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http://www.potowmack.org/texwh1.html
REPORTS OF THE DECISIONS
of the
Supreme Court of the United States.
April 12, 1869
THE STATE OF TEXAS
V.
GEORGE W. WHITE, JOHN CHILES, JOHN A. HARDENBERG,
SAMUEL WOLF, GEORGE W. STEWART,
THE BRANCH OF THE COMMERCIAL BANK OF KENTUCKY,
WESTON F. BIRCH, BYRON MURRAY, JR., AND SHAW.
(See S. C., 7 Wall., 700-743.)
[The Civil War produced three constitutional amendments. None dealt with secession. In 1869, Chief Justice Salmon Chase used the opportunity of a boring case involving government bonds to rule on the illegality of secession and make the illegality a part of constitutional doctrine. Richard McLaren, now in federal prison, of our present secessionist Republic of Texas organization mentioned Texas v. White with hostility as he acted out his secessionist/libertarian fantasies in a hostage-taking situation in 1997. It also gets hostile mention on the
Sons of Confederate Veterans site.
This case is long, dense, mind-numbing, and difficult to decipher, but it is of monumental significance. The "personal right" that the district court has found in
US v. Emerson has secessionist implications for the individual. The right to secession applied even to individuals is a plank in the
Libertarian Party Platform.]
Part 1: Statement of the Case. THIS FILE
[Part 2: Attorneys for the Complainant. 16K.
Part 3: Attorneys for the Defendants. 30K.
Part 4: Opinions of Chief Justice Salmon Chase and Justice Robert Grier and Justice Noah Swayne. 61K.]
Action by State— attorney for— effect of
secession by State— authority of attorney of—
state Act as to transfer of property— contract of
insurgent military board, or legislature void—
purchaser of past due notes, rights of.
The Governor of a State may authorize an attorney
to bring an action in its name.
When Texas became one of the United States, it
entered into an indissoluble relation.
By the Ordinance of Secession, adopted by the
Convention and ratified by a majority of the citizens
of Texas, and the Acts of its Legislature intended to
give effect to that ordinance, the State did not cease
to be a State, nor its citizens to be citizens of the
Union.
Where the provisional Governor of the State
appointed by the President and a Governor elected by
the people in 1861, and a Governor appointed by the
Commander of the district, each has given his sanction
to the prosecution of a suit, the suit was Instituted
and is prosecuted by Competent authority.
If a State, by a public Act of Its Legislature,
imposes restrictions upon the alienation of its
property, every person who takes a transfer of such
property must be held affected by notice of them. A
contract made by an Insurgent State Military Board in
aid of the rebellion, is void.
An Act of an insurgent State Legislature intended
to aid rebellion, can be given no effect, by this
court.
Purchasers of notes or bonds past due, take
nothing but the actual right and title of the vendors.
[No. 6. Original Bill.]
Argued Feb. 5,8,9, 1869. Decided Apr. 12, 1869.
THIS is an original suit in this court, in which
the State of Texas filed a bill, Feb. 15, 1867,
claiming certain bonds of the United States as its
property. The bill prays an injunction to restrain the
defendant from receiving payment from the National
Government, and to compel the surrender of the bonds
to the State.
The bill charges the possession of certain United
States indemnity bonds, issued under the Compromise
Acts of Sep. 9 and 25, 1850, which bonds bore date
Jan. 1, 1851, and were payable to Texas or bearer, and
redeemable after Dec. 81, 1854, with interests at the
rate of five per centum per annum; that by the Act of
the Legislature of Texas on the 10th of December,
1861, it was provided that no bonds issued as
aforesaid, as a portion of said $5,000,000.00 of
stocks payable to bearer, shall be available in the
hands of any holder until the same shall have been
indorsed in the City of Austin by the Governor of
Texas; that the bonds remained in the possession of
Texas until sometime in 1861, or shortly thereafter,
when they were seized and taken by certain unlawful
combinations of individuals in armed hostility to the
Government of the United States; that such
organization, pretending to act in behalf of the
State, establishing a certain Military Board for the
purpose of accomplishing the overthrow of said
Government of
the State of Texas under the Constitution of the
United Stales, by withdrawing said State from the
Federal Union, and for waging war against the
Government of the United States, that said Military
Board, Jan. 12, 1865, sold to the defendants 135 of
said bonds and the coupons attached thereto, besides
seventy-six other bonds then on deposit in England.
It is also charged that the contract is illegal
and void, that it was never fulfilled by White &
Chiles, and that Texas has the right to recover; that
said bonds, or a portion thereof, were delivered to
certain other of the defendants by White & Chiles;
that said persons either hold the bonds for White &
Chiles in trust, or else they were purchased with
knowledge of the circumstances; that the bonds were
not obtained in good faith; that they were purchased
with notice of the title of the complainants; that
they were never indorsed as required by law; that
White & Chiles still hold a part of the bonds, and
that they are unable to respond.
The charges, in short, are property in the
complainant; unlawful possession by White & Chiles and
their co-defendants; purchase with notice and after
the bonds were overdue.
The contract of White & Chiles carries illegality
on its face.
The defendant, John A. Hardenberg, admits the
purchase of certain of the bonds, on the 6th and 8th
of November, for $32,473 and $34,700, having purchased
the same at $1.15 and $1.20 per dollar. Defendant
denies all knowledge of the ownership of Texas, says
that he purchased upon the information that a part of
such bonds had been redeemed; denies any trust upon
the part of White & Chiles, and all notice of the
character of their ownership; alleges that he paid
$45,611.25 in good faith. The defendant is silent as
to his purchasing them after they were due, but the
date he gives shows that they were so purchased. The
defendant, Chiles, first denies the authority of Texas
to sue, and the ability of the State to maintain the
action; insists upon an improper Joinder of the
parties; sets up a contract of White & Chiles with the
State, and insists that the State is estopped from
denying its validity. He denies the illegality of the
contract; admits that the bonds were not indorsed, but
insists that this was not necessary; says that he is
unable to give further description than is found in
the contract; states that $3,000 were sold to Thomas
Hass; that twelve of them were placed in the hands of
Birch, Murray & Co., as collateral security for
advances made to him; that four of them were placed in
the hands of Edward A. Thornton, for collection; that
one was placed in the hands of J. H. Barrett as a fee
to procure the collection of the bonds; that five of
them were sold by the defendant to Thomas J. Goff;
that four were sold by him to a New York broker, name
not recollected; that $3,000 were paid by him to A. J.
McKinley, on account of White.
He sets out dates which show that all these sold
after they had matured; he sets up that he and White
purchased about $60,000 worth of cotton cards and
medicines, in fulfillment of their contract; but that
the same was seized by robbers in transitu from
Mexico to Austin; and he claims the benefit of this
casualty; pleads a tender of the treasury warrants of
Texas in discharge of their contract. He sets up an
answer to the nature of a cross-bill. The defendants,
Birch, Murray & Co., admit the possession of eight of
the bonds; say that they received twelve bonds from
John Chiles, as collateral security for $5,000 loaned
by them to Chiles; that, on the 15th of December,
1865, they were paid four of the bonds amounting to
$4,000; that the remaining eight are still held by the
Treasury, "for the benefit of the parties entitled
thereto;" that after the refusal of the Comptroller to
pay, the defendants advanced Chiles $4,185.25 more;
that they did so upon the assurance of Chiles that he
was the true owner of the bonds. He denies generally
all bad faith. The defendant, White, admits the main
charges in the bill, but attempts to justify under the
Ordinance of Secession and the acts of the Military
Board. He sets up his contract and claims under it;
alleges that they purchased $65,000 worth of supplies
which were seized by robbers; sets up the tender, to
Governor Hamilton, of the Texas securities. He alleges
that he has disposed of all the bonds in his
possession, and substantially states the same facts in
regard to Birch. Murray & Co.
A fuller statement of the circumstances under
which the transfer of the bonds in question to White &
Chiles was made, seems desirable, and is here given.
In January, 1861, a call for a Convention of the
people of Texas was issued, signed by sixty-one
individuals.
The call was without authority and revolutionary.
The persons issuing the call were not acting by
the direction nor with the sanction of the existing
government, but in the capacity of private citizens.
Under this call delegates were elected from some
sections of the State, whilst in others no vote
whatever was taken.
These delegates assembled in State Convention, and
Feb. 1, 1861, the Convention adopted an Ordinance: To
Dissolve the Union between the State of Texas and the
Other States United under the Compact styled "The
Constitution of the United States of America."
The Ordinance contained a provision requiring it
to be submitted to the people of Texas, for
ratification or rejection by the qualified voters
thereof, Feb. 23, 1861.
To avoid any internecine disturbance the irregular
call of the State Convention might produce, Governor
Houston convened the Legislature of the State in extra
session at Austin, Jan. 22, 1861.
The Legislature passed an Act ratifying the
election of delegates for the State Convention.
The Ordinance of Secession submitted to the people
was adopted by a vote of 34,794 in favor of the
ratification, to 11,235 against its ratification.
The Convention, which had adjourned immediately on
passing the Ordinance, re-assembled. Mar. 14, 1861, it
declared that the Ordinance of Secession had been
ratified by the people, and that Texas had withdrawn
from the Union of the States under the Federal
Constitution. It also passed a resolution requiring
the officers of the State Government to take an oath
to support the provisional government of the
Confederate States, and providing as follows:
"Should any officer of the government refuse to
take said oath or affirmation, in the manner and
within the time prescribed, then and in that case, his
office shall be deemed vacant, and the same filled and
the duties thereof discharged as though he were dead
or had resigned."
Mar. 16, the Convention passed an Ordinance,
declaring that Whereas, Sam Houston, Governor of the
State, and B. W. Cave, Secretary of State, had refused
or omitted to take the oath prescribed, their offices
were vacant; that the Lieutenant-Governor should
exercise the authority and perform the duties
appertaining to the office of Governor, and that the
deposed officers should deliver and turn oyer to their
successors in office the great seal of the State, and
all papers, archives and property in their possession,
belonging or appertaining to the State.
The Convention further assumed to exercise and
administer the political power and authority of the
State.
Thus was inaugurated the Rebel Government of
Texas,
In many, if not all the other Stales that united
in the league of "The Confederacy," the State
Government organized under the Confederacy assumed the
political power of the State, with the acquiescence
and consent of the existing government. But in Texas
the State Government was organized, not only without
the consent of the existing government, but by the
forcible ejection of its officers.
When the army of the Trans-Mississippi Department
was surrendered, the civil officers of the usurping
Government of Texas, including the Governor, Treasurer
and Secretary of State, emigrated to Mexico. The State
Government disappeared, and the State was disorganized
and in a condition of anarchy.
Thereupon, June 17, 1865, the President issued his
proclamation appointing a provisional Governor, and
directed the formation by the people of a State
Government in Texas.
Under the Provisional Government thus established,
the people proceeded to make a Constitution and
reconstruct their State Government.
It is under the authority of this government, so
organized, that these proceedings are instituted, to
vacate and set aside the proceedings and contracts of
the Revolutionary Government in question.
Jan. 11, 1862, the Legislature of-the usurping
Government of Texas passed an Act:
"To Provide Arms and Ammunition, and for the
Manufacture of Arms and Ordnance for the Military
Defenses of the State;" and by said Act created a
Military Board, with certain powers, to carry out the
purpose indicated in the title.
On the same day the Legislature passed a further
Act entitled "An Act to Provide Funds for Military
Purposes," and therein directed the Board, which it
had previously organized, to dispose of any bonds and
coupons which may be in the Treasury on any account,
and use such funds or their proceeds for the defense
of the State; further providing, that "Any bonds so
disposed of under the provisions of this Act, shall be
substituted by an equal amount of bonds of the
Confederate States of America."
Under the authority of the Act last referred to,
the Military Board executed the above mentioned
contract with White & Chiles, which this proceeding is
instituted to vacate.
By this contract it appears that the bonds in
question, belonging to the State of Texas, were
transferred to White & Chiles, upon certain terms and
conditions; and the question now arises: what title,
if any, was vested in White & Chiles under the
contract, and what in their assignees?
A further statement appears in the opinion of the
court.
See, also, a subsequent decision by this court in
one branch of the case (post.)
[TOP, Part 1, THIS FILE]
Part 2: Attorneys for the Complainant. 16K.
Part 3: Attorneys for the Defendants. 30K.
Part 4: Opinions of Chief Justice Salmon Chase and Justice Robert Grier and Justice Noah Swayne. 61K.]
[PotowmackForum], interactive posting
[TOP]
[HOMEPAGE].
[NRA v. Reno (July, 2000)]
[US v. Emerson PAGE]
[Printz and Mack PAGE]
[US v. Lopez PAGE]
[ARCHIVE]. Potowmack
Institute Files
[RESOURCES].
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© Potowmack Institute