The Reconstruction Courts of Texas, 1867-1873 155
In reply, I have to say, in regard to the first of these cases, (Roun-
tree vs. Thomas3) that, in my individual opinion, the court by which
that case was decided did not exercise its functions under and by
virtue of the Constitution and laws of the State of Texas, but merely
by virtue of military appointment. And while I am as far as any one
from desiring to bring in question the validity of its acts in adjudi-
cating the cases which were disposed of by it, or from detracting the
respect properly due to its opinion, by reason of ability and legal
learning of the eminent gentlemen who constituted the court, and
who were no doubt selected on this account to discharge the impor-
tant duties intrusted to them by the general under whose direct con-
trol all the functions of government with us were then conducted,
nevertheless I cannot regard the opinion of this tribunal as authori-
tative exposition of the law involved in the cases upon which it was
called to pass, but merely as conclusive and binding determinations
of the particular case in which such opinion was expressed.24
The third Reconstruction Court-that is, the Semicolon Court,
belongs in a different category. In one sense this was not a Recon-
struction court at all in that it did not begin to function until
about the time Congress declared Reconstruction at an end.
As above pointed out, however, the date of the expiration of
Davis' term of office, which coincided with the end of the Semi-
colon Court, is generally considered as marking the end of Recon-
struction in Texas. Its opinions are contained in Volumes XXX
(from p. 585) to XXXIX, inclusive, of the Texas Reports.
From the constitutional standpoint, the basic enactments pro-
viding for the Supreme Court cannot be attacked without ques-
tioning the legality of the Constitutional Convention of 1868.25
23Ibid., XXXI, 286.
24It is of interest in passing to note that one of the leading cases construing the
Texas statute which adopts the common law as the rule of decision without adopt-
ing the English statutes is Paul vs. Ball, Texas Reports, XXXI, io, by Judge
Lindsay of the Military Court, who also wrote the opinion in Rountree vs. Thomas,
Texas Reports, XXXII, 268. Such precedential authority as the cases by this court
may possess rests entirely upon their intrinsic worth as expositions of the law and
such acceptance as may be indicated by their being cited with approval in sub-
250ut of a total of 56,678 white voters, 41,234 remained away from the polls.
Some were disqualified but many conservatives and Democrats voluntarily ab-
stained from voting in the belief (probably ill-founded) that their best interests
would be served by a defeat of the proposal to call a constitutional convention.
It was essential, under the election call, that at least one half of the eligible voters
participate in the election for a convention to be called. A little over half of the
vote of the state was polled, the election was declared legal, and the convention
was authorized.-Wortham, History of Texas, V, 82.
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 February 28, 2015.