Lawyers and the case law on secession
When you as a lawyer or law professor whether or not secession is legal, you will often be told that it is illegal based on the case of Texas v. White.
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Although this Supreme Court case is often referenced, few are familiar with the case or the details of the case, which is so often cited. When those lawyers or law professors cite the case, in many cases, it stops the questions and makes them look like they know what they are talking about. The more you know about the case, the more you realize that it really raises more questions than it does settle questions.
In legal studies, there are the laws which are passed by duly elected legislative bodies and then there is case law. With each court ruling, laws are modified and changed. Under ideal circumstances, court rulings consider previous decisions and make their rulings consistent with those rulings. The more consistent the rulings, the more established the law is. When the court rulings are inconsistent with the previous rulings, although it may be a precedent, there are serious problems. Texas versus White is one of those cases which set precedents, changed the body of law and now needs closer examination. Although it needs close examination, few legal scholars dare to venture into that case, since it would upset the apple cart and weaken the current judicial establishment stance on the issue.
The Setting of Texas v. White
During the period of reconstruction, a Texas businessman named George White was trafficking in pre-war bonds issued by the State of Texas. He had been collecting many of the bonds and during his collection of them, the state financial agent, George Paschal attempted stopping him from this activity by means of legal action. Since financial times were difficult, the bonds were a potential source of great revenue. Paschal was out to stop the trafficking in those bonds.
Since Texas was in the midst of reconstruction, it was not legally considered a state, but rather, part of a military district. Being part of a military district, the legal rights of the State of Texas were suspended. Although under pre-war circumstances, such legal cases could be brought before the Supreme Court of the United States, since Texas was not a State at that juncture, it was not allowed that legal right. Despite not having the right, the Supreme Court decided to hear the case.
Prior to taking the case, the Supreme Court of the United States was in need of a legal precedent to settle the question of the legality of secession. Although President Jefferson Davis had been imprisoned, with many people wanting to put him on trial for treason, the decision was made to free him due to fears that with his day in court, he would win. Had Jefferson Davis won his case before the Supreme Court and secession had been deemed legal, then the United States would not be justified in their reconstruction policies. Many in Congress were determined to maintain those policies and wanted a legal precedent to add legitimacy to their acts.
It was in this setting that the Supreme Court decided on hearing the case of Texas v. White. Although according to Congress, Texas was not at that time legally a State or a member of the Union, and did not have standing to bring such a case to the Supreme Court, the need for a precedent was a deciding factor. It was more important to have a precedent than to be consistent with their policies. The Supreme Court hoped that this case would provide them with the precedent they needed.
Chief Justice Salmon Chase
The Chief Justice was Salmon Portland Chase. At that time, he had already taken stands and set precedents with other cases. His most famous case was the one establishing the green back dollars as legal tender. Prior to becoming Chief Justice, he had served as Secretary of the Treasury and issued paper money with his image on it. Now that he was Chief Justice, he presided over the case deciding if the paper money was ‘legal tender’. Rather than recuse himself in the case, he issued the ruling that the paper money was ‘legal tender’ and had to be accepted for payments of debts.
Since he had already established precedents, Chase was willing to take on the Texasv White case. The case presented some serious challenges. Since the bonds were issued by the State of Texas prior to them formally leaving the Union, the action in question took place before the war. It was also problematic in that there were many mixed rulings in cases dealing with legal decisions occurring during the war. Some courts ruled in favor of what Confederate era courts decided, and some courts overruled what those courts decided. There had not been a major decisive ruling to settle things ‘once and for all’.
The defense presented their contention that Texas did not have legal standing in the matter since the Congress no longer recognized Texas as a State.
Salmon Chase and the Supreme Court saw the problems as the potential solution to dealing with the legality of secession question. After hearing the arguments, the justices ruled in a 5-3 decision on the matter. Although the justices limited the arguments to the legality of Texas acts regarding secession, they applied their decision to all the States.
In crafting his ruling, Justice Chase chose to make a unilateral ruling, disregarding the case law from previous cases regarding the legality of Confederate-era courts. He crafted his ruling based on mixing concepts from the Articles of Confederation and the United States Constitution. He used the concept of a ‘disoluble’ from the Articles of Confederation and combined that with the concept of the ‘union’ from the Constitution. By splicing the concepts together, he crafted a new concept. The Articles of Confederation were designed to be a perpetual relationship, while the Constitution was a conditional one. With his new concept, he changed the nature of the relationship of the State to the Union itself. Chase stated,
“the Union is indestructible and not dissoluble by acts of a state, the government or the people. Secession could only occur in a revolution and with the approval of all the states”.
Although some cite his ruling as stating that secession is illegal, that is not the case. His ruling was that secession can occur provided that all the other States are in support of that decision. Since Chase was appointed by President Lincoln, his opinions were akin to those of Lincoln in terms of the Union created the States, rather than the historic position that the States created the Union.
(Historically, the people through the States issued the Declaration of Independence in 1776. The States later drafted the Articles of Confederation. When the articles proved ineffective, representatives from the States gathered to address the issues. They overstepped the initial authority they were given and drafted the Constitution, which was approved in 1787.)
Texas forfeited its rights but not its obligations as a State
Chase went on to add that”Texas forfeited its rights but not its obligations as a state”. This meant that although Texas was not legally considered a State with the rights they are entitled to, they still had to fulfill the obligations of a State. That part of the ruling was included as a necessary part of reconstruction. Each of the Southern States was required by Congress to pass the proposed 13th and 14th amendments in their legislatures before they could rejoin the Union. Although according to the Constitution, only States could vote for such amendments, those areas now considered military districts had to approve amendments before they could be considered States again, even though those military districts were not allowed to have representatives in Congress.
Chase’s decision was essentially saying that the people of Texas did not have the right to leave the Union the way they did. Even though the body or representatives that put forth secession were duly elected by the voters, the action was dismissed. The irony is that when Texas seceded, the representatives invalidated the actions taken by the illegal 10th Republic of Texas Congress in approving annexation. The 10th Congress approved the document in an extended session that they were not authorized to conduct, since the 11th Texas Congress had been elected, but not seated yet. The secessionist convention members merely said what the 10th Texas Congress did in approving annexation was no longer valid.
After the court case
To avoid dealing with the legality of the actions concerning the annexation of Texas, Chase limited the scope of the court to the question of how Texas seceded. Even though the body or representatives approving secession had more legitimacy that those approving annexation.
Paschal as the financial agent of the state won the case and was allowed to collect the money on those bonds rather than White. Although the collection of money on the bonds was the initial issue, the right to collect on them went to Paschal. The bonds were never declared illegal. Once the 13th and 14th Amendments were approved by the Texas Legislature, the Governor of Texas fired George Paschal from his role as financial agent for the State and refused honoring his claims. This was ironic since Paschal worked fervently to attain the passage of those amendments. Paschal in turn sued the State and won his case. He was eventually entitled to receive the money from the State bonds. He eventually left Texas for Washington D.C. While in Washington, he lectured at Georgetown University and died in 1878.