Texas v White of 1869 - Case Study Example

Texas v. White (1869)i: Affirming the residual and enduring constitutional authority of the United States in states in rebellion and ascertaining the legitimacy of legislative and administrative acts of governments of such rebellious states during the period in question INTRODUCTION In its decision in Texas v. White (1869), the Supreme Court determined that the post-bellum Texas state government had a right to recover from current holders certain United States bondsii heretofore sold by the secessionist state government in order to raise funds to prosper rebellion against the United States. The Court established that the United States Constitution prevailed and no ‘right of secession’ from the Union existed. Therefore, the ordinance of secession enacted by an insurgent Texas state convention established specifically for that purposeiii was a constitutional nullity, irrespective the fact that it had been ratified by a majority of Texas voters in a special referendum. In addition, the Court held that legislative acts authorizing the disposition of the bonds in question were likewise a nullity and consequent sale of the bonds to original buyers, holders in due course, and bond sales agents was ultra vires and, therefore, likewise a nullity. The gravaman of the case went considerably further than prospectively improper disposition of state property. At issue was the constitutional condition of the state of Texas during the period of rebellioniv and in the aftermath of the collapse of that rebellion and the restoration of national peace. If it were actually the case that Texas had never left the Union, at least in the constitutional sense, then it might logically follow that arguments relating to the degree of ‘restoration’ to the Union were factitious and, more to the point, any military rule imposed by the President and Congress to foster a program of Reconstruction in ostensibly refractory states was likewise constitutionally questionable. Texas v. White was decided by a vote of 5-3. Specifics relating to the background to the case, as well as the majority and minority opinions, are outlined and discussed below. BACKGROUND Establishment of secessionist government in Texas: Unlike other rebellious states—those in which antebellum state governments remained formally intact, albeit shifted in their allegiance away from the United States and to a league organized under the rubric of the Confederate States of America (CSA)—secessionist government in Texas was organized not only without the consent of the existing government but also through the forcible ejection of some of its officers. As briefly described supra, a State Convention, whose legitimacy had been belatedly established by act of the state legislature (January 22, 1861) ratifying the election of delegates to the said Convention, convened on February 1, adopted an Ordinance of Secession (providing for ultimate popular ratification through referendum), and adjourned. However, in the wake of popular ratification, the Convention reassembled on March 14, 1861, assuming the character of a legislative body. It immediately enacted a resolution requiring the officers of the state government to take an oath to support the provisional government of the Confederate States. The resolution further provided that in the case of any state officer who refused to take the said oath his office shall be deemed vacant ‘as though he were dead or had resigned.’ Texas Governor Sam Houston and Texas Secretary of State B. W. Cave, having either refused or omitted to take the required oath, were deposed from office and required to turn over all state papers, archives, and property in their possession to their successors.v (Included in these documents were the bonds whose disposition would eventually lead to the Supreme Court case under discussion.) Sale of certain bonds by the secessionist state of Texas: On January 11, 1862, the Texas legislature passed two acts intended to further the cause of Texas independence from the United States (in particular) and that of the Confederacy (in general). The first established a Military Board with administrative powers relating to the manufacture and procurement of ordnance.vi The second directed the above-described Military Board to dispose of any bonds and coupons that might be found in the state Treasury and use any such funds or proceeds for the defense of the state and, as a corollary, repealed the requirement heretofore present in existing law for an affirming gubernatorial signature (to be executed on each certificate at the state capital—Austin, Texas) to achieve that end.vii Under the authority of the latter act, the Military Board (on January 12, 1865) sold directly to the defendants (White & Chiles, a bond brokerage house, inter aliaviii) 135 of the bonds (with attached coupons), as well as 76 other bonds then on deposit with Droege & Co. in England. (Under the terms of their issuance, the bonds were redeemable after December 31, 1864. It thus appears, given the date of sale, that the Military Board must have been in negotiations with White & Chiles for some time prior.) Plaintiff’s argument: Shortly after the sale of the bonds in question, the (Confederate) Army of the Trans-Mississippi Department (i.e., Texas) surrendered and the principal officers of the insurgent state departed for Mexico, leaving the state in a condition of anarchy. In response, the President issued a proclamation appointing a provisional governor (Andrew J. Hamilton) and directing the formation of a new state government by the people. This reestablished lawful government came into being in 1866 and, in 1867, arguing defect of title on the part of the seller (the Military Board), brought suit to recover the bonds in question, arguing that they were not transferred to Smith & Chiles et al. according to law. (Specifically, they argued that Sam Houston, lawfully elected governor of Texas and subsequently deposed from office under the color of the Convention Ordinance of March 16, 1861, was the only person who could rightfully dispose of the bonds.) The plaintiff (to wit, the state of Texas) claimed a residual ownership of the bonds in question and sought their recovery. The defendants argued essentially that the insurgent government, exercising effective sovereignty during its existence, had an inherent authority to make such a disposition. Further, the defendants argued that they acted in good faith. MAJORITY OPINION IN TEXAS V. WHITE (1869) The Court addressed certain administrative matters. Defendant Chiles argued that “no sufficient authority is shown for the prosecution of the suit [74 U.S. 700, at 719]” and, more important, that Texas, “having severed here relations with a majority of the States in the Union, had having 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 [Id.].” The latter contention was of particular importance, given the language contained in the Constitution, Article III, section 1, to wit, that the Supreme Court serves as a court of first instance in, inter alia, cases in which a state is a party. (Indeed, the gravaman of the suit brought by the post-bellum Texas government inhabits this contention.) Thus, if Texas had ceased to be a state, the Court would lack jurisdiction. In the words of Chief Justice Salmon Chase, “It is not questioned that this court has original jurisdiction of suits by States against citizens of other States [to wit, White & Chiles, et al.], or that States entitled to invoke this jurisdiction must be States of the Union… If, therefore, it is true that the State of Texas was not, at the time of filing this bill [i.e., suit], or is not now, one of the United States, we have no jurisdiction of this suit, and it is our duty to dismiss it [Id.].” The several states defined and national supremacy: Chief Justice Chase turned to the meaning of the word ‘state’ and its constitutional implications in a lengthy excursus on the matter. (This was of particular importance, since it would establish a framework for determining whether Texas had ever ceased to be a state of the United States.) The Chief Justice first addressed the definition of an individual state under the Constitution and the supremacy of the United States. “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 consent of the governed [Id., at 721].” He continued, “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 [Id.].” National supremacy of necessity underlies such prohibitions upon the several states “in respect to the making of treaties, emitting bills of credit, and laying duties of tonnage [Id.].” States and governments distinguished: The Chief Justice then turned to the distinction between a ‘state’ and the ‘government of a state,’ holding that the former is anterior to the latter and retains its existence, irrespective the nature of the latter. “[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 (‘the people and states that compose it one people and one country,’ quoted supra), 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 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 [Id.].” Applying the foregoing determinations to the matter at hand: The Chief Justice presented two questions that required reasoned response: (1) Did Texas cease to be a state, consequent to the act of secession described supra? And (2) did the state cease to be a member of the Union? In answer to the first question, Chase, after describing the relationships between the pre-revolutionary colonies, government under the Articles of Confederation (1781-1787) and the purpose in establishing government under the Constitution in 1787 (‘to form a more perfect union’), averred that it “may not be unreasonably said that the preservation of the States … [is] as much within the design and care of the Constitution as the preservation of the Union [Id., at 725].” The Chief Justice concluded, “The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States [Id.].”ix Having established that Texas never ceased to be a state, irrespective the composition and disposition of its government, the Chief Justice addressed its ongoing membership in the Union. At the outset of his excursus on the nature of states and their union under the Union States, the Chief Justice, as outlined supra, established the supremacy of the United States. The admission of Texas into the United States in 1845 “was something more than a compact; it was the incorporation of a new member into the political body. And it was final … and as indissoluble as the union between the original states Id., at 726].” (Were it otherwise, “the State must have become foreign… The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation [Id.].”) In sum, Texas remained a state and, equally, maintained a constitutionally unimpaired membership in the Union. Residual integrity of defeated rebellious states under the supervision of governments appointed by the United States: The Supreme Court, in its decision in Luther v. Borden (48 U.S. 1, 1849)x, established that under “the fourth article of the Constitution, it rests with the Congress to decide what government is the established one in a State. For, as the United States guarantee to each State a republican form of government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not [Id., at 17].” Thus, it falls to Congress to determine the legitimacy of the provisional post-bellum government of Texas, a congressional approval that is implied by congressional silence on the matter. This was of particular moment, given the peculiarities of government—one that combined civil and military authorities—in Texas at the time the suit was brought. “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 three exercised executive functions and actually represented the State in the executive department [74 U.S. 700, at 731, 732].” Since each of these executive officers gave his imprimatur to the prosecution of the suit in question [Id,, at 732] and Congress had not expressed any objection, it is “the necessary conclusion that the suit was instituted and is prosecuted by competent authority [Id.].” Regarding the legitimacy of Texas legislative acts authorizing sale of bonds: Having outlined the underlying constitutional framework, the Court proceeded to address the legitimacy of those acts of the insurgent Texas government authorizing disposition of bonds underwritten by the United States. The Chief Justice allowed that the January 11, 1862 repeal of the requirement for a gubernatorial endorsement on each certificate would have been a valid act, were the legislature that of an independent country or a lawful legislature of the of the several states. However, “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 acts [Id., at 732, 733].” No validity to the contract between the Military Board and White & Chiles: Despite the fact that ostensible title to the bonds was exchanged for items not of a specific military character, their purchase still constituted support for the cause of rebellion.xi Furthermore, and as noted supra, the acts of the insurgent legislature in support of rebellion constituted a nullity. As to the purchasers and holders in due course, the Court gave them short shrift. The bonds “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 [Id., at 736].” The Court concluded that the state of Texas was entitled to the relief it sought. JUSTICE GRIER’S DISSENTING OPINION Robert Grier, an associate justice of the Court, arguing in dissent, held that ‘political fact,’ not ‘legal fiction’ (as he described the argumentation of the majority opinion) properly enjoyed precedence. “Is Texas one of the United States? Or was she such at the time this bill (suit at law) was filed, or since? … 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 [Id., at 737].” Grier buttressed his argument through reference to the Court’s decision in Hepburn & Dundass v. Ellzey (6 U.S. 445, 1805), a matter relating to diversity of citizenship—the plaintiffs being residents of the District of Columbia and the defendant a resident of Virginia—and the legitimacy of bringing a complaint in Federal District Court in Virginia. The holding of the Court in Hepburn rested on a determination of the meaning of the word ‘state.’ The Court observed that the District of Columbia enjoyed an anomalous status, one that could engender improbable outcomes. The Court concluded, “It is true that as citizens of the United States and of that particular district which is subject to the jurisdiction of Congress, it is extraordinary that the courts of the United States, which are open to aliens and to the citizens of every state in the union, should be closed upon them. But this is a subject for legislative, not for judicial consideration [Id., at 453].” Given the tenor of the Court’s holding in Hepburn, Grier concluded that the constitutional definition of a ‘state’ had a measure of flexibility and that it fell to Congress to ascertain specific meaning in particular cases through legislation. In so many words, it was not the province of the Supreme Court to establish any such definition (as had been much of the exercise conducted in the majority opinion). At issue, in Grier’s eyes, was not whether Texas was rightly or wrongly separated from the Union but, rather, that as a matter of fact, it was. Regarding the United States government’s responsibility to redeem the bonds in question, Justice Grier argued, “It is a matter of utter insignificance to the government of the United States to whom she makes the payment of these bonds. They are payable to the bearer. The government is not bound to inquire into the bona fides of the holder, nor whether the State of Texas has parted with the bonds wisely or foolishly [Id., at 739].” Despite the ostensible limitation of the matter at hand to the degree of negotiability of the bonds in question, Justice Grier chose to expand on the issue of secession itself. “The ordinance of secession was adopted by the convention on the 18th of February, 1861, submitted to a vote of the people, and ratified by an overwhelming majority. I admit that this was a very ill-advised measure. Still, it was the sovereign act of a sovereign State, and the verdict on the trial of this question, ‘by battle, as to her right to secede, has been against her [Id., at 740].” ESTABLISHING THE IMPACT OF TEXAS V. WHITE In his review of Jonathan Lurie’s The Chase Court: Justices, rulings, and legacy (ABC-CLIO, 2004, 247 pp), Pace University professor Christopher Malone describes Chief Justice Salmon Chase’s political motivation and perception. “What emerges from the record is that Salmon Chase was no states’ rights advocate. He argued that the Congress has certain powers during wartime that states could no usurp and which citizens had to abide; he further argued that the federal government had the authority under the Fourteenth Amendment to provide equal protection under the laws when states violated them—be it African Americans across the South, white butchers in Louisiana, or a female applying to the Illinois bar for a license to practice law.”xii This consideration, of course, lends itself to further speculation. It would be many years after its enactment before the protections enumerated in the Fourteenth Amendment were made applicable to the several states. However, in the decisions of the Chase Court (1864-1873), it is evident that such forward thinking was already at work. Understood in these terms, the Court’s holding in Texas v. White likely had a significant, if nebulous, influence on successive decisions. There is at least the case to be made that the Court’s decision in Texas v. White established one end of the spectrum of opinion on any theoretical right to rebellion. Indeed, as constitutional scholar Peter Radan notes, it is “on the basis of Texas v. White [that liberal] Professor Cass Sunstein has asserted that ‘no serious scholar or politician now argues that a right to secede exists under American constitutional law.”xiii Radan, however, questions Sunstein’s conclusion as being both overly broad and failing to place Chief Justice Chase’s thinking in the context in which the United States found itself in the aftermath of the Civil War. “The brief reference to revolution by Chase CJ in Texas v. White does not err by referring to revolution as a right. In asserting that Texas could secede ‘through revolution,’ Chase CJ was not asserting the existence of any right of revolution. Rather it was seeing revolution for what it is, namely, a process, which either succeeds or fails, irrespective any considerations of morality.”xiv In sum, revolution is self-validating—if it succeeds, it becomes legitimate; if it fails, the effort itself remains tainted. This assessment is confirmed in the Court’s unanimous decision in Williams v. Bruffy (96 U.S. 176, 1877), even during such limited periods as a rebellious state reigns supreme. “When a rebellion becomes organized and attains such proportions as to be able to put a formidable military force in the field, it is usual for the established government to concede to it some belligerent rights, but to what extent they shall be accorded to the insurgents depends upon the considerations of justice, humanity, and policy controlling the government [Id., at 177].” Given the tenor the Court’s language in Bruffy, it appears that the Court might have been seeking judicial ground between Chief Justice Chase and his dissenting opponent on the Court, Justice Grier. As a practical matter, efforts at formal political separation have not arisen in the United States since 1865. However, a number of states have recently enacted legislation asserting their residual rights under the Tenth Amendment to Constitution. To the extent that practical application might flow from these assertions—e.g., legislated refusal to acquiesce to a federal mandate—the thinking underlying Texas v. White relating to the manner in which the United States exercises supremacy over the several states might well be implicated. Works consulted during the preparation of this report Jonathan Lurie, The Chase Court: Justices, rulings, and legacy (ABC-CLIO, 2004, 247 pp), review by Christopher Malone, BSOS, Vol. 15, No. 3 (March 2005), pp 26-263 Peter Radan, “An indestructible Union … of indestructible States: the Supreme Court of the United States and Secession,” Legal History, Vol. 10, 2006, pp 187 et seq. U.S., Supreme Court, Texas v. White, 74 U.S. 700 (1869) , Hepburn & Dundass v. Ellzey, 6 U.S. 445 (1805) , Luther v. Borden, 48 U.S. 1 (1849) , Williams v. Bruffy, 96 U.S. 176 (1877) End Notes Read More