The Southwestern Historical Quarterly, Volume 19, July 1915 - April, 1916 Page: 32
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The S5outhwiestern Historical Quarterly
Supreme Court. In addition to denying Texas the right of invok-
ing the original jurisdiction, which would have dismissed the case,
they thought that it was a question in which the court was bound
by the action of the legislative department of the government. It
is to be presumed, perhaps, that the Justices had in mind the en-
forcement of the guaranty clause. Congress by declaring the ex-
isting governments in the Southern States to be illegal had re-
fused to recognize them as being established and republican in
form. The court, according to this presumption, would be de-
barred from admitting a suit from a government of such question-
able standing. On the merits of the case, these Justices concurred
with the majority of the court. Mr. Justice Grier, however, ob-
jected to the decision on all the points raised. His dissenting
opinion is a very interesting and spirited document.
To the question: Is Texas one of these United States? he
answered a decided negative. "This is to be decided," he said,
"as a political fact, not as a legal fiction. This court is bound to
know and notice the public history of the nation." He main-
tained that after considering the history of Texas during the time
intervening between the attempt at secession and the filing of the
suit, he failed to discover, at any part of that period, the at-
tributes of Statehood. The common sense view, he maintained,
was outlined in the case of Hepburn & Dundass v. Ellxey by Chief
Justice Marshall, and he claimed that the test supplied in that
opinion for the ascertainment of the nature of a political com-
munity in the American Union was applicable to this case. When
Marshall's definition was applied to the facts of Texas history, it
proved definitely that that commonwealth was not a State in the
Union, since there were no representatives in Congress accredited
to her, and since the pretended State had not participated in the
last election of president. Instead, she was governed as a, con-
quered province by military power. The legislative power, fur-
thermore, had declared that Texas was a "rebel State" without
legal and republican government. What was the difference, he
inquired, between her status and that of the territories or the
Indian tribes. In the absence of organized Iebellion, they were
essentially alike in the fact that they were similarly governed,
and in that justice was administered by the United States courts.
The fact that the federal courts were in operation was no test of
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Texas State Historical Association. The Southwestern Historical Quarterly, Volume 19, July 1915 - April, 1916, periodical, 1916; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth101067/m1/40/: accessed June 26, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting Texas State Historical Association.