If at first you don’t secede, don’t try again

At this time several states are talking about secession from the United States of America, because of various actions taken by the national government that these states’ voters and/or governments disagree with. Similar talk of secession was heard in the years before the War Between the States (1861-65). Secession from the United States of America is a serious matter, and it might be useful to review events in Texas during the 1850s and 1860s, when talk of secession was heard in Texas, acted upon, and its legality decided upon by the United States Supreme Court. “Texas talk” had been echoed in other states that had decided to secede from the United States, and to form the Confederate States of America.

The case before the Court was Texas v. White, decided following the end of the Civil War, in 1869. The case involved, first the legality of secession from the United States; second, the legality of the creation of a new and separate union of states, the Confederate States of America; third, wether the use of bonds and currencies issued by the United States of America was legal if used by the secessionist former members of the United States of America.

And then there were the problems of post-war re-entry into the United States of America by the former secessionist states. Vengeful and victorious states, having succeeded in retaining national unity, might resist efforts by defeated secessionist states to reintegrate with the rest of the Union. The United States Supreme Court had a number of issues to contend with in Texas v. White, and all of them risked popular anger, and even a possible resumption of popular rebellion.

The Court had to decide at the outset, were Confederate States of America currency and bonds legally issued? Wars cost money, and the search for underwriters of the southern states’ rebellion had involved printing Confederates States of America currency and bonds, and then selling those items to interested parties. There were interested parties who had purchased these printings of currency and bonds, including the governments of Britain and France: Southern states’ production of cotton and other agricultural exports were attractive to international buyers. (The effort to secure backing of the Confederacy from England and France was so important that the captain of the Confederacy naval cruiser Alabama challenged the captain of the Union cruiser Kearsarge to a duel — off Cherbourg, France, in the English Channel. The battle was fought on Sunday, June 19, 1864. Captain Ralph Semmes went down with the Alabama; a portrait of Captain James K. Thornton of the Kearsarge was painted for the State House, Concord.) And there were as well individual foreign producers of arms and military equipment interested in selling munitions for the war effort, all of whom had had to be paid. International relations for the post-war United States of America were therefore involved.

When the War Between the States ended, several of the defeated states tried to avoid paying for bonds and currency they had issued as members of the Confederate States of America. Numbers of their state bonds had been sold to the governments of Britain and France, as well as to individual bondholders, to help finance the secessionist war effort. When the war ended badly, and bills were due for payment, several of the defeated states argued that issuance of their wartime bonds and currency had been illegal, and that they did not have to pay the bondholders and currency holders for their efforts to help underwrite the war effort. Financial instruments used as payment to suppliers and underwriters of the failed secessionist effort had to been found to be illegal, but that was not the fault of the states that had issued them. “Let the buyer beware” is an old and valid axiom — or so it was argued in the series of cases that led in 1869 to the U.S. Supreme Court, and to Texas v. White (US 1,74 US 700).

If these arguments had been allowed to stand without challenge, the United States of America would have faced destruction of its faith and credit in world financial markets, for who would trust the United States of America to pay its bills if its member states were allowed to renege on paying their debts and obligations? At the same time, the victorious states that had formed the Union military forces could not and would not set a precedent by assuming the debts of the states that had — illegally, they felt — formed the Confederate States of America.

The facts facing the Supreme Court in Texas v. White were these:

In 1851, following the War with Mexico, the newest entry into the United States of America, the state of Texas, received $10 million in 5 percent federal government bonds, issued in valuations of $1,000 each and to be used as payment for settlement of various boundary claims. The bonds were made payable to the State of Texas, or to Bearer; all were dated January 1, 1851; and all were redeemable after December 31, 1864. No bonds would be redeemed unless endorsed by the Texas state governor.

On January 11, 1862, a newly elected Texas State Legislature, acting now as a unit of the Confederate States of America, repealed the federal government’s requirement that the Texas governor had to endorse the bonds issued in 1851. Texas continued to regard these bonds as guaranteed by the full faith and credit of the United States of America, however, though Texas now had a newly elected government and was part of a new political entity. The new Texas Legislature replaced the federal requirement of 1851 regarding disbursement of the bonds, and with new 1862 law it created a new military board that was comprised of the governor, the comptroller and the treasurer of the new state government. This newly created military board could provide for defense of the new Confederate state of Texas by using any bonds then in the state treasury with a value of up to $1 million. And during 1862, Texas transferred many of the federal government’s 5 percent bonds, in payment for military supplies. Additional of these federal 1851 bonds were deposited with Droege & Company, a British suppliers of cotton cards, as well as medicines, on January 11, 1865. And during 1865-66 additional of these federally issued bonds, now used as part of Texas currency reserves, were used as security for advances of international currencies, and for payment of bills due.

The Supreme Court decision in Texas v. White was written by Chief Justice Salmon P. Chase, who had been an important political figure in Massachusetts and national affairs for many years prior to his elevation to the Supreme Court. The Chief Justice was well aware of the stakes involved in the matter, and he sought first to ensure that the Court had jurisdiction in cases that involved “suits by States against citizens of other States, [and] that the States entitled to invoke this jurisdiction must be States of the Union.”

Chase began by defining a State:

“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 the consent of the governed. 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.

“It is needless to discuss…the question whether the right of a state to withdraw from the Union for any cause regarded by herself as sufficient is consistent with the Constitution of the United States.

“The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character from the Articles of Confederation. By these, the Union was solemnly declared to ‘be perpetual.’ And when these Articles were found to be inadequate…the Constitution was ordained ‘to form a more perfect Union.’ It is difficult to convey the idea of indissoluble unity more clearly than by these words….”

Chief Justice Chase was making an argument that the states had a mystical bond achieved by union, a bond that had been tested by time. He went on to argue that this relationship between states was, like a marriage, blessed by God and meant to be immutable:

“When…Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final….There was no place for reconsideration or revocation, except through revolution or through consent of the States.

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her Legislature…. were absolutely null. They were utterly without operation in law….”

From Texas v. White a number of consequences flowed, many of them causing considerable difficulties and most or all of them flowing from what came to be called “Reconstruction.” Modern day states considering secession need to study Texas v. White, if they have not already done so. The country has grown substantially since 1869, and the size and complexities of federal-state government relationships have as well. What sounds good on the campaign trail may not look as good in reality — even in Texas.

Russell Bastedo, former N.H. State Curator, is a resident of Dublin.

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