Just an interesting note prior to getting into the first half dozen or so
cases immediately following the civil war.
Salmon P. Chase was the chief justice in the White v Texas case.
“Chase, who had his own ambitions to be president, was an anti-slavery
Republican former governor of Ohio whom President Abraham Lincoln
governor of Ohio whom President Abraham Lincoln appointed to the
presidency, and historians say his rulings are inflected with political
considerations.”
Can peaceful secession be achieved before the violence eventually comes?
Much of what follows is direct quotes from the various US Supreme Court majority opinions.
Minority opinions have not been included, because it is the majority opinion that enters into law.
After the American Civil War there were legal cases that required that the nature of the relationship of the Union and the Confederacy became important.
Emmerich de Vattel, The Law of Nations (1758) was written before the colonies had entered into any kind of union, but was quoted in the majority opinion of Williams v. Bruffy (1877)
The US Supreme Court cases referenced for this post are:
Thorington v. Smith (1868)
White v. Texas (1869)
Hickman v. Jones (1869)
Hanauer v. Doane (1870)
White v. Hart (1871)
Williams v. Bruffy (1877)
We normally talk about states seceding from the Union, but there are several understandings of the word “state”.
In every case the state refers in one way or another to “the people”.
Note that “person” or “individual” is not at all referenced here.
[See White v. Texas]
The concept of “government” refers to what has been called de facto government. De facto governments are of two kinds:
A usurping government expels the regular authorities and establishes itself in their place.
Supporters of the usurpation in the war against a usurped government do not incur the penalties of
treason.
Such as exists after it has expelled the regularly constituted authorities from the seats of power and the
public offices and established its own functionaries in their places so as to represent in fact the sovereignty
of the nation. As far as other nations are concerned, such a government is treated as in most respects
possessing rightful authority; its contracts and treaties are usually enforced; its acquisitions are retained; its
legislation is in general recognized; and the rights acquired under it are, with few exceptions, respected after
the restoration of the authorities which were expelled.
Such as exists where a portion of the inhabitants of a country have separated themselves from the parent
state and established an independent government. The validity of its acts, both against the parent state and
the citizens or subjects thereof, depends entirely upon its ultimate success; if it fail to establish itself
permanently, all such acts perish with it; if it succeed and become recognized, its acts from the
commencement of its existence are upheld as those of an independent nation.
[See Thorington v. Smith (1868); Williams v. Bruffy (1877)]
The Articles of Confederation were ratified February 2, 1781. These Articles embodied the 4th understanding of a “state” above, as applying to a people with similar principles, interests, geographic location, and with common origin and mutual sympathies. [See White v. Texas (1869)]
Article IV refers to the desire to “…better secure and perpetuate mutual friendship and intercourse among the people of the different states in this union…”.
Article XIII: “And the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a congress of the united states, and be afterwards con-firmed by the legislatures of every state. “
Later it says:
“…we respectively represent in congress, to approve of, and to authorize us to ratify the said articles of xconfederation and perpetual union, Know Ye, that we, the undersigned delegates, by virtue of the power and authority to us given for that purpose, do, by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said articles of confederation and perpetual union, and all and singular the matters and things therein contained. And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the united states in congress assembled, on all questions, which by the said confederation are submitted to them. And that the articles thereof shall be inviolably observed by the states we respectively represent, and that the union shall be perpetual.”
[See Articles of Confederation]
White v. Texas (1869) wrote “But the perpetuity and indissolubility of the Union, by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. Under the Articles of Confederation each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States.”
It further stated that “By these the Union was solemnly declared to be perpetual.”
[See White v. Texas (1869)]
https://www.archives.gov/milestone-documents/articles-of-confederationhttps://www.archives.gov/milestone-documents/articles-of-confederation
Thorington v. Smith :: 75 U.S. 1 (1868) :: Justia US Supreme Court Center [Thorington v. Smith 1868]
TEXAS v. WHITE ET AL. | Supreme Court | US Law | LII / Legal Information Institute [White v. Texas 1869]
Hickman v. Jones :: 76 U.S. 197 (1869) :: Justia US Supreme Court Center [Hickman v. Jones 1869]
Hanauer v. Doane :: 79 U.S. 342 (1870) :: Justia US Supreme Court Center [Hanauer v. Doane 1870]
White v. Hart :: 80 U.S. 646 (1871) :: Justia US Supreme Court Center [White v. Hart 1871]
Williams v. Bruffy :: 96 U.S. 176 (1877) :: Justia US Supreme Court Center Williams v. Bruffy 1877]
“In the Constitution the term state most frequently expresses the combined idea just noticed, of people, territory, and government. 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.”
“In the clauses which impose prohibitions upon the States in respect to the making of treaties, emitting of bills of credit, and laying duties of tonnage, and which guarantee to the States representation in the House of Representatives and in the Senate, are found some instances of this use in the Constitution.”
[See White v. Texas 1869]
“But it is also used in its geographical sense, as in the clauses which require that a representative in Congress shall be an inhabitant of the State in which he shall be chosen, and that the trial of crimes shall be held within the State where committed.”
[See White v. Texas 1869]
“And there are instances in which the principal sense of the word seems to be that primary one to which we have adverted, of a people or political community, as distinguished from a government.”
“In this latter sense the word seems to be used in the clause which provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion.”
“In this clause a plain distinction is made between a State and the government of a State.”
[See White v. Texas 1869]
“Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people.”
[See White v. Texas 1869]
“ 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.”
“And we have already had occasion to remark at this term, that the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence,’ and that 'without the States in union, there could be no such political body as the United States.”
“Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government.”
[See White v. Texas 1869]
“The government of the nation and the government of the states are each alike absolute and independent of each other in their respective spheres of action, but the former is as much a part of the government of the people of each state, and as much entitled to their allegiance and obedience as their own local state governments – “the Constitution of the United States and the laws made in pursuance thereof,” being in all cases where they apply, the supreme law of the land.”
“ For all the purposes of the national government, the people of the United States are an integral, and not a composite mass, and their unity and identity, in this view of the subject, are not affected by their segregation by state lines for the purposes of state government and local administration.”
[See White v Hart 1871]
“The national Constitution was, as its preamble recites, ordained and established by the people of the United States.”
“It created not a confederacy of states, but a government of individuals” [emphasis added]
(See White v Hart 1871)
When the Articles of Confederation “… were found to be inadequate to the exigencies of the country, 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.
What can be indissoluble if a perpetual Union, made more perfect, is not?”
[See White v. Texas 1869]
“The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.”
[White v. Texas 1869]
“The union of the states, for all the purposes of the Constitution, is as perfect and indissoluble as the union of the integral parts of the states themselves, and nothing but revolutionary violence can in either case destroy the ties which hold the parts together.”
[See Hickman v. Hart 1871]
“It assumed that the government and the Union which it created, and the states which were incorporated into the Union, would be indestructible and perpetual, and as far as human means could accomplish such a work, it intended to make them so.”
[See White v. Hart 1871]
In the USSC cases so far discussed the term “secession” is found only twice.
“The doctrine of secession is a doctrine of treason, and practical secession is practical treason, seeking to give itself triumph by revolutionary violence.”
(White v. Hart (1871))
In the case of White v. Texas 1869 we find a confluence of all of the ideas elucidated above.
“When, therefore, 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. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. 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 intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired.”
(White v. Texas, (1869))
The terms “rebellion”, “insurrection”, and “civil war” are often used interchangeably for what occurred in the early 1860s. They did draw some distinctions, however vaguely.
In distinguishing between “rebellion” and “civil war”, it is considered that rebellion occurred prior to the civil war: “The rebellion out of which the war grew was without any legal sanction.” [Hickman v. Jones 1869]
There is an implication that “insurrection” grew out of the rebellion: “It cannot be questioned that the Confederate notes were issued in furtherance of an unlawful attempt to overthrow the government of the United States by insurrectionary forces.” [Thorington v. Smith 1868]
Conflating “rebellion” with “insurrection”: “ In the eye of the law, it had the same properties as if it had been the insurrection of a county or smaller municipal territory against the state to which it belonged. [Hickman v. Jones 1869]
Seeming conflation of “rebellion” with “civil war”: “The late rebellion was without any element of right or sanction of law.” [White v. Hart 1871]
Over and above secession, it appears that the primary reason for a Union response to the confederacy was in the confederation of the states to oppose the Union.
“In 1861 seven states, and later four other states, established a confederation independent of the Union.
The confederation was supported by popular majorities of the populace."
“A central government of the confederated states was established.”
"Its power was recognized as supreme in most of the territory, with the exception of those areas under the jurisdiction of the armed forces of the Union.”
(Thorington v. Smith (1868); White v. Texas, (1869))
“The Confederate States was an illegal organization, within the provision of the Constitution of the United States prohibiting any treaty, alliance, or confederation of one state with another, whatever efficacy, therefore, its enactments possessed in any state entering into that organization must be attributed to the sanction given to them by that state.”
(Williams v. Bruffy (1877))
As in the Constitution, the USSC drew a distinction between the Confederacy and the government of that Confederacy. They also showed that, in their opinion, the Confederate government did not meet the requirements for any kind of de facto government.
“The Confederate government was distinguished from each kind of such de facto governments. Whatever de facto character may be ascribed to it consists solely in the fact that for nearly four years it maintained a contest with the United States and exercised dominion over a large extent of territory. Whilst it existed, it was simply the military representative of the insurrection against the authority of the United States; when its military forces were overthrown, it utterly perished, and with it all its enactments.”
“The United States, during the whole contest, never for one moment renounced their claim to supreme jurisdiction over the whole country and to the allegiance of every citizen of the republic. They never acknowledged in any form or through any of their departments the lawfulness of the rebellious organization or the validity of any of its acts except so far as such acknowledgment may have arisen from conceding to its armed forces in the conduct of the war the standing and rights of those engaged in lawful warfare. They never recognized its asserted power of rightful legislation.”
[See Williams v. Bruffy (1877)]
“Nor was there a rebel government de facto in such a sense as to give any legal efficacy to its acts.”
“It was not recognized by the national nor by any foreign government.”
“It was not at any time in possession of the capital of the nation.”
“It did not for a moment displace the rightful government. That government was always in existence, always in the regular discharge of its functions, and constantly exercising all its military power to put down the resistance to its authority in the insurrectionary states.”
[Hickman v. Jones (1869)]
“It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.”
[See White v. Texas, (1869)]
“In that case, the Confederate government is characterized as one of paramount force."
"The Confederate government, the Court observed, differed from these temporary governments in the circumstance that its authority did not originate in lawful acts of regular war; but it was not on that account less actual or less supreme, and its supremacy, while not justifying acts of hostility to the United States, “made obedience to its authority in civil and local matters not only a necessity, but a duty.” All that was meant by this language was that as the actual supremacy of the Confederate government existed over certain territory, individual resistance to its authority then would have been futile, and therefore unjustifiable. In the face of an overwhelming force, obedience in such matters may often be a necessity and, in the interests of order, a duty. No concession is thus made to the rightfulness of the authority exercised.”
[Williams v Bruffy (1887)]
Under these circumstances, according to the court, the US government had a right to act as they did.
“It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.”
(White v. Texas, (1869))
“Nor was there a rebel government de facto in such a sense as to give any legal efficacy to its acts.”
“It was not recognized by the national nor by any foreign government.”
“It was not at any time in possession of the capital of the nation.”
“It did not for a moment displace the rightful government. That government was always in existence, always in the regular discharge of its functions, and constantly exercising all its military power to put down the resistance to its authority in the insurrectionary states.”
(Hickman v. Jones (1869))
“The power exercised in putting down the late rebellion is given expressly by the Constitution to Congress. That body made the laws, and the President executed them. The granted power carried with it not only the right to use the requisite means, but it reached further and carried with it also authority to guard against the renewal of the conflict and to remedy the evils arising from it insofar as that could be effected by appropriate legislation.”
“At no time were the rebellious states out of the pale of the Union. Their rights under the Constitution were suspended, but not destroyed. Their constitutional duties and obligations were unaffected, and remained the same. A citizen is still a citizen, though guilty of crime and visited with punishment. His political rights may be put in abeyance or forfeited. The result depends upon the rule, as defined in the law, of the sovereign against whom he has offended. If he lose his rights, he escapes none of his disabilities and liabilities which before subsisted. Certainly he can have no new rights or immunities arising from his crime.”
(White v. Hart (1871))
“In such cases, the state has inherently the right to use all the means necessary to put down the resistance to its authority and restore peace, order and obedience to law.”
“In such cases, the state has inherently the right to use all the means necessary to put down the resistance to its authority and restore peace, order and obedience to law.
“If need be, it has the right also to call on the government of the Union for the requisite aid to that end. Whatever precautionary or penal measures the state may take when the insurrection is suppressed, the proposition would be a strange one to maintain that while it lasted, the county was not a part of the state, and hence was absolved from the duties, liabilities, and restrictions which would have been incumbent upon it if it had remained in its normal condition and relations.”
[See White v. Hart (1871)]
Treason is often associated with secession. The USSC cases cited consider this relationship.
“No crime is greater than treason.”
[Hanauer v. Doane (1870]
“Supporters of the usurpation in the war against a usurped government do not incur the penalties of
treason.” [Thorington v. Smith 1868]
“A prosecution in a so-called “court of the Confederate States of America,” for treason in aiding the troops of the United States in the prosecution of a military expedition against the said Confederate States is a nullity, and the fact that the tribunal had clothed itself in the garb of the law gives no protection to persons who, assuming to be its officers, were the instruments by which it acted."
The fact that a man was himself a traitor against the United States does not necessarily prevent his recovering damages against other traitors for having maliciously arrested and imprisoned him before a so-called court of the Confederate States, for being a traitor to these; the alleged treason having consisted in his giving aid to the troops of the United States while engaged in suppressing the rebellion.”
[Hickman v. Jones (1869)]
Emmerich de Vattel (1758), The Law of Nations, written before any of the above history occurred, is quoted in Williams v Bruffy (1887). It describes the nature of civil war.
This is particularly pertinent to the situation we see in the United States today. The first sentence speaks to irreconcilable differences within a state.
Vattel says:
“A civil war breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties who consider each other as enemies and acknowledge no common judge. Those two parties therefore must necessarily be considered as thenceforward constituting, at least for a time, two separate bodies, two distinct societies. . . . On earth they have no common superior. They stand, therefore, in precisely the same predicament as two nations who engage in a contest and, being unable to come to an agreement, have recourse to arms. This being the case, it is very evident that the common laws of war – those maxims of humanity, moderation, and honor which we have already detailed in the course of this work – ought to be observed by both parties in every civil war. For the same reasons which render the observance of those maxims a matter of obligation between state and state, it becomes equally and even more necessary in the unhappy circumstance of two incensed parties lacerating their common country.”
All that Vattel means by this language is that in a civil war, the contending parties have a right to claim the enforcement of the same rules which govern the conduct of armies in wars between independent nations – rules intended to mitigate the cruelties which would attend mutual reprisals and retaliations. He has no reference to the exercise of legislative power by either belligerent in furtherance of its cause. The validity of such legislation depends not upon the existence of hostilities, but upon the ultimate success of the party by which it is adopted. [emphasis added]
It is unnecessary to pursue the subject further. Whatever de facto character may be ascribed to the Confederate government consists solely in the fact that it maintained a contest with the United States for nearly four years, and dominated for that period over a large extent of territory. When its military forces were overthrown, it utterly perished, and with it all its enactments. Whilst it existed, it was regarded, as said in Thorington v. Smith, “as simply the military representative of the insurrection against the authority of the United States.” 75 U. S. 8 Wall. 1; Keppel’s Adm’rs v. Petersburg Railroad Co., Chase’s Decisions, 167.
(Williams v Bruffy (1877))
Commentary: