Thomas v. Taylor.

certain persons and property therein named," approved November 16, 1865.

The bill further alleges that the defendant in error tendered to the said B. H. Pitman, the regularly appointed and qualified deputy of the said Samuel Thomas, sheriff and collector, as aforesaid, in payment of the tax due and owing by him on said fifty bales of cotton, a one hundred dollar treasury note of the state of Mississippi, commonly called a cotton note, duly issued by virtue of an act of the legislature of said state, on the day of the date thereof, entitled "An act to be entitled an act authorizing the issuance of treasury notes as advances upon cotton," approved December 19, A. D. 1861. The bill further charges that the said treasury note, so tendered by defendant in error as aforesaid, was and is, by virtue of the said act of the legislature authorizing the issuance of the same, receivable for all taxes then due, or that may thereafter become due, to the state or any county or municipal corporation, except the military tax, and that said act is in full force and virtue, and, by force thereof, the said note so tendered was and is receivable for all state taxes then due or thereafter to become due, except the military tax.

The bill further states that the said Pitman, as deputy sheriff as aforesaid, refused to take the said treasury note in payment of the said taxes, as by law he was bound to do, to the manifest injury, wrong and injustice to the defendant in error.

The bill further charges that the said act of the legislature, approved November 16, A. D. 1865, requiring the plaintiff in error, as collector of taxes, to collect said tax in the currency of the United States, on which the plaintiff in error relies to justify his refusal to receive said treasury note in payment of said tax, is, so far as the said act forbids the receipt of the said treasury note in payment of the said tax, unconstitutional and void, as impairing the obligation of the contract of said state to receive said treasury notes, issued under said statute, approved the 19th December, A. D. 1861, in payment of all taxes then due, or that might thereafter become due, to said state, except said military tax.

And the bill further states that the said Pitman, deputy as aforesaid of plaintiff in error, sheriff and tax collector as aforesaid, having illegally and wrongfully refused to receive said treasury note, tendered as aforesaid, has levied on a part of said cotton to pay and satisfy said tax, and will proceed to sell the same, unless restrained by the proper process of the court. And prays for the ordinary

process, and also for a writ of injunction, to restrain the plaintiff in error, and the said Pitman, and each of them, from selling said cotton for said tax, until the further order of the court, and that upon the final hearing the injunction may be made perpetual; and that the plaintiff in error be decreed to receive the said treasury note in full payment and satisfaction of the taxes due by the defendant in error on said fifty bales of cotton.

At the June term of said court, 1866, the defendants in the court below appeared and demurred to the bill of complaint, for the want of equity on the face of the bill, which demurrer was overruled by the court, and, the defendants declining to answer further to the bill, the same was taken for confessed; and, upon final hearing, the court perpetuated the injunction, and decreed that the plaintiff in error, as tax collector as aforesaid, receive the said treasury note in satisfaction of said tax, and receipt to the defendant in error in full for said tax.

From said decree the plaintiff in error brings the cause to this court by writ of error, and makes the following assignments of error: 1. The court below erred in overruling the demurrer of the defendants to the complainant's bill.

2. The court below erred in rendering final decree for the com plainant.

Wiley P. Harris, C. C. Shackelford and Jasper Myers, for plaintiff in error.

George L. Potter and Johnston & Johnston, for defendant in error.

PEYTON, J. Much learning, research, ingenuity and ability have been displayed by the counsel on each side, on the argument of this cause; and its importance, both with reference to the interesting legal questions and principles involved, and the vast pecuniary interest dependent upon the result, demand the most mature and deliberate consideration of this court. And, in order to a correct understanding of the principles involved in this case, we deem it not improper, on this occasion, to advert for a moment to the nature and character of our system of government. And, in discussing the purely legal questions involved, we adopt as our guide on this occasion the same rule which was laid down for the court in the case of The Louisville and Nashville Railroad v. Davidson, 1 Sneed, 637, where the court says: "If the construction and administration of our laws, supreme

Thomas v. Taylor.

or subordinate, were to be governed by the opinions of judges as to the genius or general principles of republicanism, democracy or liberty, there would be no certainty in the law, no fixed rules of decision. These are proper guides for the legislature, where the constitution is silent, but not for the courts. It is not for the judiciary or executive department to inquire whether the legislature has violated the genius of the government, or the general principles of liberty and the rights of man, or whether their acts are wise and expedient or not, but only whether it has transcended the limits prescribed for it in the constitution. By these alone is the power of that body bounded. That is the touchstone by which all its acts are to be tried; there is no other. It would be a violation of first principles, as well as their oaths of office, for the courts to erect any other standard. There is no higher law than the constitution known to our system of government." So, on the present occasion, it is not for us to inquire whether the provisions of our federal constitution are wise or unwise, but what they are, and what is their true interpretation.

The constitution of the United States is not merely a league of Sovereign states, for their common defense against external and internal violence, but a supreme federal government, acting not only upon the sovereign members of the union, but directly upon all its citizens in their individual and corporate capacities. It was established, as the constitution expressly declares, by "the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to them and their posterity." This constitution, and the laws made in pursuance thereof, and treaties made under the authority of the United States, are declared to be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding. The avowed intention was to supersede the old confederation, and substitute in its place a new form of government. The sad experi ence of the inefficiency of the old confederation, which was a mere league of states, without any cohesive power or energy, forced the people of the states to surrender the league then existing, and to establish a national constitution of gover.iment, which has been the subject of different interpretations, according to political complex ion of parties, with reference to the extent of the powers of the

Thomas v. Taylor.

federal and state governments; yet it is a historical fact, that, although many declarations of rights, many propositions, and many protestations of reserved powers are to be found accompanying the ratifications of the constitution in the various state conventions, sufficiently evincive of the extreme caution and jealousy of those bodies, and of the people at large, there is nowhere to be found the slightest allusion to the instrument as a compact of states in their sovereign capacity, and no reservation of any right, on the part of • any state, to dissolve its connection, or to abrogate its assent, or to suspend the operations of the constitution as to itself. On the contrary, the convention of Virginia, which speaks most distinctly on this subject, and, as we think, most correctly, merely declares "that the powers granted under the constitution, being derived from the people of the United States, may be resumed by them (not by any one of the states), whenever the same shall be perverted to their injury or oppression." Of the right of a majority of the whole people to change their constitution at will, there can be no doubt. And when there is an accumulation of usurpations and abuses, rendering passive obedience and non-resistance a greater evil than resistance and revolution, the form of government may then be changed by successful revolution, an appeal from the canceled obligations of the constitutional compact, to original rights and the law of self-preservation. This is the ultima ratio under all governments, whether consolidated, confederated, or, like ours, a compound of both; and it cannot be doubted that a single member of the Union, in the extremity supposed, but in that only, would have a right, as an extra and ultra constitutional right, to make the appeal The government of the Union, though limited in its powers, is supreme within its sphere of action. The international relations of these states with foreign states are exclusively maintained by it, while their municipal regulations and internal affairs are maintained and conducted by them. The external sovereignty, therefore, of the nation is exclusively vested in the Union, and the independence of the respective states, so far as the legitimate powers of the government of the United States extend, is merged in the Sovereignty of the federal government.

The great question presented by this record is, whether the stare of Mississippi, and the rightful authority which now controls her people, are bound by the acts and engagements of the government which was organized under the ordinance of secession in 1861. and

Thomas v. Taylor.

finally overthrown by the military forces of the United States in 1865. In order to a proper solution of this question, the precise character of that government while it existed should be first ascertained.

At the time of the passage of the ordinance of secession, the state of Mississippi was one of the states of the Union, and her constitution and government constituted part of the machinery by which the government of the United States was carried on and maintained. The government then in existence assisted to form the senate and house of representatives of the United States, and in the election of the president of the United States. The laws of the United States were the supreme laws of the state of Mississippi; and though the government was separate from the governments of the other states, it was not separate from that of the United States: there was an intimate connection between them, and a mutual dependence upon each other.

The government founded on the ordinance of secession was a government without any connection with or dependence on the government of the United States. It denied the authority of the constitution and laws of the United States over the people of Mississippi, who were declared to be no longer a part of the people of the United States. This denial was accompanied by the adoption of a new constitution, in many respects like the old one, but fundamentally different in that feature of it which severed the connection of the government of Mississippi with that of the United States, and in the assertion of the absolute independence of the government of the former. The senators and representatives in the congress of the United States were withdrawn, and all the laws by which the people of Mississippi and the government thereof participated in the government of the United States were abolished.

The government thus set on foot proceeded, in conjunction with other state governments similarly erected and controlled, to form a confederation of states, by adopting a constitution and government for the people of the states so confederating, through the agency of these state governments. The obligations and connections thus formed and incurred were wholly incompatible with those which existed under the government of the United States, of which the new confederacy declared themselves entirely independent. It thus appears very evident that the government of the