which might fairly be held to be sufficient proof of notice, if the rule to which we have adverted could be properly applied to this case.

But these rules have never been applied to matured obligations. Purchasers of notes or bonds past due take nothing but the actual right and title of the vendors.

The bonds in question were dated January 1, 1851, and were redeemable after the 31st of December, 1864. In strictness, it is true they were not payable on the day when they became redeemable; but the known usage of the United States to pay all bonds as soon as the right of payment accrues, except where a distinction between redeemability and payability is made by law, and shown on the face of the bonds, requires the application of the rule respecting overdue obligations to bonds of the United States which have become redeemable, and in respect to which no such distinction has been made.

Now, all the bonds in controversy had become redeemable before the date of the contract with White and Chiles; and all bonds of the same issue which have the indorsement of [p736] a governor of Texas made before the date of the secession ordinance,—and there were no others indorsed by any governor,—had been paid in coin on presentation at the treasury Department; while, on the contrary, applications for the payment of bonds, without the required indorsement, and of coupons detached from such bonds, made to that department, had been denied.

As a necessary consequence, the negotiation of these bonds became difficult. They sold much below the rates they would have commanded had the title to them been unquestioned. They were bought in fact, and under the circumstances could only have been bought, upon speculation. The purchasers took the risk of a bad title, hoping, doubtless, that through the action of the National government, or of the government of Texas, it might be converted into a good one.

And it is true that the first provisional governor of Texas encouraged the expectation that these bonds would be ultimately paid to the holders. But he was not authorized to make any engagement in behalf of the State, and in fact made none. It is true, also, that the Treasury Department, influenced perhaps by these representations, departed to some extent from its original rule, and paid bonds held by some of the defendants without the required indorsement. But it is clear that this change in the action of the department could not affect the rights of Texas as a State of the Union, having a government acknowledging her obligations to the National Constitution.

It is impossible, upon this evidence, to hold the defendants protected by absence of notice of the want of title in White and Chiles. As these persons acquired no right to payment of these bonds as against the State, purchasers could acquire none through them.

On the whole case, therefore, our conclusion is that the State of Texas is entitled to the relief sought by her bill, and a decree must be made accordingly.

[Dissents of Grier and Swayne on separate pages.]

The decree overruled the objection interposed by way of plea, in the answer of defendants to the authority of the solicitors of [p742] the complainant to institute this suit, and to the right of Texas, as one of the States of the National Union, to bring a bill in this court.

It declared the contract of 12th January, 1865, between the Military Board and White and Chiles void, and enjoined White and Chiles from asserting any claim under it, and decreed that the complainant was entitled to receive the bonds and coupons mentioned in the contract, as having been transferred or sold to White and Chiles, which, at the several times of service of process, in this suit, were in the possession, or under the control of the defendants respectively, and any proceeds thereof which had come into such possession or control, with notice of the equity of the complainant.

It enjoined White, Chiles, Hardenberg, Birch, Murray, Jr., and other defendants, from setting up any claim to any of the bonds and coupons attached, described in the first article of said contract, and that the complainant was entitled to restitution of such of the bonds and coupons and proceeds as had come into the possession or control of the defendants respectively.

And the court, proceeding to determine for which and how many bonds the defendants respectively were accountable to make restitution of, or make good the proceeds of, decreed that Birch and Murray were so accountable for eight, numbered in a way stated in the decree, with coupons attached; and one Stewart (a defendant mentioned in the note at page 702), accountable for four others, of which the numbers were given, with coupons; decreed that Birch and Murray, as also Stewart, should deliver to the complainant the bonds for which they were thus made accountable, with the coupons, and execute all necessary transfers and instruments, and that payment of those bonds, or any of them, by the Secretary of the Treasury, to the complainant, should be an acquittance of Birch and Murray, and of Stewart, to that extent, and that for such payment this decree should be sufficient warrant to the secretary.

And, it appearing—the decree went on to say—upon the pleadings and proofs, that before the filing of the bill, Birch and Murray had received and collected from the United States the full amount of four other bonds, numbered, &c., and that Hardenberg, before the commencement of the suit, had deposited thirty-four bonds, numbered, &c., in the Treasury Department for redemption, of which bonds he claimed to have received payment [p743] from the Secretary of the Treasury before the service of process upon him in this suit, in respect to which payment and the effect thereof the counsel for the said Birch and Murray, and for the said Hardenberg respectively, desired to be heard, it was ordered that time for such hearing should be given to the said parties.

Both the complainant and the defendants had liberty to apply for further directions in respect to the execution of the decree.

title: Texas v. White/Opinion of the Court


text: Talk:Texas v. White/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Roland v. United States

APPEAL from the District Court for the Northern District of California, respecting a land claim, under the act of March 3d, 1851. The grant purported to have been made on the 2d of May, 1846, by Pio Pico; Moreno being secretary ad interim; this court having decided that, after the 7th July, 1846, Pico had no powers as governor. The claim was for 'eleven leagues of land in California, at the junction of the San Joaquin and Stanislaus rivers.' The expediente was obtained from the archives, and was among the papers of which Hartwell made an index. In consisted of a petition, marginal order that the title issue, decree of concession, and the borrador, or draft, of the title, to be given to the party interested. It differed from other expedientes in this: that there was no report, no dise no, no approval by the Departmental Assembly, and because the whole proceedings were begun and consummated on the same day. This document not being enough to establish the title, the claimant, in order to make it complete, produced from his own custody the titulo which annexed conditions to the grant; a petition asking for further time to comply with these conditions; the order of the governor granting the request, and a certificate that the Departmental Assembly approved the grant.

In the borrador, the land was described 'as eleven leagues, situated on the banks of the rivers Stanislaus and San Joaquin,' corresponding with the description given in the petition. The titulo, issued on the same day as the borrador, directed 'that the measurement of the eleven leagues shall be on the banks of the Stanislaus, of the width of one league, commencing where the two rivers run.'

The signature, 'Pio Pico,' to the grant in this case had a different aspect, in certain particulars, from other signatures to public documents of the same governor; especially in the letter P.

Pico and Moreno were examined as witnesses. Pico testified that he believed that the signature to the grant, purporting to be his, was his; and he thought that the one purporting to be Moreno's was Moreno's. As to the one purporting to be his own, and the difference between it and some singatures admitted, he said that he 'was accustomed to sign his name sometimes in one way and sometimes in another.' He could not tell whether he had signed any document at a date different from that which the document bore, but he believed that he had not; he had no recollection when he signed this document; he believed that he had made no grants after 1846, but did not remember when, in 1846, he ceased making them. He might have made, elsewhere than in Los Angeles, grants dated as if there made; but he was positive that he signed none of the papers in this case in 1847 or 1848. He had no recollection of anything connected with this particular grant; and 'none whatever' of Roland's application. He knew Roland, however, and had known him since 1840; thought that he was naturalized; he remembered, at all events, that he had married a Mexican woman; there was no particular reason, he testified, for granting so much as eleven leagues to Roland, 'except that he was an honest man, had a family and considerable property.' The law, as he considered, imposed no limits; but eleven leagues was his limit in fact.

Moreno testified that he believed the signature of Pico to be genuine. He remembered that Roland 'petitioned for lands' during the short time that he, Moreno, was secretary, and that they were granted to him; but he did not recollect the time when, or the circumstances under which the grant now set up was made; but he stated that, in 1846, the country was generally in a state of agitation, and that great confusion prevailed in all the public offices. The record contained a certificate from Pio Pico, that the Departmental Assembly met on the 4th day of May, 1846, and approved this grant. It appeared, however, from the journals of the Departmental Assembly, that the earliest meeting in May was on the 8th of May, when minutes of the 29th of April were read and approved. Pico, in his testimony given, accounted, or attempted to account for this by saying that at that time 'there was great informality in all public affairs, and that it might have been that the notes of the meeting of the 4th were lost or mislaid; that they might have been left on the table, and only the draft of the 29th April been delivered to the secretary, to be copied into the book.' He had no recollection that the grant was approved by the Departmental Assembly, or of his giving a certificate that it had been; nor any reason whatever for believing that it had been, except his seeing what he was positively sure was his own certificate that it was.

Some slight omissions and discrepancies were also pointed out in the journal.

It was admitted by an agreement of record, as a fact, that on the 22d day of July, 1845, Governor Pico granted to Roland and one Julius Horkman, four leagues of land, and that the claim had been prosecuted and confirmed. And that on the 6th day of May, 1846, he granted to Roland and one Louis Avenas, the sobrantes of certain ranchos, to the extent of nine leagues. This grnat had been presented for confirmation, and was now pending in the District Court of California.

The District Court rejected the claim, and the claimant now appealed here; the question at issue being whether the title here set up was a genuine title to land in California acquired under Mexican rule, which this government was under obligations to protect?

Messrs. Carlisle and Black, for the appellant, citing United States v. Johnson.

Mr. Evarts, Attorney-General, and Mr. Wills, contra, who relied largely on White v. United States, and Pico v. Same.

Mr. Justice DAVIS delivered the opinion of the court.

title: Roland v. United States


text: Talk:Roland v. United States

title: Talk:Roland v. United States


text:
Roland v. United States/Opinion of the Court

The haste and recklessness, to use no harsher term, with which this grant was made, cannot but suggest grave doubts of the bon a fides of the transaction. It nowhere appears that Roland had any claim on the bounty of the Mexican nation, or ability, or intention to occupy so large a tract of country; any yet Pico, near the time when power passed from his hands, in the midst of civil commotion, disregarding the customary and established modes of making concession of the public domain to meritorious persons; without an informe; without a map; without any inquiry whatever; grants to him eleven leagues of land (the maximum quantity grantable to a single person) in a remote wilderness, occupied by hostile Indians, and of which so little was known that the best description that could be given of it was, that it was situated on the banks of the San Joaquin and Stanislaus rivers.

That the plain requirements of the Mexican colonization laws were violated in these proceedings, is very apparent from the frequent decisions of this court in this class of cases; but it is unnecessary to examine the effect of this departure on this title, if it were genuine, because in our opinion it has no validity. And it is not the first time, in the history of California land cases in this court, that grants made at or near the time of the one in controversy purports to be made by Governor Pico, and countersigned by his secretary, Moreno, have been held not to be genuine.

The struggle in this case, as in others of like character, is to make up by parol proof for a deficiency of record evidence. Pico and Moreno have been examined in support of the title, but their testimony is singularly unsatisfactory. Pico has no recollection of making the grant, nor, indeed, of Roland's application, but is able to identify his signatures. Although he knew Roland-that he had married a Mexican woman, the number of his children, and the state of his property-yet he cannot recollect that he donated to him an immense tract in a remote part of the country, and broke through all the forms of law in order to do it quickly.

A transaction of this magnitude, where the favored party was known, is not apt to be forgotten, and to say the least on the subject, this want of memory on Pico's part, is in itself a circumstance of great suspicion that the grant was never made. Moreno's memory, if somewhat better than Pico's, is not enough so to clear away the difficulties from this title.

It is a little singular, if Pico's signatures to the papers produced by the claimant are authentic, that they should differ so materially from his signatures to public documents of that date. In Luco v. The United States, the same differences existed, and the court adopted the conclusion that they were not genuine. If these inequalities in Pico's signatures create distrust as to their genuineness, the different phraseology in describing the land in the borrador, from that used in the titulo, increases the distrust in the authenticity of this title.

In the borrador the land is described 'as eleven leagues, situated on the banks of the rivers Stanislaus and San Joaquin,' corresponding with the description given in the petition, while the titulo, issued on the same day as the borrador, directs 'that the measurement of the eleven leagues shall be on the banks of the Stanislaus, of the width of one league, commencing where the two rivers run.' On the theory that the borrador and titulo were actually signed on the same day, how did it come to pass that the designation of the tract is so much more particular in the one than in the other? It will be borne in mind that Pico and Moreno have no definite recollection concerning this grant, and yet in this most important point the title-paper issued to the claimant differs essentially from the one which forms part of the expediente. Why think of the necessity of this change of description, when both documents were made on the same day, and form part of the same transaction? The change of description cannot be explained on the hypothesis that both papers were prepared and executed on the same day; but it is easily under stood, if the titulo was prepared at a subsequent date, when the parties interested could see that a more definite description was wanting, than that which the borrador furnished.

But there are much graver difficulties affecting this title than those which we have noticed.

The claimant, in attempting to prove too much, has established the falsity of his title. This court has frequently decided, that the approval by the Departmental Assembly was not necessary to the validity of a grant; but has also observed that, under certain circumstances, the absence of such approval is entitled to great weight. It was, doubtless, with a view to meet all objections, and to show the fulness of his title, that the claimant furnished evidence that the Assembly did approve the grant. If this evidence is true, it strengthens the claimant's title, but if false, it destroys all confidence in it. It is important therefore to ascertain whether the Assembly met on the 4th day of May, 1846. Pico certifies that it did meet on that day, and approved this grant; but it is clear that very little reliance can be placed on this certificate, if genuine, because, when interrogated on the subject, Pico testifies that he has no recollection of the approval, nor, indeed, of giving a certificate to that effect, and but for the fact that he sees his signature to the certificate of approval, he has no reason to believe that the grant was approved. It is true he testifies that there was great looseness in the administration of public affairs at the time; but from this no inference can be properly drawn that the Departmental Assembly convened on the 4th day of May, 1846. It will not do to say that there might have been a meeting of that body on that day. In the absence of direct proof of the fact, there must be evidence affording reasonable grounds to believe that the meeting actually took place, and that the records of it are lost. But we are not left, in this case, to rely on conjectures or probabilities, for, fortunately, the journals of the Departmental Assembly have been preserved, and they show that the body was not in session at the date when the testimonio states the grant to have been approved. It appears by the journals that the earliest meeting in May was the 8th day of the month, when the minutes of the meeting held on the 29th day of the preceding month of April, as was customary, were read and approved.

It is not credible that the Assembly could have met between these dates, and overlooked the fact in recording the proceedings of the 8th of May.

To escape the force of this evidence, the claimant has pointed out some discrepancies and omissions in the journals, but they are not of a character requiring notice, and do not tend to prove that the Assembly convened on the day when the testimonio purports to have been signed.

If Pico does not remember the sale of this large tract of country, nor the fact of approval by the Assembly, of what value is his testimony that the approval must have been obtained, because the document certifying to it bears his signature?

But if what has been said is not enough to show that the alleged grant was not issued to Roland, there is still further evidence in the record, which is conclusive on the point.

In deciding this case we are to be governed by the laws and usages of the Mexican government, in granting lands, before the conquest of California, and according to the principles of equity. Tested by these rules, this claim has neither a legal or equitable status.

Lands were to be granted by the colonization laws of Mexico, for the purpose of cultivating and inhabiting them, and no more than eleven leagues could be granted to a single individual. It is stipulated in the record that, on the 22d day of July, 1845, Governor Pico granted to John Roland and Julius Horkman, four leagues of land, and that the claim has been prosecuted and confirmed. And that on the 6th day of May, 1846, only four days after the date of the grant in controversy, a still further grant was made to John Roland and Louis Arenas, of the sobrantes of certain ranchos, to the extent of nine leagues. This latter grant is also claimed to be genuine, and has been presented for confirmation, and is now pending in the District Court of California. All these grants cannot be sustained, because Pico had no power to make them. If they could be sustained Roland would receive from the Mexican government (if the surplus lands of the ranchos reached nine leagues) a quantity of land exceeding seventeen leagues. The United States are under no obligations to recognize grants which aggregate, in the hands of one person, such a quantity of land, even if they were actually made; but the strong probability is, that the eleven-league grant was abandoned when the petition was presented, and the grant obtained for other lands in a different part of the country. In no other way can we acquit Pico of a wilful departure from the law under which he acted, and account for the petition and grant of the 6th of May.

It is fair to infer from this record that Roland was an intelligent man, and knew the limit of the governor's power to grant lands, and the corrective applied by the Departmental Assembly when he exceeded his authority. If so, he knew Pico had no right to make the eleven-league grant, because he had already conceded to him the undivided half of four leagues, in July, 1845. It may be, before the proceedings were completed for the eleven-league grant, he saw his difficulty, and concluded to rely on the first grant made to him, and to ask for a concession of other lands nearer the settled part of the State, and which lands, although less in quantity, were more desirable. Adopting this theory, the conduct of Roland in asking for other lands on the 6th of May, can be explained. On any other theory his petition on that day for an additional grant, and Pico's action conceding it, were palpable frauds committed against the letter and spirit of the colonization laws of Mexico.

Without pursuing the subject further, in our opinion this claim should not be confirmed.

The archive papers fail to make out the title, and the papers produced by the claimant are not genuine, but the result of an afterthought, and would never have been produced in court if the unparalleled growth of California had not stimulated the cupidity of speculators to experiment with fragments of title-papers left unfinished by Pico, and which were gathered up by our officers on the conquest of the country.

DECREE AFFIRMED.

MILLER and FIELD, JJ., dissenting.


text: Talk:Roland v. United States/Opinion of the Court


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Page:The Confidence Man.djvu/238

" judge always began in these words: 'The backwoodsman's hatred of the Indian has been a topic for some remark. In the earlier times of the frontier the passion was thought to be readily accounted for. But Indian rapine having mostly ceased through regions where it once prevailed, the philanthropist is surprised that Indian-hating has not in like degree ceased with it. He wonders why the still regards the red man in much the same spirit that a jury does a murderer, or a trapper a wild cat—a creature, in whose behalf mercy were not wisdom; truce is vain; he must be executed.

"'A curious point,' the judge would continue, 'which perhaps not everybody, even upon explanation, may fully understand; while, in order for any one to approach to an understanding, it is necessary for him to learn, or if he already know, to bear in mind, what manner of man the backwoodsman is; as for what manner of man the Indian is, many know, either from history or experience.

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42 "La Société des Amis des Noirs" soon extended its mighty support to the lawful claims of those who hitherto were treated like pariahs.

The "affranchis" became more and more conscious of their importance. In 1779, responding to the call of the Comte d'Estaing, 800 blacks and mulattoes left their families and their homes, and went to fight side by side with the soldiers of George Washington. At the siege of Savannah the colored sons of Haiti fearlessly shed their blood for the independence of the United States. After fighting for the liberty of others was it possible that they would willingly tolerate slavery for their mothers, their brothers, and their sisters? Could they be content under the arbitrary rule of a system which had despoiled them of their rights? But, blinded by their prejudice, the wealthy planters would not make the slightest concession in their favor. They founded in Paris the "Club Massiac," which became henceforth the centre of action of their coterie. Yet at that time the pretensions of the "affranchis" were very moderate. What was it they were claiming? Simply the equality of political rights which was granted to them in 1685 by the Black Code. By yielding to their requests the colonists would have saved their property, and Saint-Domingue might perhaps have remained a part of the French territory.


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Rh "'The backwoodsman is a lonely man. He is a thoughtful man. He is a man strong and unsophisticated. Impulsive, he is what some might call unprincipled. At any rate, he is self-willed; being one who less hearkens to what others may say about things, than looks for himself, to see what are things themselves. If in straits, there are few to help; he must depend upon himself; he must continually look to himself. Hence self-reliance, to the degree of standing by his own judgment, though it stand alone. Not that he deems himself infallible; too many mistakes in following trails prove the contrary; but he thinks that nature destines such sagacity as she has given him, as she destines it to the 'possum. To these fellow-beings of the wilds their untutored sagacity is their best dependence. If with either it prove faulty, if the 'possum's betray it to the trap, or the backwoodsman's mislead him into ambuscade, there are consequences to be undergone, but no self-blame. As with the 'possum, instincts prevail with the backwoodsman over precepts. Like the 'possum, the backwoodsman presents the spectacle of a creature dwelling exclusively among the works of God, yet these, truth must confess, breed little in him of a godly mind. Small bowing and scraping is his, further than when with bent knee he points his rifle, or picks its flint. With few companions, solitude by necessity his lengthened lot, he stands the trial—no slight one, since, next to dying, solitude, rightly borne, is perhaps of fortitude the moat rigorous test. But not merely is the backwoodsman content to be alone, but in no few cases

title: Page:The Confidence Man.djvu/239


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Rh Still they chose to run the greatest risks rather than share the administration of the island with men whom they considered their inferiors. From the convocation of the States General, the wealthy planters began to defy the colonial authority, thus giving the first example of insubordination. On their own responsibility they secretly appointed eighteen representatives whom they sent to France. On their arrival at Versailles they found the National Assembly already organized. This first act of insubordination was followed by others still more important. When the news of the fall of the Bastille reached Saint-Domingue, the pretensions of the colonists knew no bounds. They elected municipalities and even an Assembly, which, assuming the title of "General Assembly of the French part of Saint-Domingue," met at Saint-Marc and arrogated full powers. On the 28th of May, 1790, this Assembly adopted a decree which constituted almost a declaration of independence. The attitude and encroachment of this body was naturally highly displeasing to the colonial government, which ordered its dissolution and resorted to force in order to compel its members to disperse. The whites took no pains to conceal from the "affranchis" the discord existing among themselves. Excluded from all the assemblies elected at Saint-Domingue, the freedmen had never ceased to protest against the arbitrary deprivation of their political rights. Their representatives in France, among whom were Julien Raymond and Vincent Ogé, were fighting hard to put an end to their humiliating position. Through the powerful assistance of the Society "des Amis des Noirs," they were received, on the 22d of October, 1789, by the National Assembly. Later on the "affranchis" offered to France 6,000,000 francs and the fifth of their properties in guarantee of the national indebtedness. The Assembly was not long in taking up


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226 is anxious to be so. The sight of smoke ten miles off is provocation to one more remove from man, one step deeper into nature. Is it that he feels that whatever man may be, man is not the universe? that glory, beauty, kindness, are not all engrossed by him? that as the presence of man frights birds away, so, many bird-like thoughts? Be that how it will, the backwoodsman is not without some fineness to his nature. Hairy Orson as he looks, it may be with him as with the Shetland seal—beneath the bristles lurks the fur.

" 'Though held in a sort a barbarian, the backwoods man would seem to America what Alexander was to Asia—captain in the vanguard of conquering civilization. Whatever the nation's growing opulence or power, does it not lackey his heels? Pathfinder, provider of security to those who come after him, for himself he asks nothing but hardship. Worthy to be compared with Moses in the Exodus, or the Emperor Julian in Gaul, who on foot, and bare-browed, at the head of covered or mounted legions, marched so through the elements, day after day. The tide of emigration, let it roll as it will, never overwhelms the backwoodsman into itself; he rides upon advance, as the Polynesian upon the comb of the surf.

" 'Thus, though he keep moving on through life, he maintains with respect to nature much the same unaltered relation throughout; with her creatures, too, including panthers and Indians. Hence, it is not unlikely that, accurate as the theory of the Peace Congress may be with respect to those two varieties of

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Rh beings, among others, yet the backwoodsman might be qualified to throw out some practical suggestions.

" 'As the child born to a backwoodsman must in turn lead his father's life—a life which, as related to humanity, is related mainly to Indians—it is thought best not to mince matters, out of delicacy; but to tell the boy pretty plainly what an Indian is, and what he must expect from him. For however charitable it may be to view Indians as members of the Society of Friends, yet to affirm them such to one ignorant of Indians, whose lonely path lies a long way through their lands, this, in the event, might prove not only injudicious but cruel. At least something of this kind would seem the maxim upon which backswoods' education is based. Accordingly, if in youth the backwoodsman incline to knowledge, as is generally the case, he hears little from his schoolmasters, the old chroniclers of the forest, but histories of Indian lying, Indian theft, Indian double-dealing, Indian fraud and perfidy, Indian want of conscience, Indian blood-thirstiness, Indian diabolism—histories which, though of wild woods, are almost as full of things unangelic as the Newgate Calendar or the Annals of Europe. In these Indian narratives and traditions the lad is thoroughly grounded. " As the twig is bent the tree's inclined." The instinct of antipathy against an Indian grows in the backwoodsman with the sense of good and bad, right and wrong. In one breath he learns that a brother is to be loved, and an Indian to be hated.

" 'Such are the facts,' the judge would say, 'upon

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228 which, if one seek to moralize, he must do so with an eye to them. It is terrible that one creature should so regard another, should make it conscience to abhor an entire race. It is terrible; but is it surprising? Surprising, that one should hate a race which he believes to be red from a cause akin to that which makes some tribes of garden insects green? A race whose name is upon the frontier a memento mori; painted to him in every evil light; now a horse-thief like those in Moyamensing; now an assassin like a New York rowdy; now a treaty-breaker like an Austrian; now a Palmer with poisoned arrows; now a judicial murderer and Jeffries, after a fierce farce of trial condemning his victim to bloody death; or a Jew with hospitable speeches cozening some fainting stranger into ambuscade, there to burk him, and account it a deed grateful to Manitou, his god. " 'Still, all this is less advanced as truths of the Indians than as examples of the backwoodsman's impression of them—in which the charitable may think he does them some injustice. Certain it is, the Indians themselves think so; quite unanimously, too. The Indians, in deed, protest against the backwoodsman's view of them; and some think that one cause of their returning his antipathy so sincerely as they do, is their moral indignation at being so libeled by him, as they really believe and say. But whether, on this or any point, the Indians should be permitted to testify for themselves, to the exclusion of other testimony, is a question that may be left to the Supreme Court. At any rate, it has been observed that when an Indian becomes a genuine

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44 the slavery question. Whilst the matter was under discussion, Charles de Lameth, one of the wealthy planters, spoke, on the 4th of December, in favor of the freedom of the blacks and claimed their right to become members of the colonial assemblies. The colonists decided that the time had come to check the audacity of the "affranchis," and as usual they resorted to all kinds of atrocities. In the town of Cap-Français the mulatto Lacombe was hanged, his only crime having been that he dared to present a humble petition claiming the "Rights of man" (Les Droits de 1'homme). At Petit-Goave, a highly respected old man, Fernand de Baudières, a white, was beheaded. He was charged with having drawn up a petition asking, not for equality of rights in favor of the "affranchis," but only for a slight betterment of their condition. At Aquin, a mulatto, G. Labadie, seventy years old, simply suspected of having in his possession a copy of the petition, was attacked by night at his home by the whites. Severely wounded, this septuagenarian, a man universally esteemed, was tied to the tail of a horse and dragged through the streets. At Plaisance, the mulatto Atrel, guilty of having accepted a claim upon a white man, was killed by a band of infuriated people. At Fonds-Parisien the whites set fire to the most important sugar refineries of the "affranchis" Desmares, Poisson, Renaud. In time to come, the slaves who revolted, remembering this merciless destruction of property, in their turn reduced to ashes the rich plantations of the colonists. The French spared not even the children. At


text: 1911 Encyclopædia Britannica/Dodgson, Charles Lutwidge


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Rh proselyte to Christianity (such cases, however, not being very many; though, indeed, entire tribes are sometimes nominally brought to the true light,) he will not in that case conceal his enlightened conviction, that his race's portion by nature is total depravity; and, in that way, as much as admits that the backwoodsman's worst idea of it is not very far from true; while, on the other hand, those red men who are the greatest sticklers for the theory of Indian virtue, and Indian loving-kindness, are sometimes the arrantest horse-thieves and tomahawkers among them. So, at least, avers the backwoodsman. And though, knowing the Indian nature, as he thinks he does, he fancies he is not ignorant that an Indian may in some points deceive himself almost as effectually as in bush-tactics he can another, yet his theory and his practice as above contrasted seem to involve an inconsistency so extreme, that the backwoodsman only accounts for it on the supposition that when a tomahawking red-man advances the notion of the benignity of the red race, it it but part and parcel with that subtle strategy which he finds so useful in war, in hunting, and the general conduct of life.'

"In further explanation of that deep abhorrence with which the backwoodsman regards the savage, the judge used to think it might perhaps a little help, to consider what kind of stimulus to it is furnished in those forest histories and traditions before spoken of. In which behalf, he would tell the story of the little colony of Wrights and Weavers, originally seven cousins from Virginia, who, after successive removals with their families,

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230 at last established themselves near the southern frontier of the Bloody Ground, Kentucky: 'They were strong, brave men; but, unlike many of the pioneers in those days, theirs was no love of conflict for conflict's sake. Step by step they had been lured to their lonely resting-place by the ever-beckoning seductions of a fertile and virgin land, with a singular exemption, during the march, from Indian molestation. But clearings made and houses built, the bright shield was soon to turn its other side. After repeated persecutions and eventual hostilities, forced on them by a dwindled tribe in their neighborhood—persecutions resulting in loss of crops and cattle; hostilities in which they lost two of their number, illy to be spared, besides others getting painful wounds—the five remaining cousins made, with some serious concessions, a kind of treaty with Mocmohoc, the chief—being to this induced by the harryings of the enemy, leaving them no peace. But they were further prompted, indeed, first incited, by the suddenly changed ways of Mocmohoc, who, though hitherto deemed a savage almost perfidious as Cæsar Borgia, yet now put on a seeming the reverse of this, engaging to bury the hatchet, smoke the pipe, and be friends forever; not friends in the mere sense of renouncing enmity, but in the sense of kindliness, active and familiar.

" 'But what the chief now seemed, did not wholly blind them to what the chief had been; so that, though in no small degree influenced by his change of bearing, they still distrusted him enough to covenant with him,

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Rh among other articles on their side, that though friendly visits should be exchanged between the wigwams and the cabins, yet the five cousins should never, on any account, be expected to enter the chief's lodge together. The intention was, though they reserved it, that if ever, under the guise of amity, the chief should mean them mischief, and effect it, it should be but partially; so that some of the five might survive, not only for their families' sake, but also for retribution's. Nevertheless, Mocmohoc did, upon a time, with such fine art and pleasing carriage win their confidence, that he brought them all together to a feast of bear's meat, and there, by stratagem, ended them. Years after, over their calcined bones and those of all their families, the chief, reproached for his treachery by a proud hunter whom he had made captive, jeered out, "Treachery? pale face! 'Twas they who broke their covenant first, in coming all together; they that broke it first, in trusting Mocmohoc." '

"At this point the judge would pause, and lifting his hand, and rolling his eyes, exclaim in a solemn enough voice, 'Circling wiles and bloody lusts. The acuteness and genius of the chief but make him the more atrocious.'

"After another pause, he would begin an imaginary kind of dialogue between a backwoodsman and a questioner: "'But are all Indians like Mocmohoc?—Not all have proved such; but in the least harmful may lie his germ. There is an Indian nature. "Indian blood is in me," is the half-breed's threat. But are not some Indians

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Rh de l'Artibonite a party of 25 whites, after searching in vain for a mulatto, ended by killing his two children; in the same locality they murdered a father and his two sons. A black freedman was, without the least provocation, put to death by a party of whites; whilst at Cap-Français there took place a wholesale slaughter of the "affranchis" by the colonists. Such are the atrocities with which the wealthy planters started the French revolution in Saint-Domingue. By and by both "affranchis" and slaves retaliated by taking revenge of all the horrible crimes of which they had been the victims. Many foreign writers unfriendly toward Haiti make mention only of the reprisals; but they intentionally omit all allusion to the frequent revolting crimes which had caused them. By a decree of March 8, 1790, the National Assembly had, however, indicated the powers vested in the colonial assemblies of the French possessions. And, according to article 4 of the Instructions adopted on the 28th of the same month, all persons 25 years old, owning real estate or domiciled in the parish for two years and paying taxes, were authorized to take part in the election of those assemblies. The "affranchis" possessed the full requirements, and therefore imagined that they would at last be able to exercise their political rights. Their illusions did not last long. The colonists of Saint-Domingue did not consider as persons men of the black race; they regarded them as things. In consequence they were not allowed to vote. Foreseeing the decision of the wealthy planters, Vincent Ogé, one of the commissioners of the "affranchis," decided to return to Saint-Domingue in order to demand the fair application of the Decree and the Instructions of March, 1790. He assumed the pseudonym of Poissac; and in spite of all the hindrances placed in his way he succeeded in leaving France. He arrived at Cap-Français in the evening of October 16, 1790, and proceeded forthwith to Dondon, his native place. As soon


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46 as his arrival became known the colonists took the necessary steps to secure his arrest. From Dondon Ogé went to Grande-Rivière to the house of Jean-Baptiste Chavanne. Of a practical mind, Chavanne was firmly convinced that nothing would be obtained from the whites by persuasion only. He therefore advised an immediate uprising of the slaves. Ogé deemed this plan too radical. In consequence, on October 21, he wrote to Count Peinier, then Governor of the island, saying that he had come to secure the application of the Decree of March, 1790, and that, in order to put an end to an unjust and absurd prejudice, he would, in case of need, repel force by force. As a result of this step, and in spite of his threat, a price was set upon his head, and 800 soldiers were despatched against him. Ogé had only 250 followers. The first encounter was favorable to him. But new forces sent from Cap-Français defeated his small army. He succeeded, with Chavanne and a few companions, in reaching the Spanish part of the island. The Governor, Don Joachim Garcia, had the cruelty to give them up to the government of Saint-Domingue. After a so-called trial, Ogé and Chavanne, to whom even the assistance of a lawyer was denied, were sentenced "whilst alive to have their arms, legs, thighs and spines broken; and afterward to be placed on a wheel, their faces toward Heaven, and there to stay as long as it would please God to preserve their lives; and when dead, their heads were to be cut off and exposed on poles, Vincent Ogé's on the highway leading to Dondon, and Chavanne's on the road to La Grande Rivière, opposite the estate of Poisson." This barbarous sentence was executed in all its horror on February 25, 1791. The northern provincial assembly gathered together in state to witness this inhuman punishment. Ogé and Chavanne, hacked


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232, but kind Indians are mostly lazy, and reputed simple—at all events, are seldom chiefs; chiefs among the red men being taken from the active, and those accounted wise. Hence, with small promotion, kind Indians have but proportionate influence. And kind Indians may be forced to do unkind biddings. So "beware the Indian, kind or unkind," said Daniel Boone, who lost his sons by them. But, have all you backwoods men been some way victimized by Indians?—No.—Well, and in certain cases may not at least some few of you be favored by them?—Yes, but scarce one among us so self-important, or so selfish-minded, as to hold his personal exemption from Indian outrage such a set-off against the contrary experience of so many others, as that he must needs, in a general way, think well of Indians; or, if he do, an arrow in his flank might suggest a pertinent doubt.

" 'In short,' according to the judge, 'if we at all credit the backwoodsman, his feeling against Indians, to be taken aright, must be considered as being not so much on his own account as on others', or jointly on both accounts. True it is, scarce a family he knows but some member of it, or connection, has been by Indians maimed or scalped. What avails, then, that some one Indian, or some two or three, treat a backwoodsman friendly-like? He fears me, he thinks. Take my rifle from me, give him motive, and what will come? Or if not so, how know I what involuntary preparations may be going on in him for things as unbeknown in present time to him as me—a sort of chemical preparation in the soul

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Rh for malice, as chemical preparation in the body for malady.'

"Not that the backwoodsman ever used those words, you see, but the judge found him expression for his meaning. And this point he would conclude with saying, that, 'what is called a "friendly Indian" ' is a very rare sort of creature; and well it was so, for no ruthlessness exceeds that of a "friendly Indian" turned enemy. A coward friend, he makes a valiant foe.

" 'But, thus far the passion in question has been viewed in a general way as that of a community. When to his due share of this the backwoodsman adds his private passion, we have then the stock out of which is formed, if formed at all, the Indian-hater par excellence.' "The Indian-hater par excellence the judge defined to be one 'who, having with his mother's milk drank in small love for red men, in youth or early manhood, ere the sensibilities become osseous, receives at their hand some signal outrage, or, which in effect is much the same, some of his kin have, or some friend. Now, nature all around him by her solitudes wooing or bidding him muse upon this matter, he accordingly does so, till the thought develops such attraction, that much as straggling vapors troop from all sides to a storm-cloud, so straggling thoughts of other outrages troop to the nucleus thought, assimilate with it, and swell it. At last, taking counsel with the elements, he comes to his resolution. An intenser Hannibal, he makes a vow, the hate of which is a vortex from whose suction scarce the

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234 remotest chip of the guilty race may reasonably feel secure. Next, he declares himself and settles his temporal affairs. With the solemnity of a Spaniard turned monk, he takes leave of his kin; or rather, these leave-takings have something of the still more impressive finality of death-bed adieus. Last, he commits himself to the forest primeval; there, so long as life shall be his, to act upon a calm, cloistered scheme of strategical, implacable, and lonesome vengeance. Ever on the noiseless trail; cool, collected, patient; less seen than felt; snuffing, smelling—a Leather-stocking Nemesis. In the settlements he will not be seen again; in eyes of old companions tears may start at some chance thing that speaks of him; but they never look for him, nor call; they know he will not come. Suns and seasons fleet; the tiger-lily blows and falls; babes are born and leap in their mothers' arms; but, the Indian-hater is good as gone to his long home, and "Terror" is his epitaph.'

"Here the judge, not unaffected, would pause again, but presently resume: 'How evident that in strict speech there can be no biography of an Indian-hater par excellence, any more than one of a sword-fish, or other deep-sea denizen; or, which is still less imaginable, one of a dead man. The career of the Indian-hater par excellence has the impenetrability of the fate of a lost steamer. Doubtless, events, terrible ones, have happened, must have happened; but the powers that be in nature have taken order that they shall never become news.

"'But, luckily for the curious, there is a species of diluted Indian-hater, one whose heart proves not so steely

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Rh as his brain. Soft enticements of domestic life too often draw him from the ascetic trail; a monk who apostatizes to the world at times. Like a mariner, too, though much abroad, he may have a wife and family in some green harbor which he does not forget. It is with him as with the Papist converts in Senegal; fasting and mortification prove hard to bear.'

"The judge, with his usual judgment, always thought that the intense solitude to which the Indian-hater consigns himself, has, by its overawing influence, no little to do with relaxing his vow. He would relate in stances where, after some months' lonely scoutings, the Indian-hater is suddenly seized with a sort of calenture; hurries openly towards the first smoke, though he knows it is an Indian's, announces himself as a lost hunter, gives the savage his rifle, throws himself upon his charity, embraces him with much affection, imploring the privilege of living a while in his sweet companionship. What is too often the sequel of so distempered a procedure may be best known by those who best know the Indian. Upon the whole, the judge, by two and thirty good and sufficient reasons, would maintain that there was no known vocation whose consistent following calls for such self-containings as that of the Indian-hater par excellence. In the highest view, he considered such a soul one peeping out but once an age.

"For the diluted Indian-hater, although the vacations he permits himself impair the keeping of the character, yet, it should not be overlooked that this is the man who, by his very infirmity, enables us to form surmises,

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236 however inadequate, of what Indian-hating in its perfection is."

"One moment," gently interrupted the cosmopolitan here, "and let me refill my calumet."

Which being done, the other proceeded:—

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Rh to death, bore their sufferings stoically. For many months following, their unfortunate companions were hunted and when caught were hanged. The method employed for quelling the insurrection was savage and merciless. But the revenge soon to be taken equalled in mercilessness the acts which provoked it. Before the end of 1791 the colonists were to begin to expiate their crimes. Remaining still haughty and full of pride they imagined that the martyrdom of Ogé and Chavanne would so intimidate the "affranchis" that they would not dare to renew the struggle. As a matter of fact, after Ogé's defeat, the free blacks and mulattoes of the South, who, under the leadership of André Rigaud, had gathered on the plantation of Prou, willingly laid down their arms. But this proved to be only a truce. The colored men wanted time in which to form and to mature their plans. Ogé's fate made it clear to them that by force alone they would conquer the power of exercising the political rights which they had vainly endeavored to acquire peacefully. Tranquilized by their recent victory and the apparent submission of the "affranchis," the wealthy planters began to renew their intrigues against the colonial government. Two battalions, sent from France with a view to helping to maintain order in Saint-Domingue, arrived at Port-au-Prince on March 2, 1791. The friends of the former Colonial Assembly of Saint-Marc, which had been severely arraigned by the National Assembly in a resolution adopted on October 12, 1790, won over the soldiers to their cause. The latter landed in Port-au-Prince in disobedience to the orders given them by the Governor-General, Mr. de Blanchelande. The city was in open rebellion. The prison was stormed. André Rigaud, Pinchinat, and some other "affranchis" who were then in jail were set free. Mr. de Blanchelande left hastily for Cap-Français. The colonists murdered Colonel Mauduit, whose fidelity to the colonial government had displeased them; his body was mutilated and his head, stuck on the end of a pole, was


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" to mention the man to whose story all thus far said was but the introduction, the judge, who, like you, was a great smoker, would insist upon all the company taking cigars, and then lighting a fresh one himself, rise in his place, and, with the solemnest voice, say—'Gentlemen, let us smoke to the memory of Colonel John Moredock;' when, after several whiffs taken standing in deep silence and deeper reverie, he would resume his seat and his discourse, something in these words:

" 'Though Colonel John Moredock was not an Indian-hater par excellence, he yet cherished a kind of sentiment towards the red man, and in that degree, and so acted out his sentiment as sufficiently to merit the tribute just rendered to his memory.

" 'John Moredock was the son of a woman married thrice, and thrice widowed by a tomahawk. The three successive husbands of this woman had been pioneers, and with them she had wandered from wilderness to wilderness, always on the frontier. With nine children,

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48 carried through the streets of Port-au-Prince. They usurped the authority and organized a municipality which they called the Western Provincial Assembly. Whilst the whites were creating this disturbance of the peace at Saint-Domingue, the National Assembly, uneasy concerning the vengeance of the blacks which would most likely follow the inhuman punishment of Ogé and Chavanne, agreed that the time had come for granting some concessions to the "affranchis." Therefore on May 15, 1791, a decree was adopted stating that free-born colored men would henceforth be eligible to the provincial assemblies. This news upon reaching Saint-Domingue at the end of June, 1791, provoked great excitement. The "affranchis," thinking once more that at last they had acquired the rights which they had been claiming with so much perseverance, showed the wildest enthusiasm; but the whites, whose indignation knew no bounds, protested vigorously against this step; they even went so far as to implore the protection of the English. And pretending that the decree of May 15 had not been officially notified to the Governor of the island, they hastened to elect a new Colonial Assembly with power to regulate the political condition of the "affranchis."

The blacks and mulattoes, regarding this action as a challenge, decided to resort to arms. Having gained wisdom from Ogé's misfortune the "affranchis" this time did not trust to chance. On August 7, 1791, they held a meeting in the church of Mirebalais and appointed a committee of forty members, of which Pierre Pinchinat was elected president. Whilst this political council was striving to obtain from Mr. de Blanchelande the fair application of the decree of May 15, the colored men of


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238 she at last found herself at a little clearing, afterwards Vincennes. There she joined a company about to remove to the new country of Illinois. On the eastern side of Illinois there were then no settlements; but on the west side, the shore of the Mississippi, there were, near the mouth of the Kaskaskia, some old hamlets of French. To the vicinity of those hamlets, very innocent and pleasant places, a new Arcadia, Mrs. Moredock's party was destined; for thereabouts, among the vines, they meant to settle. They embarked upon the Wabash in boats, proposing descending that stream into the Ohio, and the Ohio into the Mississippi, and so, northwards, towards the point to be reached. All went well till they made the rock of the Grand Tower on the Mississippi, where they had to land and drag their boats round a point swept by a strong current. Here a party of Indians, lying in wait, rushed out and murdered nearly all of them. The widow was among the victims with her children, John excepted, who, some fifty miles distant, was following with a second party.

" 'He was just entering upon manhood, when thus left in nature sole survivor of his race. Other youngsters might have turned mourners; he turned avenger. His nerves were electric wires—sensitive, but steel. He was one who, from self-possession, could be made neither to flush nor pale. It is said that when the tidings were brought him, he was ashore sitting beneath a hemlock eating his dinner of venison—and as the tidings were told him, after the first start he kept on eating, but slowly and deliberately, chewing the wild news

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Rh with the wild meat, as if both together, turned to chyle, together should sinew him to his intent. From that meal he rose an Indian-hater. He rose; got his arms, prevailed upon some comrades to join him, and without delay started to discover who were the actual transgressors. They proved to belong to a band of twenty renegades from various tribes, outlaws even among Indians, and who had formed themselves into a maurauding crew. No opportunity for action being at the time presented, he dismissed his friends; told them to go on, thanking them, and saying he would ask their aid at some future day. For upwards of a year, alone in the wilds, he watched the crew. Once, what he thought a favorable chance having occurred—it being midwinter, and the savages encamped, apparently to remain so—he anew mustered his friends, and marched against them; but, getting wind of his coming, the enemy fled, and in such panic that everything was left behind but their weapons. During the winter, much the same thing happened upon two subsequent occasions. The next year he sought them at the head of a party pledged to serve him for forty days. At last the hour came. It was on the shore of the Mississippi. From their covert, Moredock and his men dimly descried the gang of Cains in the red dusk of evening, paddling over to a jungled island in mid-stream, there the more securely to lodge; for Moredock's retributive spirit in the wilderness spoke ever to their trepidations now, like the voice calling through the garden. Waiting until dead of night, the whites swam the river, towing after them a raft laden

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240 with their arms. On landing, Moredock cut the fastenings of the enemy's canoes, and turned them, with his own raft, adrift; resolved that there should be neither escape for the Indians, nor safety, except in victory, for the whites. Victorious the whites were; but three of the Indians saved themselves by taking to the stream. Moredock's band lost not a man.

" 'Three of the murderers survived. He knew their names and persons. In the course of three years each successively fell by his own hand. All were now dead. But this did not suffice. He made no avowal, but to kill Indians had become his passion. As an athlete, he had few equals; as a shot, none; in single combat, not to be beaten. Master of that woodland-cunning enabling the adept to subsist where the tyro would perish, and expert in all those arts by which an enemy is pursued for weeks, perhaps months, without once suspecting it, he kept to the forest. The solitary Indian that met him, died. When a murder was descried, he would either secretly pursue their track for some chance to strike at least one blow; or if, while thus engaged, he himself was discovered, he would elude them by superior skill.

" 'Many years he spent thus; and though after a time he was, in a degree, restored to the ordinary life of the region and period, yet it is believed that John Moredock never let pass an opportunity of quenching an Indian. Sins of commission in that kind may have been his, but none of omission.

" 'It were to err to suppose,' the judge would say, 'that this gentleman was naturally ferocious, or peculiarly

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