Texas v. White, was a
significant case argued before the United States
Supreme Court in 1869. The case involved a claim by the Reconstruction
government of Texas that United
States bonds owned by Texas since 1850 had been illegally sold by
the Confederate state legislature during the American Civil War.
filed suit directly with the United States Supreme Court, which,
under the United States Constitution, retains original jurisdiction
on cases in which a state is a party.
In accepting jurisdiction, the court ruled that Texas had remained
a state ever since it first joined the Union, despite its joining
the Confederate States of
and its being under military rule at the time of the
decision in the case. In deciding the merits of the bond issue, the
court further held that the Constitution
from the United States, and that the
ordinances of secession, and all the acts of the legislatures
within seceding states intended to give effect to such ordinances,
were "absolutely null
Secession and bond sales
On February 1, 1861 the Texas secession convention drafted and
approved an Ordinance of Secession. This ordinance was subsequently
approved by both the state legislature and a statewide referendum.
On January 11, 1862 the state legislature approved the creation of
a Military Board to address issues involved in the transition in
the shift in loyalty from the United States to the Confederate
Texas had received $10 million in United States bonds in settlement
of border claims as part of the Compromise of 1850
. While many of the
bonds were sold, there were still some on hand in 1861. Needing
money, the legislature authorized the sale of the remaining bonds.
Existing state law required the Texas governor to sign his
endorsement on any bonds which were sold, but the state feared that
the sale price would be depressed if the United States Treasury
refused to honor bonds sold by a Confederate state. The legislature
therefore repealed the requirement for the governor's endorsement
in order to hide the origin of the bonds.
Before the bonds were sold, a Texas Unionist notified the Treasury
which ran a legal notice in the New York Tribune that it would not
honor any bonds from Texas unless they were endorsed by the prewar
governor (Sam Houston
). Despite the
warning, 136 bonds were purchased by a brokerage owned by George W.
White and John Chiles. Although this sale probably occurred
earlier, the written confirmation of the transaction was not
executed until January 12, 1865. The bonds were in the meantime
resold to several individuals, one or more of whom were able to
successfully redeem the bonds through the United States
With the end of the war, President Andrew
appointed a temporary governor, Andrew J. Hamilton
, and ordered the state to create
a new state constitution and form a state government loyal to the
Union. James W. Throckmorton
was elected governor
under this process while General Philip H. Sheridan
, the military commander of the
area, appointed Elisha M. Pease
As the United States Treasury Department became aware of the
situation regarding the bonds, it refused to redeem those bonds
sold by White and Chiles. After the state realized that it was no
longer in possession of the bonds, it determined that the bonds had
been sold illicitly to finance the rebellion against the United
States. All three of the governors, in order to regain ownership of
the bonds for the state, approved filing a lawsuit under Article
III, Section 2 of the United States Constitution which granted
original jurisdiction to the Supreme Court in all cases "in which a
State shall be a party." The case, filed on February 15, 1867,
appeared on the docket as The State of Texas, Compt., v.
George W. White, John Chiles, John A.
Hardenburg, Samuel Wolf, George W. Stewart, the Branch
of the Commercial Bank of Kentucky, Weston F. Birch, Byron
Murray, Jr., and Shaw.
By the time the suit was filed, Republicans in Congress, led by its
Radical faction, were opposing President Johnson's leadership in
reconstruction policy. Radicals opposed the creation of provisional
state governments, and moderates were frustrated by a number of
lawsuits instigated by provisional southern governors attempting to
obstruct congressional reconstruction. Increasingly Republicans
were abandoning Lincoln's position that the states had never left
the Union, preferring to treat the South as conquered provinces
totally subject to Congressional rule. They hoped that the Supreme
Court would reject jurisdiction in the case by claiming that there
was no legally recognized government in Texas.
Democrats, on the other hand, wanted the Court to acknowledge the
existence of an official state government in Texas. Such a ruling
would have the effect of accepting Texas as fully restored to its
place in the Union and render the Military Reconstruction Act
unconstitutional. Wall Street was also concerned with the case,
being opposed to any actions that threatened bondholder and
A total of twelve attorneys represented Texas and the various
defendants in the case. Arguments before the Supreme Court were
made over three days on February 5, 8, and 9, 1869.
State of Texas
The complaint filed by Texas claimed ownership of the bonds and
requested that the defendants turn the bonds over to the state.
Texas' attorneys disputed the legitimacy of the Confederate state
legislature which had allowed the bonds to be sold. In response to
an issue raised by the defendants, Texas differentiated between
those acts of the legislature necessary "to preserve the social
community from anarchy and to maintain order" (such as marriages
and routine criminal and civil matters) and those 'designed to
promote the Confederacy or that were in violation of the U.S.
Texas argued that it was a well established legal principle that if
the original transfer to White and Chiles was invalid, then the
subsequent transfers were also invalid. Chiles and White might be
liable to such purchasers and any purchasers who had successfully
redeemed the bonds were liable for a personal judgement in favor of
the state for the amount they received.
The attorneys for Chiles first raised the issue of jurisdiction.
They claimed that the section of the Constitution granting the
Supreme Court original jurisdiction did not apply. Texas' current
situation was not that of a state as contemplated by the Founders,
but was that of a territory secured by military conquest. Residents
of Texas were subject to military rule and had no representation in
Congress and no constitutional rights.
Chiles' attorneys also argued that the sale of the bonds itself,
even if conducted by a revolutionary government, were not in
violation of the Constitution. Their sale was for the benefit of
the people of the state, and the people, simply because they now
had a different government, could not decide to invalidate the
predecessor government's actions. They rejected the notion that the
people of the state and the state itself were legally separate
entities. As long as the people had chosen to act through
representatives it was irrelevant as to who those representatives
James Mandeville Carlisle, the attorney for Hardenburg, argued that
since his client had purchased his bonds on the open market in New
York he had no way of knowing about any possible questions
concerning the validity of his title. Carlisle further stated that
the precedents recognizing that the decisions of the
"revolutionary" government would be binding on any subsequent
governments were "universally admitted in the public law of
White's attorney, P. Phillips, argued that if the bond sales were
invalid then all actions of the state government during the war
were null and void. He stated that "civilized government recognizes
the necessity of government at all times." Phillips concluded his
presentation by stating that if, in fact, Texas had acted illegally
during the war then a subsequent government had no right to appeal
that illegality to the Supreme Court.
The court's opinion was delivered by Chief Justice Salmon Chase
, a former cabinet member under
, on April 12, 1869.
He first addressed a procedural issue raised in the original
filings claiming that the state lacked the authority to even
prosecute the case. Chase ruled that the approval of any one of the
three governors on the original bill submitted to the court was
sufficient to authorize the action.
Chase wrote that the original Union of the colonies had been made
in reaction to some very real problems faced by the colonists. The
first result of these circumstances was the creation of the
Articles of Confederation which created a perpetual union between
these states. The Constitution, when it was implemented, only
strengthened and perfected this perpetual relationship. Chase
Chief Justice Salmon P.
After establishing the origin of the nation, Chase next addressed
Texas' relationship to that Union. He rejected the notion that
Texas had merely created a compact with the other states, but had
in fact incorporated itself into an already existing indissoluble
political body. From the decision:
For these reasons, Texas had never been outside the Union and any
state actions taken to declare secession or implement the Ordinance
of Secession were null and void. The rights of the state itself, as
well as the rights of Texans as citizens of the United States
remained unimpaired. From the decision:
However the state' suspension of the prewar government did require
the United States to put down the rebellion and reestablish the
proper relationship between Texas and the federal government. These
obligations were created by the Constitution in its grant of the
power to suppress insurrections and the responsibility to insure
for every state a republican form of government. From the
Having settled the jurisdiction issue, Chase moved on to the
question of who owned title to the bonds. In previous circuit court
cases Chase had recognized the validity of legislative decisions
intended solely to maintain peace and order within southern
society. He had recognized the validity of "marriage licenses,
market transactions, and other day-to-day acts legally sanctioned
by the Confederate state governments". However he clearly treated
actions in furtherance of the war effort in a different light. From
Chase ruled that the state's relationship with White and Chiles
"was therefore treasonable and void." Consequently, he ordered that
the current state of Texas still retained ownership of the bonds
and were entitled to either the return of the bonds or the payment
of a cash equivalent from those parties who had successfully
redeemed the bonds.
Associate Justice Robert
Justice Robert Grier
wrote a dissent in
which he stated that he disagreed "on all points raised and
decided" by the majority. Grier relied on the case Hepburn v. Ellzey
in which Chief Justice John Marshall had
defined a state as an entity entitled to representatives in both
Congress and the Electoral College. Thus, her status had become
more analogous to an Indian
tribe than to a
state. He also believed that the issue of Texas statehood was a
matter for congressional rather than judicial determination, and he
was "not disposed to join in any essay to prove Texas to be a State
of the Union when Congress had decided that she is not." Justice
Grier said that Texas's claim that she was not a state during the
Civil War was the equivalent of making a "plea of insanity" and
asking the court to now overrule all her acts "made during the
disease". Justices Noah Swayne
Samuel F. Miller
The dissenting justices rejected the majority opinion for different
reasons. Grier, a doughface
Pennsylvania, was opposed to Radical Reconstruction and was
primarily concerned with the bondholders. He felt that the Treasury
lost any control over the bonds immediately after they were issued.
Miller and Swayne were more sympathetic than Chase to the radical
position. In a separate dissent they agreed with the majority that
the bonds had been sold illegally by the secessionist government,
but agreed with Grier that the current state of Texas was not a
state within the meaning of the Constitution.
Chase's decision was criticized by both sides. Radical Republicans
saw this as evidence that Chase was abandoning a cause he had once
enthusiastically supported. Conservatives condemned Chase for a
decision that would allow congressional reconstruction to
In December, Lyman Trumbull
the Miller-Swain dissent as his model, introduced legislation to
overcome the White decision. Trumbull's bill stated that "under the
Constitution, the judicial power of the United States does not
embrace political power, or give to judicial tribunals any
authority to question the political departments of the Government
on political questions
". In a
direct attack on Chase's position the bill stipulated that "it
rests with Congress to decide what Government is the established
one in a State, and that it is hereby, in accordance with former
legislation, declared that no civil State Government exists in
Virginia, Mississippi, or Texas." The legislation was defeated by
the more conservative members of Congress.
Aleksandar Pavković and Peter Radan in Creating New States:
Theory and Practice of Secession
hold that the entry "There
was no place for reconsideration or revocation, except through
revolution or through consent of the States" was not surprising.
Given that the United States was born from revolution, Chase's
words echo what had been stated by many legal scholars and
politicians of the day, including Abraham Lincoln
and Daniel Webster
- Graham, John Remington. (2002) "A Constitutional History of
Secession", (First Edition). Pelican Publishing, ISBN
- Murray, Robert Bruce. Legal Cases of the Civil War.
(2003) ISBN 0-8117-0059-3
- Nevin, John. Salmon P. Chase: A Biography.
(1995) ISBN 0-19-504653-6
- Ross, Michael A. Justice of Shattered Dreams: Samuel
Freeman Miller and the Supreme Court during the Civil War Era.
(2003) ISBN 0-8071-2868-6
- Spaeth, Harold J. and Smith, Edward Conrad. (1991).
HarperCollins college outline series: Constitution of the
United States. (13th ed.). New York: HarperCollins. ISBN
- Murray p. 149
- Ross pp158-159.
- Ross p. 159
- Murray p. 150
- Murray p. 151
- Ross pp. 159-160
- Ross p. 160
- Murray pp. 151-152. Sections in quotes are Murray's rather than
- Murray p. 152
- Murray p. 153
- Murray p. 154
- Murray p. 155
- Murray p. 156
- Murray p. 156
- Ross p. 161. The quote is from Ross, not Chase.
- Ross p. 161. The quote is from Ross, not Chase.
- Murray p. 157
- Murray pp. 157-158
- Ross p. 162
- Niven p. 438
- Ross pp. 162-163
- Aleksandar Pavković, Peter Radan, '
'Creating New States: Theory and Practice of Secession, p. 222,
Ashgate Publishing, Ltd., 2007.