Civil War History - Secession and PoliticsWas it Slavery, or was it States Rights? Perhaps it was the election of Lincoln? What were the real reasons for Southern Secession and what were the political issues in this time of war? Find your answers here in the Secession and Politics Disussion.
your opinion. cite please where the court rulled on secesion.
First the Court had to show it had jurisdiction over the case:
"The other allegation presents a question of jurisdiction. It is not to be questioned that this court has original jurisdiction of suits by States against citizens of other States, or that the States entitled to invoke this jurisdiction must be States of the Union. But, it is equally clear that no such jurisdiction has been conferred upon this court of suits by any other political communities than such States.
"If, therefore, it is true that the State of Texas was not at he time of filing this bill, or is not now, one of the United States, we have no jurisdiction of this suit, and it is our duty to dismiss it." [74 US 700, 719]
And the Court ruled on secession as a necessary precursor to being able to rule on the facts of the case:
[begin quote]
Did Texas, in consecuence of these acts, cease to be a State? Or, if not, did the State cease to be a member of the Union?
It is needless to discuss, at length, 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, and sanction from the Articles of Confederation. By these the Union was solemnly declared to 'be perpetual.' And when these Articles 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?
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. 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. 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.' 12 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. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States. 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. 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.
Our conclusion therefore is, that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any act or declaration of any department of the National government, but entirely in accordance with the whole series of such acts and declarations since the first outbreak of the rebellion.
[end quote] [74 US 700, 724-726]
Quote:
Originally Posted by Hanny
your opinion.cite please how dicat is defined in law.
People with an IQ over 35 will know it's "dicta." Nico has already posted the definition.
Quote:
Originally Posted by Hanny
There are no scholars citing texas V white as a precednt or that it rulled on secesion, since it did neither in law.
Prof. James G. Randall, _Constitutional Problems Under Lincoln,_ cites Texas v. White as a precedent that ruled secession unconstitutional.
Prof. Daniel Farber, _Lincoln's Constitution_ cites Texas v. White as a precedent that ruled secession unconstitutional.
Prof. Harold Hyman, _The Reconstruction Justice of Salmon P. Chase: In Re Turner and Texas v. White_ cites Texas v. White as a precedent that ruled secession unconstitutional.
Robert Bruce Murray, _Legal Cases of the Civil War_ cites Texas v. White as a precedent that ruled secession unconstitutional.
Prof. Akhil Reed Amar of Yale University School of Law, in several writings, cites Texas v. White as a precedent that ruled secession unconstitutional.
Prof. Cass R. Sunstein, University of Chicago School of Law, cites Texas v. White as a precedent that ruled secession unconstitutional.
Quote:
Originally Posted by Hanny
Court cannot rule on anything not before it and argued on in court, it would make an appeal and overturning absolutly certain, along with loss of job.
Jurisisdiction is determined prior to hearing the case!!, not during it, what does the court do, stop half way when it finds it lacks jurisdiction?.
Dont post to me about law, your not competent to do so.
Far more competent than you are. Of course, a rock would be more competent than you are. The Court routinely rules on jurisdictional issues in its opinion before it proceeds to the facts of the case. Your ignorance of that fact merely shows you know nothing about the Supreme Court as well as everything else you've delusionally posted about.
Quote:
Originally Posted by Hanny
Teaxas is about bonds, the rulling in it was ovwerturned, Morgan makes no reference to dicata because dicta dont count and dont need overturning.
A portion of the ruling was overturned, not the jurisdictional ruling about secession. You don't have a clue about the law.
Quote:
Originally Posted by Hanny
Nope, none of these are cases on secesion, still less secesion in 1860.
Once again, your massive ignorance rears its head and you make another completely wrong and foolish claim.
Quote:
Originally Posted by Hanny
also since CSA was international recognised by many states, as a blockade can only be made against another states ports not your own, and many states recognised the blockade,
Wrong as always. You also have no understanding of international law.
Since the rest of your post is more of the same, we'll send it to its proper resting place.
Ex post facto appears to be a confusing concept, at least to me, it is.
Now, please correct me if I am wrong, but Congress or the legislative arm of the US Government, cannot create or enforce ex post facto laws.
But the United States Supreme Court does not issue or create ex post facto law when it ruled on secession in Texas v. White, but, with this ruling, stated this is what the Constitution said all along, that the court was merely saying in that ruling what the Constitution said about secession all along.
Prof. James G. Randall, _Constitutional Problems Under Lincoln,_ cites Texas v. White as a precedent that ruled secession unconstitutional.
Prof. Daniel Farber, _Lincoln's Constitution_ cites Texas v. White as a precedent that ruled secession unconstitutional.
Prof. Harold Hyman, _The Reconstruction Justice of Salmon P. Chase: In Re Turner and Texas v. White_ cites Texas v. White as a precedent that ruled secession unconstitutional.
Robert Bruce Murray, _Legal Cases of the Civil War_ cites Texas v. White as a precedent that ruled secession unconstitutional.
Prof. Akhil Reed Amar of Yale University School of Law, in several writings, cites Texas v. White as a precedent that ruled secession unconstitutional.
Prof. Cass R. Sunstein, University of Chicago School of Law, cites Texas v. White as a precedent that ruled secession unconstitutional.
And add the following:
"Until the war the advocates of state sovereignty could, despite the uniform case law in opposition to their view, continue to assert the temporary contractual nature of the Union. The defeat of the South meant the final repudiation of such an assertion. In the law itself this repudiation was marked by Texas v. White, decided by the Supreme Court shortly after the war ended.
"In Texas v. White, the State of Texas brought an original action to enjoin the payment of certain United States bonds owned by the state before the war and negotiated by the Confederate state government to the defendants. b]The key issue presented was whether Texas was then a state of the Union and, as such, capable of bringing suit[/b]. Defendants contended that it was not--that having seceded and not yet being represented in Congress, it was still out of the Union. According to the Court's opinion, the ordinance of secession by Texas was a legal nullity. Texas consequently always remained a state within the purview of the Constitution: 'When, therefore, Texas became one of the United States, she entered into an indissoluble relation. ... 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.'
"It is all too easy to dismiss the case as only the judicial ratification of the real decision on the validity of secession made at Appomattox Courthouse. To be sure, if the actual outcome of the conflict had been different, the Supreme Court decision could never have been made, but that is true because the constitutional nature of the Union would have been completely altered by military power. As a purely legal decision, under the Constitution as it is written, Texas v. White is sound. It is 'self-evident that the Union could scarcely have had a valuable existence had it been judicially determined that powers of sovereignty were exclusively in the States.' : the very language of the Constitution refutes the notion that the states have a sovereign right to secede at will." [Bernard D. Schwartz (Chapman Distinguished Professor of Law at University of Tulsa and author of forty books on the law and the history of the Supreme Court), _A History of the Supreme Court,_ p. 134]
Hickman v. Jones
"The rebellion out of which the war grew was without any legal sanction. 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." [76 US 197, 200]
White v. Hart
"The doctrine of secession is a doctrine of treason, and practical secession is practical treason, seeking to give itself triumph by revolutionary violence. The late rebellion was without any element of right or sanction of law. The duration and magnitude of the war did not change its character. In some respects it was not unlike the insurrection of a county or other municipal subdivision of territory against the State to which it belongs. 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 cnodition and relations. 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 in so far 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 wtih punishment." [80 US 646, 650-51]
Hanauer v. Woodruff
"If the Constitution be, as it declares on its face it is, the supreme law of the land, a contract or undertaking of any kind to destroy or impair its supremacy, or to aid or encourage any attempt to that end, must necessarily be unlawful, and can never be treated in a court sitting under that Constitution and exercising authority by virtue of its provisions, as a meritorious consideration for the promise of any one. The obligations of a traitorous combination, issued expressly to make war against and overthrow the government of the United States, can never give validity to any transaction which must seek the courts of that government for enforcement." [82 US 439, 442]
Okay, I have to weigh in. For my bona fides, how does a law degree from the University of Texas at Austin and 20 years of legal practice sound? I am a licensed and practicing attorney with my own 5 lawyer firm. I deal daily with court rulings and have to determine the precedential value of those ruling.
First as to dicta. Dicta is language in an opinion not necessary to that opinion. Per Black's Law Dictionary, Fifth Edition (1979), the recognized authority on legal definitions: dicta "Opinions of a judge which do not embody the resolution or determination of the court. Expression in a court's opnion which go beyond the facts before the court and therefore are individual views of author of opnion and not binding in subsequent cases. State ex rel. Foster v. Naftalin, 246 Minn. 181, 74 N.W.2d 249."
I can state unequivocably that no lawyer worth his salts would argue that the finding that Texas' secession was illegal and a nullity would argue that such was dicta. The finding was necessary to the holding of the case in that, if Texas had properly seceded, then the action of the Texas government in negotiating the bonds would have been legal. It is clear that the Supreme Court ruled that secession was illegal and such would be considered binding precedent of the Supreme Court.
As to ex post facto laws, Black's defines same as "A law passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed. By Art. 1, §10 of U.S.Const., the states are forbidden to pass "any ex post facto law." Most all state constitutions contain similar provisions against ex post facto laws..." [emphasis added]
In essence, if the state of Texas passed a law tomorrow proclaiming it illegal to drink beer on Sundays, which law was retroactive to January 1, 2008, then prosecuted me because last Sunday I drank a beer, then I could defend myself by alleging that the application of the law to me was unconstitutional as an ex post facto law.
Note, also, that the prohibition is against the states alone. No state may pass an ex post facto law.
The confiscatory acts were not, technically, a constitutional violation as an ex post facto law, as it was not a state action. One could argue that it was an ex post facto law in that it changed the contractual relation already existing between master and slave, but such laws are passed all the time. The recent changes to the Federal Bankruptcy Code changed the debtor/creditor relationship as to contracts already in effect, but no one attacks it as an ex post facto law.
A better argument against the Confiscation Acts were that they were an unconstitutional taking without due process and without just compensation. Under the doctrine of emminent domain, the government can take my property for the public good, but must compensate me for the fair market value thereof. However, since emmancipation was enshrined in the Constitution, that would make the action, obviously, constitutional.
__________________ "There must be more historians of the Civil War than there were generals figthing in it... Of the two groups, the historians are the more belligerent." David Donald, Lincoln Reconsidered (1961)
Thank you, thank you, THANK YOU, for your above post.
I sincerely appreciate it.
Sincerely,
Unionblue
__________________ "The American people and the Government at Washington may refuse to recognize it for a time but the inexorable logic of events will force it upon them in the end; that the war now being waged in this land is a war for and against slavery." Frederick Douglass
"Loyalty to our ancestors does not include loyalty to their mistakes." George Santayana
I've just read this thread, and something that Nico_Davout said has me needing to reply. If someone already covered this, than please ignore my post and move on.
Nico_Davout said:
Right to independence is something I believe. It can`t be decided by the law.
This just got me all kinds of fired up. First of all, independence, and the freedom it implies, can ONLY be bestowed by law.
It is laws that both provide and protect freedom and independence, and without them, there would exist only anarchy.
If you really do believe that no law can decide freedom and independence, I ask you how would you choose to live, and in fact even live at all, in a society where everyone can do as they please?
You could do anything you want in this society, but that would also be true of your neighbors. If you made them mad enough, or they just didn't like you, they could kill you and your family, take anything of yours they wanted, and you would be without recourse except to do the same to them. How long could humanity last under such conditions?
While some may see this as beyond the scope of the thread, I don't. The question of secession vs. provocation, who was right and who was wrong, all come down to this:
The people who started the Civil War, from BOTH sides, thought they were doing the right thing for themselves, or their people. In that sense, they were right. When it came to war as a means to achieve their ends, they were wrong.
Of course, everyone's entitled to their own opinion in our free country, and this has been mine.
__________________ "I will not lead my men in another such charge if Jesus Christ himself should order it!" -- Captain Thomas E. Barker, (acting) CO, 12th New Hampshire, Cold Harbor, Virginia June 3rd, 1864
If you really do believe that no law can decide freedom and independence, I ask you how would you choose to live, and in fact even live at all, in a society where everyone can do as they please?
No law can decide about freedom and independence of group of people which create nation. I do not agree with anarchy in social life, here we need a laws.
A gratifying string of very fine, informative posts! Thanks.
ole
__________________ I never knew a man who wished to be himself a slave. Consider if you know any good thing that no man desires for himself. A. Lincoln
We are a Nation goverened by the rule of law; that is the way it should be. It is what seperates us from anarchy and chaos.
__________________ Few take the trouble to understand or to view the American scene with perspective. And we Americans love to find ourselves guilty of something. However, it is never I who am guilty, but those other Americans, the past or present government or the other political party. Americans almost never find other countries guilty. It is always ourselves or our fancied influence in other countries. Louis L'amour
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