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The Civil war CourT While history reckons the beginning of the Civil War from the firing on Fort Sumter on April 12, 1861, in Texas the contest over disunion had been raging for years. For a decade, U.S. senator Sam Houston had struggled grimly to steer a middle course through the crisis over slavery, denouncing northern abolitionists in Boston itself, but even more bitterly excoriating the South’s extreme secessionists.1 The latter were determined to establish their own cotton-growing nation, notwithstanding the fact that the North had repeatedly sought to accommodate their demands . Houston was forcibly retired from the senate in 1859 by the Texas Legislature, but among the people, pro-Union sentiment was strong enough to almost immediately elect him governor of the state.2 The election of Abraham Lincoln as president in 1860 was the catalyst for the southern breakout. In Texas, proslavery fire-eaters such as Williamson Oldham and Associate Justice Oran Roberts called for a secession convention to withdraw Texas from the United States.The extralegal election of delegates was held on January 8, 1861; the convention met on January 28 and unanimously elected Justice Roberts president; a secession ordinance was quickly passed and slated for a popular referendum on February 23. Hoping for a judicial opinion that withdrawing Texas from the Union was illegal, Houston turned to the Court but found no help in Wheeler, a secessionist whose reputation for tenaciously held views was equaled by his distaste for arguing about them.3 Oran Roberts was even less useful; his part in the upcoming rebellion so disgusted Houston that the governor pardoned a murderess from the penitentiary when her lawyer pointed out that it was Roberts who had denied her appeal.4 Young Bell, however, extended Houston a straw to grasp: although Bell registered the opinion that secession was constitutional , he believed that only the legislature could effect it. That body was not then meeting, and Houston declined to call, and made it known that he six 67 THe CiviL war CourT would not call, a special session to pull Texas out of the Union. It bought him a little time, but the legislature, many of whose members were also members of the Secession Convention, endorsed the actions of that extralegal body.5 When submitted to the people, the referendum passed by a vote of 46,129 to 14,697. That majority was deceptive, however. The ordinance failed in several counties along the Red River, as well as in Austin and most of the surrounding counties. And in fact, the huge majorities piled up for secession in the cotton counties were achieved in part by suspending the practice of secret balloting. When Justice Bell went to cast his vote in Brazoria County, the ballot handed him was a brightly colored piece of pasteboard with the words for seCession printed on it. As one observer described the scene: “Justice Bell was at that time an expert penman. He raised his right knee and steadied it against the edge of the table at which the election officer sat, placed the ticket on his knee, asked for a pen—which was handed him—with which he thoroughly blotted out the word ‘For,’ and, in script that was . . . beautifully distinct, he wrote the word ‘Against.’ The presiding judge . . . [remarked,] ‘Judge Bell, I am very sorry to see you cast that vote, and you will regret it.’”6 It would have taken extraordinary courage for ordinary Texans of Unionist persuasion to face down poll officers in the manner that Bell did. In fact, the vote in Brazoria County was 527 for and 2 against—the other vote coming from Bell’s brother.7 In later years,Chief Justice JohnWilliam Stayton considered Bell’s vote against secession “perhaps the most heroic act of his life, and manifested a self-sacrifice and patriotism which could not be suspected.”8 When Sam Houston left the U.S. Senate in 1859 and was replaced by Hemphill, Royall T. Wheeler became chief justice. Once the Civil War had begun in earnest, the behavior of Texas’s three justices mirrored their differing sentiments about the war. Roberts, who was nearing forty-seven and had authored a dozen opinions since the opening of hostilities, resigned from the bench to organize and lead the Eleventh Texas Infantry.9 Roberts’s chair, after he left, was filled by George Fleming Moore, lately a Confederate army colonel but also, more to the point, the erstwhile court reporter...

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