The Southwestern Historical Quarterly, Volume 62, July 1958 - April, 1959

Southwestern Historical Quarterly

In evaluating the decisions of the three Reconstruction courts,
it should be noted that the first which operated under the Con-
stitution of 1866 and presidential Reconstruction was composed
for the most part of judges who served the state of Texas in a
judicial or other governmental capacity either before the Civil
War or after 1874. This court represents no break with the Texas
tradition. Its opinions are set forth in Volumes XXVII to XXX
(p. 364) of the Texas Reports, and the only question raised as to
the validity of their decisions as precedents involved the argu-
ments of congressional as opposed to presidential Reconstruction.
George W. Paschal, a staunch Unionist, appointed Supreme Court
reporter by the military authority, had the following to say in his
preface to Volume XXIX of the Texas Reports:
The useful career of these gentlemen [Moore, Coke, Donley,
Willie, and Smith] was closed by Major General Sheridan, who re-
moved them from office on the ground that the proper administra-
tion of the reconstruction laws requested it.
But probably this arose more from the fact that all these gentle-
men were disqualified under the XIVth constitutional amendment
and the reconstruction laws than anything objectionable in the de-
cisions of the court. Beyond their indisposition, as a court, to meet
the questions which had grown out of the rebellion, and a disposi-
tion to give validity to some of the acts of the Confederate govern-
ment, their opinions will, doubtless, be as much respected as those in
any previous volumes of Texas Reports.
This is not the proper place to enter into argument with those
who believe that the constitution of 1866 was void, and, therefore,
that all the judgments of the courts created under it are void. My
mind is accustomed to recognize existing facts and governments as
they are, and not to suppose that the validity of acts depends upon
the characters and minds of the men who perform them. The profes-
sion will feel a pride in these volumes, regardless of who decided the
causes. And the judges may justify appeal to them as monuments of
their learning and the rapidity with which they dispatched business.
The second Reconstruction Court-the so-called Military
Court, had no Texas constitutional basis and hence its deci-
sions do not operate as precedents under the rule of stare de-
cisis; that is, they need not necessarily be followed in subse-
quent litigation. The opinions of this court are found in Volumes
XXX--XXXIII (p. 583) of the Texas Reports. In Taylor vs.
Murphy,22 Chief Justice Moore said:
22Texas Reports, L, a91.

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Texas State Historical Association. The Southwestern Historical Quarterly, Volume 62, July 1958 - April, 1959. Austin, Texas. The Portal to Texas History. http://texashistory.unt.edu/ark:/67531/metapth101173/. Accessed October 21, 2014.