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August 5-Arkansas detached from the fourth military district and attached to the department of Louisiana.

1869, March 23-All offices held by persons unable to take the test-oath and whose disabili

ties have not been removed declared vacant.

April 9-Annuls an act of the legislature of Mississippi of 1867 in regard to poll-tax, fixing it at one dollar instead of two. No city or town allowed to levy a poll-tax.

April 27-Ordered that all persons, without respect to race, color, or previous condition of servitude, who possess the qualifications prescribed by article 135, page 499, of the Revised Code of 1857, shall be competent jurors.

Fifth Military District-Louisiana and Texas. 1868, July 9-Legislature of Louisiana fied the XIVth constitutional amendment. July 13-Military rule withdrawn from Louisiana.

August 4-Louisiana detached from the fifth military district.

in all cases where they may lawfully require assistance, to summon substantial citizens of the county, whose social and material interests are involved in the peace and prosperity of the community, without reference to their political opinions.

"For like reasons, no person who is personally or pecuniarily interested in any issue to be tried will hereafter be deputed to serve or be summoned to aid in the service of any legal process connected with the particular cause of action."

HEADQ'RS FIFTH MILITARY DISTRICT,
AUSTIN, TEXAS, April 7, 1869.

General Orders, No. 68.

The provisions of chapter 63, general laws of the 11th legislature, State of Texas, passed Ocrati-tober 27, 1866, are so modified, that hereafter no county judge or county court shall apprentice any child whose relatives, either by consanguinity or affinity, take such care of it as to prevent its becoming a charge upon the public; and in every case where a child has been apprenticed by the county court since the 19th day of June, 1865, the indentures shall be cancelled by the court that ordered them, when the relatives of such child, either by consanguinity or affinity, apply to the county court for the custody and care of it.

September 18-The constitutional convention of the State of Texas, on the 25th day of August, 1868, levied a tax of one-fifth of one per cent. on the assessment of 1868; which tax the assessors and collectors now have instructions to col lect. It is hereby ordered that the tax be promptly paid. Any obstruction or resistance to the collection of said tax will be a violation of the law of Congress, and as such will be punished by military authority.

September 29-No election for electors of President and Vice President of the United States will be held in the State of Texas on the 3d of November next. Any assemblages, proceedings, or acts for such purposes are hereby prohibited, and all citizens are admonished to remain at home, or attend to their ordinary business on that day.

November 4-General Reynolds removed from command. General E. R. S. Canby assigned to the fifth military district.

December 7-The constitutional convention reassembled,

1869, January 16-Divided the State into posts, giving instructions as to the duties of the commanding officers of each, and calling on all good citizens to unite in enforcing the law and establishing a good government.

January 20-Forbids all military interference where civil power is sufficient to insure justice and order, and requires all things to be done as nearly in accordance with the laws of the States as may be, and promises the support of the military in every case of need to the civil authorities. January 21-Authorizes post commanders to admit to bail persons not subject to Articles of War held in military arrest. Prescribes the form

of bond.

It is further ordered, that the bond required by section 5 of said act shall, in addition to the conditions therein prescribed, provide for the tuition of such child in some private or public school for three months in every year of the apprenticeship.

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In any case where a sale of real estate may be made under execution or other judicial process, or under a mortgage or deed of trust," and the proceeds of such sale are for the benefit of the State of Texas, the Governor and attorney general may direct that such real estate shall be bid in for the State, if in their judgment the interest of the State will thereby be promoted; and the deed in such case shall be executed to the State of Texas in the same manner and with like effect as if the purchase had been made by an individual.

The State of Texas shall in no case be required to give any bond or other security in the prosecution of its suits or remedies in the courts of the State.

The operation of the act of the 11th legislature of Texas, providing "for the education of indigent white children of the several counties of the State," passed November 12, 1866, is hereby suspended until the legislature shall provide for an equal system of common schools. All moneys collected for the purposes named in the act above cited, and not paid out or due under existing contracts or agreements, are hereby directed to be paid to the treasurers "II. The commanding general is advised that of the several counties wherein the same shall in some of the counties of this State it has been have been collected, and said treasurers are dithe practice of the sheriff, in calling for assist-rected and required to receipt and account for ance in the execution of legal process, to summon the same as by law required with reference to only persons who are of the same political party. other moneys not applicable to any special fund The administration of justice should not only be or purpose. impartial, but its agents should be free from the suspicion of political or partisan bias; and it is made the duty of all sheriffs and peace officers

By command of Bvt. Maj. Gen. E. R. S. Canby:
LOUIS V. CAZIARC.
A. D. C. A. A. A. G.

April 8-Gen. Canby relinquished command, | year next preceding an election, and the last six and Gen. J. J. Reynolds resumed it.

April 12.-All civil officers in the State who cannot take the test- oath will cease to perform official duties on the 25th instant.

New Constitution of Texas.

The constitution of the State of Texas, adopted by the convention, and to be submitted to a vote of the people at a time to be indicated by the President, contains in the preamble an acknowledgment, with gratitude, of the grace of God in permitting them to make a choice of our form of government.

In the bill of rights are these declarations: That the heresies of nullification and secession, which brought the country to grief, may be eliminated from political discussion, that public order may be restored, private property and human life protected, and the great principles of liberty and equality secured to us and our posterity, we declare that

The Constitution of the United States, and the laws and treaties made and to be made in pursuance thereof, are acknowledged to be the supreme law; that this constitution is framed in harmony with and in subordination thereto; and that the fundamental principles embodied herein can only be changed subject to the national authority.

All freemen, when they form a social compact, have equal rights, and no man or set of men is entitled to exclusive separate public emoluments or privileges.

No law shall be passed depriving a party of any remedy of the enforcement of a contract which existed when the contract was made.

No person shall ever be imprisoned for debt. No citizen of this State shall be deprived of life, property, or privileges, outlawed, exiled, or in any manner disfranchised, except by due course of the law of the land.

Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed; nor shall the law of primogeniture or entailment ever be in force in this State.

The equality of all persons before the law is herein recognized, and shall ever remain invio late; nor shall any citizen ever be deprived of any right, privilege, or immunity, nor be exempted from any burdens or duty, on account of race, color, or previous condition.

Importations of persons under the name of "coolies," or any other designation, or the adoption of any system of peonage, whereby the helpless and unfortunate may be reduced to partial bondage, shall never be authorized or tolerated by the laws of the State; and neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall ever exist in the State.

Every male person who shall have attained the age of twenty-one years, and who shall be (or who shall have declared his intention to become) a citizen of the United States, or who is at the time of the acceptance of this constitution by the Congress of the United States a citizen of Texas, and shall have resided in the State one

months within the district or county in which he offers to vote and is duly registered, (Indians not taxed excepted,) shall be deemed a qualified elector; and should such qualified elector happen to be in any other county, situated in the district in which he resides, at the time of an election, he shall be permitted to vote for any district officer; provided that the qualified elector shall be permitted to vote anywhere in the State for State officers; and provided further, that no soldier, seaman, or marine in the army or navy of the United States shall be entitled to vote at any election created by this constitution. Senators shall be chosen for six years, and representatives for two. The governor for four. The legislature shall not authorize any lottery, and shall prohibit the sale of lottery tickets. It shall be the duty of the legislature to immediately expel from the body any member who shall receive or offer a bribe, or suffer his vote influenced by promise of preferment or reward; and every person so offending and so expelled shall thereafter be disabled from holding any office of honor, trust, or profit in this State.

The legislature shall proceed, as early as practicable, to elect senators to represent this State in the Senate of the United States; and also provide for future elections of representatives to the Congress of the United States; and on the second Tuesday after the first assembling of the legislature after the ratification of this constitution the legislature shall proceed to ratify the XIIIth and XIVth articles of amendment to the Constitution of the United States of America.

The governor may at all times require information in writing from all the officers of the executive department on any subject relating to the duties of their offices, and he shall have a general supervision and control over them. He shall have the power of removal of each of said officers, except the lieutenant governor, for misfeasance, malfeasance, or nonfeasance: but the reasons and causes of such removal shall be communicated in writing by him to the senate at the first meeting of the legislature which occurs after such removal, for its approval or disapproval; if disapproved by the senate, it may restore the displaced incumbent by a vote of that body.

The governor has the veto power, subject to an overriding vote of two-thirds of each House. The supreme judges to be appointed by the governor, with approval of the senate, to serve for nine years.

Every male citizen of the United States, of the age of twenty-one years and upwards, not laboring under the disabilities named in this constitution, without distinction of race, color, or former condition, who shall be a resident of this state at the time of the adoption of this constitution, or who shall hereafter reside in this State one year, and in the county in which he offers to vote sixty days next preceding any election, shall be entitled to vote for all officers that are now or hereafter may be elected by the people, and upon all questions submitted to the electors at any election; provided, that no person shall be allowed to vote or hold office who is now or hereafter may be disqualified thereby by the Constitution of the United States,

until such disqualification shall be removed by | from time to time thereafter, as may be found the Congress of the United States; provided, necessary,) provide all needful rules and regulafurther, that no person while kept in any tions for the purpose of carrying into effect the asylum, or confined in prison, or who has been provisions of this article. It is made the imperconvicted of felony, or who is of unsound mind, ative duty of the legislature to see to it that all shall be allowed to vote or hold office. the children in the State, within the scholastic age, are without delay provided with ample means of education. The legislature shall annually appropriate for school purposes, and to be equally distributed among all the scholastic population of the State, the interest accruing on the school fund and the income derived from taxation for school purposes, and shall, from time to time, as may be necessary, invest the principal of the school fund in the bonds of the United States Government, and in no other security.

It shall be the duty of the legislature of the State to make suitable provisions for the support and maintenance of a system of public free schools, for the gratuitous instruction of all the inhabitants of this State between the ages of six and eighteen years.

The legislature shall establish a uniform system of public free schools throughout the State. The legislature at its first session (or as soon thereafter as may be possible) shall pass such laws as will require the attendance on the pub lic free schools of the State of all the scholastic population thereof for the period of at least four months of each and every year; provided, that whenever any of the scholastic inhabitants may be shown to have received regular instruction for said period of time in each and every year from any private teacher having a proper certificate of competency, this shall exempt them from the operation of the laws contemplated by this section.

To every head of a family, who has not a homestead, there shall be donated one hundred and sixty acres of land out of the public domain, upon the condition that he will select, locate, and occupy the same for three years, and pay the office fees on the same. To all single men twenty-one years of age there shall be donated eighty acres of land out of the public domain, upon the same terms and conditions as are imposed upon the head of a family.

As a basis for the establishment and endow- Members of the legislature, and all officers, ment of said public free schools, all the funds, before they enter upon the duties of their offices, lands, and other property heretofore set apart shall take the following oath or affirmation: "I and appropriated for the support and mainte- (A. B.) do solemnly swear (or affirm), that I will nance of public schools shall constitute the public faithfully and impartially discharge and perform school fund; and all sums of money that may all duties incumbent on me as —, according come to this State hereafter from the sale of any to the best of my skill and ability, and that portion of the public domain of the State of will support the Constitution and laws of the Texas shall also constitute a part of the public United States and of this State. And I do further school fund. And the legislature shall appro- swear (or affirm), that since the acceptance of priate all the proceeds resulting from sales of this constitution by the Congress of the United public lands of this State to such public school States, I, being a citizen of this State, have not fund. And the legislature shall set apart, for fought a duel with deadly weapons, or comthe benefit of public schools, one fourth of the mitted an assault upon any person with deadly annual revenue derivable from general taxation, weapons, or sent or accepted a challenge to fight and shall also cause to be levied and collected a duel with deadly weapons, or acted as second an annual poll-tax of one dollar on all male in fighting a duel, or knowingly aided or aspersons in this State between the ages of twenty-sisted any one thus offending, either within the one and sixty years for the benefit of public schools. And said fund and the income derived therefrom, and the taxes herein provided for school purposes, shall be a perpetual fund, to be applied, as needed, exclusively for the education of all the scholastic inhabitants of this State, and no law shall ever be made appropriating such fund for any other use or purpose whatever. The legislature shall, if necessary, in addition to the income derived from the public school fund and from the taxes for school purposes provided for in the foregoing section, provide for the raising of such amount, by taxation, in the several school districts in the State, as will be necessary to provide the necessary school-houses in each district and insure the education of all the scholastic inhabitants of the several districts.

State or out of it; that I am not disqualified from holding office under the 14th amendment to the Constitution of the United States, (or, as the case may be, my disability to hold office under the XIV amendment to the Constitution of the United States has been removed by act of Congress;) and, further, that I am a qualified elector in this State."

Laws shall be made to exclude from office, serving on juries, and from the right of suffrage, those who shall hereafter be convicted of bribery, perjury, forgery, or other high crimes. The privilege of free suffrage shall be supported by laws regulating elections, and prohibiting under adequate penalties all undue influence thereon from power, bribery, tumult, or other improper practice.

The legislature shall provide by law for the The public lands heretofore given to counties compensatiou of all officers, servants, agents, shall be under the control of the legislature, and and public contractors, not provided for by this may be sold under such regulations as the legis- constitution, and shall not grant extra compenlature may prescribe, and in such case the pro-sation to any officer, agent, servant, or public ceeds of the same shall be added to the public school fund.

The legislature shall, at its first session, (and

contractor, after such public service shall have been performed, or contract entered into for the performance of the same; nor grant, by appro

D

priation or otherwise, any amount of money | shall not be construed to inhibit the authorities

out of the treasury of the State, to any individual, on a claim, real or pretended, where the same shall not have been provided for by preexisting law.

General laws, regulating the adoption of children, emancipation of minors, and the granting of divorces, shall be made; but no special law shall be enacted relating to particular or individual cases.

The rights of married women to their separate property, real and personal, and the increase of the same, shall be protected by law; and mar ried women, infants, and insane persons, shall not be barred of their rights of property by adverse possession or law of limitation of less than seven years from and after the removal of each and all of their respective legal disabilities.

The legislature shall have power, and it shall be their duty, to protect by law from forced sale a certain portion of the property of all heads of families. The homestead of a family, not to exceed two hundred acres of land, (not included in a city, town, or village,) or any city, town, or village lot or lots, not to exceed five thousand dollars in value at the time of their designation as a homestead, and without reference to the value of any improvements thereon, shall not be subject to forced sales for debts, except they be for the purchase thereof, for the taxes assessed thereon, or for labor and materials expended thereon; nor shall the owner, if a married man, be at liberty to alienate the same unless by the consent of the wife, and in such manner as may be prescribed by law.

All persons who at any time heretofore lived together as husband and wife, and both of whom, by the law of bondage, were precluded from the rites of matrimony, and continued to live together until the death of one of the parties, shall be considered as having been legally married, and the issue of such cohabitation shall be deemed legitimate, and all such persons as may be now living together in such relation shall be considered as having been legally married, and the

children heretofore or hereafter born of such cohabitations shall be deemed legitimate.

No minister of the Gospel, or priest of any denomination whatever, who accepts a seat in the legislature as representative, shall, after such acceptance, be allowed to claim exemption from military service, road duty, or serving on juries, by reason of his said profession.

The ordinance of the convention passed on the first day of February, A. D. 1861, commonly known as the ordinance of secession, was in contravention of the Constitution and laws of the United States, and therefore null and void from the beginning; and all laws and parts of laws founded upon said ordinance were also null and void from the date of their passage. The legislatures which sat in the State of Texas from the 18th day of March, A. D. 1861, until the 6th day of August, A. D. 1866, had no constitutional authority to make laws binding upon the people of the State of Texas: Provided, That this section

of this State from re pecting and enforcing such rules and regulations as were prescribed by the said legislatures which were not in violation of the Constitution and laws of the United States, or in aid of the rebellion against the United States, or prejudicial to citizens of this State who were loyal to the United States, and which have been actually in force or observed in Texas during the above period of time, nor to affect prejudicially private rights which may have grown up under such rules and regulations, nor to invalidate official acts not in aid of the rebellion against the United States during said period of time. The legislature which assembled in the city of Austin on the 6th day of August, A. D. 1866, was provisional only, and its acts are to be respected only so far as they were not in violation of the Constitution and laws of the United States, or were not intended to reward those who participated in the rebellion or discriminate between citizens on account of race or color, or to operate prejudicially to any class of citizens.

All debts created by the so-called State of Texas from and after the 28th day of January, A. D. 1861, and prior to the 5th day of August, 1865, were and are null and void, and the legis lature is prohibited from making any provision for the acknowledgment or payment of such debts. All unpaid balances, whether of salary, per diem, or monthly allowance due to employees of the State, who were in the service thereof on the said 28th day of January, 1861, civil or military, and who gave their aid, countenance, or support to the rebellion then inaugurated against the Government of the United States, or turned their arms against the said Government, thereby forfeited the sums severally due to them. All the ten per cent. warrants issued for military services, and exchanged during the rebellion at the treasury for non-interest warrants, are hereby declared to have been fully paid and discharged: Provided, That any loyal person, or his or her heirs or legal representatives, may, by proper legal proceedings, to be commenced within two years after the acceptance of this constitution by the Congress of the United States, show proof in avoidance of any contract made or revise or annul any decree or judgment rendered since the said 28th day of January, 1861, when, through fraud practiced or threats of violence used towards such persons, no adequate consideration for the contract has been received; or when, through absence from the State of such person, or through political prejudice against such person, the decision complained of was not fair or impartial.

All the qualified voters of each county shall also be qualified jurors of such county.

Four congressional districts are established, to continue till otherwise provided by law.

The election on the adoption of the constitution to be held on the first Monday in July, 1869, at the places and under the regulations to be prescribed by the commanding general of the military district.

XLV.

JUDICIAL DECISIONS, AND THE OPINION OF THE ATTORNEY GENERAL OF THE UNITED STATES ON THE JURISDICTION OF MILITARY COMMISSIONS.

SUPREME COURT OF THE UNITED STATES. | transported, and the payment of the tax to the sheriff or other proper officer.

On the Right of a State to Tax Passengers Passing through it.

No. 85, DECEMBER TERM, 1867.

William H. Crandall, pl'ff in error,] In error to the supreme court of

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The State of Nevada.

the State of Ne

vada.

Mr. Justice Miller delivered the opinion of the

court.

The question for the first time presented to the court by this record is one of importance. The proposition to be considered is the right of a State to levy a tax upon persons residing in the State who may wish to get out of it, and upon persons not residing in it who may have occasion to pass through it.

It is to be regretted that such a question should be submitted to our consideration with neither brief nor argument on the part of plaintiff in error. But our regret is diminished by the reflection, that the principles which must govern its determination have been the subject of much consideration in cases heretofore decided by this court.

The plaintiff in error, who was the agent of a stage company engaged in carrying passengers through the State of Nevada, was arrested for refusing to report the number of passengers that had been carried by the coaches of his company, and for refusing to pay the tax of one dollar imposed on each passenger by the law of that State. He pleaded in good form that the law of the State under which he was prosecuted was void, because it was in conflict with the Constitution of the United States; and his plea being overruled, the case came into the supreme court of the State, where it was decided against the claim thus set up under the Federal Con

stitution.

It is claimed by counsel for the State that the tax thus levied is not a tax upon the passenger, but upon the business of the carrier who transports him.

If the act were much more skillfully drawn to sustain this hypothesis than it is, we should be very reluctant to admit that any form of words which had the effect to compel every person traveling through the country by the common and usual modes of public conveyance to pay a specific sum to the State was not a tax upon the right thus exercised. The statute before us is not, however, embarrassed by any nice difficulties of this character. The language which we have just quoted is, that there shall be levied and collected a capitation tax upon every person leaving the State by any railroad or stage-coach, and the remaining provisions of the act, which refer to this tax, only provide a mode of collecting it. The officers and agents of the railroad companies and the proprietors of the stagecoaches are made responsible for this, and so become the collectors of the tax.

We shall have occasion to refer hereafter somewhat in detail to the opinions of the judges of this court in the Passenger Cases, 7 Howard, in which there were wide differences on several points involved in the case before us. In the case from New York then under consideration the statute provided that the health commissioner should be entitled to demand and receive from the master of every vessel that should arrive in the port of New York from a foreign port $1 50 for every cabin passenger and $1 for each steerage passenger, and from each coasting vessel twenty-five cents for every person on board. That statute does not use language so strong as the Nevada statute, indicative of a personal tax on the passenger, but merely taxes the master The provisions of the statute charged to be in of the vessel according to the number of his violation of the Constitution are to be found in passengers; but the court held it to be a tax sections 90 and 91 of the revenue act of 1865, upon the passenger, and that the master was the page 271 of the statutes of Nevada for that agent of the State for its collection. Chief Jusyear. Section 90 enacts, that "there shall be tice Taney, while he differed from the majority levied and collected a capitation tax of one of the court, and held the law to be valid, said dollar upon every person leaving the State by of the tax levied by the analogous statute of any railroad, stage coach, or other vehicle en- Massachusetts, that "its payment is the condigaged or employed in the business of transport- tion upon which the State permits the alien pasing passengers for hire;" and that the proprie- senger to come on shore and mingle with its tors, owners, and corporations so engaged shall citizens and to reside among them. It is depay said tax of one dollar for each and everymanded of the captain, and not from every sepperson so conveyed or transported from the State. Section 91, for the purpose of collecting the tax, requires from persons engaged in such business, or their agents, a report every month, under oath, of the number of passengers so

arate passenger, for convenience of collection. But the burden evidently falls upon the passenger, and he in fact pays it, either in the enhanced price of his passage or directly to the captain before he is allowed to embark for the voyage.

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