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of the

Supreme Court of the United States.

April 12, 1869




(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
[NRA v. Reno (July, 2000)]
[US v. Emerson PAGE]
[Printz and Mack PAGE]
[US v. Lopez PAGE]
[ARCHIVE]. Potowmack Institute Files
[RESOURCES]. Newspaper, magazine, journal articles, books, links

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