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December 1, 1852


IN this cause Mr. Justice Catron was absent, because of indisposition, during the hearing before the court, and took no part in the decision.

This was an appeal from the District Court of the United States for the District of Texas.

The facts in the case are stated in the opinion of the court.

There were several causes of demurrer filed in the court below, but it is necessary to notice only the following, because the decision in this court turned entirely upon them.

1. The said bill, if the facts therein were true, which is in no sort admitted, contains no matter or thing of equity upon which to ground any decree, or give the complainants any aid or relief.

2. The complainants' said bill shows no legal or valid agreement upon which to ask the aid or decree of the court; but, to the contrary, sets out and shows an agreement which was in violation of the neutrality of the United States towards the Republic of Mexico in her contest with Texas.

3. The complainants' said bill seeks the aid or assistance of the court to enforce the specific execution of an agreement made in the State of Kentucky, between citizens thereof and this defendant, in violation of the policy of the government of the United States in her intercourse with foreign governments.

The demurrer was sustained generally by the court below, and therefore all the points were open to argument in this court; but it is not necessary to notice any except those upon which the judgment of the court rested.

It was argued by Mr. Snethen, for the appellants, and there was also a brief filed upon that side by Mr. L. Sherwood. On the part of the appellee it was argued by Mr. Volney E. Howard.

Mr. Snethen contended that the neutrality and foreign policy of the United States towards Mexico were regulated entirely by law, which was found in the 6th section of the act of Congress of the 20th of April, 1818, (3 Stat. at Large, 449.) There is an entire absence, in the contract, of all declaration or indication of the place or county where the proposed military expeditions were to be begun, or of the place whence they were to be carried on. It will not be denied that, to subject an offender to the pains and penalties of this section, it must be incontestably and directly shown and proved that the 'military expedition or enterprise' which he may 'begin or set on foot,' or 'provide or prepare the means for,' was begun or set on foot 'within the territory or jurisdiction of the United States,' and was 'to be carried on from thence' against a nation with whom they were at peace. So obvious a proposition hardly needs the weight of authority to support it. Now the contract proves no such offence. The defendant may have done, and intended to have carried on, all the acts which the complainants enabled him to do, within and from some other country than the United States. The place or country where the forbidden acts were done and whence they were to be carried on, cannot be inferred from the language of the contract with any degree of certainty, and the omission cannot be supplied by any known rule of construction.

The 6th section of the act of 1818, is a penal enactment and must be construed strictly, and the proof to sustain an offence against it must be direct and positive. The contract affords not only no such proof, but no proof at all, that the forbidden acts were done within the United States, and to be carried on from thence. No such offence, therefore, as that denounced by the act, when strictly construed, having been proved against the parties to the contract, the contract itself consequently was not, when made, in violation of the neutrality or foreign policy of this country towards Mexico and other nations, as established and defined by said section and act.

The same courise of argument was pursued by Mr. L. Sherwood in his brief for the appellants.

1. Texas, at the time of this contract, was an independent government. And in making the contract the complainants did not violate the laws of the United States, enacted to preserve our neutrality with nations with whom we were at peace, nor did they violate our treaty of amity with Mexico. Hence, the contract was legal, under the laws of the United States.

The people of Texas, represented by delegates, met in general convention at Washington, in Texas, on the 2d day of March, 1836, and declared themselves a 'Free and Independent Republic.' And then and there set themselves at work to organize and establish a government. And on the 17th day of the same month, had fully organized a government by the name of 'The Republic of Texas,' under a written Constitution. (Laws of Republic of Texas, vol. 1, page 1 to 25.)

Then a new nation was born. An independent nation, that maintained her independence and freedom among the nations of the earth, and was subsequently recognized by them as possessing all the sovereignty and attributes of other nations. As such Republic, she maintained her independence in fact and in name, until she became incorporated into the government of the United States, December 29, 1845.

The first question to be determined by this court is, whether Texas, at the time before stated, had the right to become, and whether she did become an independent government?

That she had the right so to become, will not be doubted by any man, nor by any court, who 'hold these truths to be self-evident that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.'

Such right your honors will not doubt. It was happily incorporated in the first principles of the first truly written international law;–in America, the first law that is learned by the courts or by the bar–learned generally, are professional studies are commenced, and imbibed almost with the first nourishment of the American child.

That Texas, at the time to which I have referred, became entirely severed from the Republic of Mexico, is fully shown by the reference I have made to the first volume of her laws. That she maintained her independence, and was never again subjected to the dominion of Mexico, is a fact, sustained by the history of her struggles, as well as by the history of our own government, and other governments in their negotiations with her.

Although our government had not officially recognized the independence of Texas, at the date of this contract, yet, shortly after that period, official correspondence and intercourse commenced between the United States and the Republic of Texas, and we find a treaty negotiated between the two governments, as early as April, 1838. 8 Stat. at Large, 510.

It is claimed that this contract is void, as being in violation of the laws of the United States, provided for the punishment of persons who shall, within the territory or jurisdiction of the United States, 'begin or set on foot, or provide or prepare, the means for any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince or State, with whom the United States are at peace.'

This is a penal statute, and must be construed strictly. And I respectfully insist, that, while it is the policy of the United States government, to preserve her neutrality between belligerent nations, there is nothing in this law to prevent one of her citizens entering into a contract with a citizen of another independent government for the purchase of land lying in that government, even though it be recited in the contract, that it is the intention of the person selling his lands to use the money he receives for them in raising and equipping volunteers to maintain and advance the independence of his country.

It does not appear, from the bill, that the contract was for the advancement of funds to raise and equip volunteers within the United States, or to carry on war from thence against Mexico. For aught that appears, the design of General Chambers was to raise his volunteers in Texas. And it might as ...

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