nevertheless, in the sovereign, who may assert them whenever it is deemed proper.

Congress, in passing the act of March 12, 1863, in relation to and abandoned property," proceeded upon this ground.

captured

The doctrines thus laid down are in accordance with those of all approved publicists. (See the authorities cited by the authors from whom we have quoted.)

There can be no doubt that the facts, as found, bring this case within these authorities. The commanding general caused the cotton to be seized and brought within his lines. He had a firm possession of it there for more than the requisite time. There is no question as to the right of postliminy. The possession by both the general and the purchaser was unchallenged by the enemy. The purchaser conveyed the property to New York, and there

sold it.

Under the law arising upon these facts there can be but one result.

We hold the second objection fatal, also, to the right of the plantiff to recover in this action. If he has any right which can be recognized, it is against the government, and must be asserted elsewhere.

Judgment must be entered for the defendant, with costs.

TRIALS FOR CRIMES AGAINST THE UNITED STATES.

Correspondence between President Johnson and Chief Justice Chase. On the 2d of February, 1866, the President communicated the following to the Senate:

To the Senate of the United States:

The accompanying correspondence I herewith transmit, in accordance with the resolution of the 16th ult., requesting the President to communicate to the Senate any correspondence which may have taken place between myself and any of the judges of the Supreme Court touching the holding of civil courts of the United States in insurrectionary States for the trial of crimes against the United States. ANDREW JOHNSON.

EXECUTIVE MANSION,
WASHINGTON, October 2, 1865.

DEAR SIR: It may become necessary that the government prosecute some of the high crimes and misdemeanors committed against the United States within the District of Virginia. Permit me to inquire whether the Circuit Court of the United States for that district is so far organized and in condition to exercise the functions, that yourself or either of the associate justices of the Supreme Court will hold a term of the Circuit Court. there during the autumn or early in the winter for the trial of causes. Very respectfully,

Hon. S. P. CHASE, Chief Justice of Supreme Court.

ANDREW JOHNSON.

WASHINGTON, Thursday Evening,
October 12, 1865.

DEAR SIR: Your letter of the 26th, directed to Cleveland and forwarded to Sandusky, reached me there night before last. I left for Washington yesterday morning, and have just arrived. To your inquiry whether

a term of the Circuit Court of the United States for the District of Virginia will be held by myself or one of the associate justices of the Supreme Court during the autumn or early winter, I respectfully reply in the negative. Under ordinary circumstances, the regular term authorized by Congress would be held on the fourth Monday of November, which this year will be the 27th. Only a week will intervene between that day and the commencement of the annual term of the Supreme Court, when all the judges are required to be in attendance at Washington. That time is too short for the transaction of any very important business.

Were this otherwise, I so much doubt the propriety of holding Circuit Courts of the United States in States which have been declared by the executive and legislative departments of the national government to be in rebellion, and therefore subjected to martial law, before the complete restoration of their broken relations with the nation and the supersedure of military by civil administration, that I am unwilling to hold such courts in such States within my circuit, which includes Virginia, until Congress shall have had an opportunity to consider and act on the whole subject. A civil court in a district under martial law can only act by the sanction and under suspension of the military power; and I cannot think it becomes justices of the Supreme Court to exercise jurisdiction under such conditions. In this view it is proper to say that Mr. Justice Wayne, whose whole circuit is in the rebel States, concurs with me. I have had no opportunity of consulting with the other justices, but the Supreme Court has hitherto declined to consider cases brought before it by appeal or writ of error from Circuit or District Courts in rebel portions of the country. No very reliable inference, it is true, can be drawn from this action, for circumstances have changed since the court adjourned; but, so far as it goes, it favors the conclusion of myself and Justice Wayne.

With great respect, yours very truly,

S. P. CHASE.

CHIEF JUSTICE CHASE TO THE MEMBERS OF THE Bar.

At the opening of the United States Circuit Court at the State Senate Chamber, Raleigh, North Carolina, June 6, 1867, before proceeding to business the Chief Justice made the following remarks:

GENTLEMEN OF THE BAR: Before proceeding to the regular business, I think it proper to address a few observations to you. For more than four years the courts of the Union were excluded from North Carolina by rebellion. When active hostilities ceased in 1865, the national military authority took the place of all ordinary civil jurisdiction, or controlled its exercise. All courts, whether State or national, were subordinated to military supremacy, and acted, when they acted at all, under such limitations, and in such cases, as the commanding general, under the direction of the President, thought fit to prescribe. Their process might be disregarded and their judgments and decrees set aside by military orders. Under these circumstances, the justices of the Supreme Court, allotted to circuits which included the insurgent States, abstained from joining the district judges in holding Circuit Courts. Their attendance was unnecessary, for the district judges were fully authorized by law to hold Circuit Courts without the justices of the Supreme Court, and to exercise complete jurisdiction in trial of all criminal and almost all civil cases; and their attendance was unnecessary

for another reason. Military tribunals at that time, and under existing circumstances, were competent to the exercise of all the jurisdiction, criminal and civil, which belongs, under ordinary circumstances, to the civil courts. Being unnecessary, the justices thought their attendance would be improper and unbecoming. They regarded it as unfit in itself, and injurious in many ways to the public interests, that the highest officers of the judicial department of the government should exercise their jurisdiction under the supervision and control of the executive department. At length, however, military control over the civil tribunals was withdrawn by the President, the writ of habeas corpus, which had been suspended, was restored, and military authority in civil matters abrogated. This was effected mostly by the proclamation of April, 1866, and partly by the proclamation of August 20, 1866. These proclamations reinstated the full authority of the national courts in all matters within their jurisdiction. The justices of the Supreme Court are expected to join the district judges in holding Circuit Courts during the interval between the terms at Washington. On the 23d of July, 1866, however, an act of Congress reduced the number of circuits, and changed materially the districts of which the southern circuits were composed, without waiting or providing for an allotment of the members of the Supreme Court to new circuits, and without such allotment the justices of that court have no circuit jurisdiction. The effect of that act, therefore, was to suspend the authority of the justices to hold Circuit Courts in the altered circuits. This suspension was removed by the act of March 2, 1867, by which the new allotment was authorized. Under this act the justices of the Supreme Court have been again assigned to circuit districts. The chief justice has been allotted to hold with district judges the national court in the circuit in which the district of North Carolina is made a part. I am here, therefore, to join my brother, the district judge, in holding the Circuit Court for this district. It is the first Circuit Court held in any district within the insurgent States at which a justice of the Supreme Court could be present, without disregard of superior duties at the seat of government or usurpation of jurisdiction. The associate justices allotted to the other southern circuits will join in holding courts at the regular terms prescribed by law, and thus the national civil jurisdiction will be fully restored throughout the Union. It is true that military authority is still exercised within these southern circuits, but not now, as formerly, in consequence of the disappearance of local authority, and in supervision or control of all tribunals, whether State or national. It is now used under acts of Congress, and only to prevent illegal violence to personal property, and to facilitate the restoration of every State to equal rights and benefits in the Union. This military authority does not extend in any respect to the courts of the United States. Let us hope that henceforth neither rebellion nor any other occasion for the assertion of any military authority over the courts and justices will hereafter suspend the due course of judicial administration by the national tribunals in any part of the republic.

THE GRAPESHOT, 7 Wallace, 563.

Upon two separate motions to dismiss an appeal from the decree of the Circuit Court of the United States for the District of Louisiana; the decree being one transferred there under act of Congress, from the late so-called "Provisional Court," of that State; both motions being made by Mr. Durant. The ground of the first motion was because the transcript was incomplete, "as appeared by the certificate of the clerk of the lower court, as given in the printed transcript, and because it further appeared by the said certificate, that the missing parts of the record could not be found, so that it was useless to issue a certiorari,” and on the whole impossible for this court to hear and decide the case.

The ground of the second motion was, that the Circuit Court of the United States in Louisiana had rendered no decree from which an appeal could be taken; so that this court was without jurisdiction.

This Provisional Court of Louisiana had been established by proclamation of the President, in October, 1862, when the war of the rebellion had subverted and swept away the courts of the Union, and, by the terms of its constitution, was to last no longer than till the civil authority was restored.

The Chief Justice delivered the opinion of the court.

The first motion to dismiss this appeal is made upon the ground that the transcript of the record is incomplete, because of the omission of certain papers said to have been used in the court below, but not to be found when the transcript was made.

The motion must be denied. Proof that the papers alleged to be wanting were used in the court below, and have been lost, must be made by affidavit. The certificate of the clerk who made the transcript cannot be received as proper evidence of these facts.

The other motion is made upon the ground that the decree below was rendered by the Provisional Court of Louisiana, established by the military authority of the President, during the late rebellion, from which no appeal could be properly taken. But we find, on looking into the statutes, that when the Provisional Court ceased to exist, its judgments and decrees were directed to be transferred into the Circuit Court, and to stand as the judgments and decrees of that court. And it is from the decree of the Circuit Court that the appeal under consideration was taken. As an appeal from that court it was regular, and the motion to dismiss must be denied.

All questions concerning the validity of judgments and decrees of the Provisional Court will remain open until after final hearing. Motions denied.

THE STATE OF TEXAS v. WHITE, 7 Wallace, 702.

For the opinion of the majority of the court in this interesting and important case, the reader is referred to the Reports above cited. The following are the dissenting opinions of the minority of the judges:

Mr. Justice Grier, dissenting.

I regret that I am compelled to dissent from the opinion of the majority of the court on all the points raised and decided in this case.

The first question in order is the jurisdiction of the court to entertain this bill in behalf of the State of Texas.

The original jurisdiction of this court can be invoked only by one of the United States. The Territories have no such right conferred on them by the Constitution, nor have the Indian tribes who are under the protection of the military authority of the government.

Is Texas one of these United States? Or was she such at the time this bill was filed, or since?

This is to be decided as a political fact, not as a legal fiction. This court is bound to know and notice the public history of the nation.

If I regard the truth of history for the last eight years, I cannot discover the State of Texas as one of these United States. I do not think it necessary to notice any of the very astute arguments which have been advanced by the learned counsel in this case, to find the definition of a State, when we have the subject treated in a clear and common sense manner by Chief Justice Marshall in the case of Hepburn & Dundass v. Ellxey.* As the case is short, I hope to be excused for a full report of it, as stated and decided by the court. He says,

"The question is, whether the plaintiffs, as residents of the District of Columbia, can maintain an action in the Circuit Court of the United States for the District of Virginia. This depends on the act of Congress describing the jurisdiction of that court. The act gives jurisdiction to the Circuit Courts in cases between a citizen of the State in which the suit is brought and a citizen of another State. To support the jurisdiction in this case, it must appear that Columbia is a State. On the part of the plaintiff, it has been urged that Columbia is a distinct political society, and is, therefore, a 'State' according to the definition of writers on general law. This is true; but as the act of Congress obviously uses the word 'State' in reference to that term as used in the Constitution, it becomes necessary to inquire whether Columbia is a State in the sense of that instrument. The result of that examination is a conviction that the members of the American Confederacy only are the States contemplated in the Constitution. The House of Representatives is to be composed of members chosen by the people of the several States, and each State shall have at least one representative. The Senate of the United States shall be composed of two senators from each State.' Each State shall appoint, for the election of the executive, a number of electors equal to its whole number of senators and representatives. These clauses show that the word 'State' is used in the Constitution as designating a member of the Union, and excludes from the term the signification attached to it by writers on the law of nations."

Now we have here a clear and well-defined test by which we may arrive at a conclusion with regard to the questions of fact now to be decided.

Is Texas a State, now represented by members chosen by the people of that State and received on the floor of Congress? Has she two senators to represent her as a State in the Senate of the United States? Has her voice been heard in the late election of President? Is she not now held and governed as a conquered province by military force? The act of Congress of March, 2, 1867, declares Texas to be a "rebel State," and provides for its government until a legal and republican State government could be legally established. It constituted Louisiana and Texas the fifth military district, and made it subject, not to the civil authority, but to the "military authorities of the United States."

It is true that no organized rebellion now exists there, and the courts of

* 2 Cranch, 452.