The Southwestern Historical Quarterly, Volume 18, July 1914 - April, 1915 Page: 362
438 p. : ill. ; 23 cm.View a full description of this periodical.
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The Southwester i Historical Quarterly
Of these questions, the second was of greatest import. In de-
ciding it, the court was to place on record a precedent of funda-
mental and permanent value. Was Texas a State in the Union?
If not, the case must be dismissed because of the constitutional
limitation as to the original jurisdiction of the Supreme Court.
The most important questions occasioned by the war were involved,
and it was necessary for the court to consider them in order to
determine and formulate the constitutional principles emerging
from those extraordinary conditions. Concerning this question of
jurisdiction was waged one of the great battles of our legal his-
tory. The briefs of the various lawyers covered several hundred
pages, so carefully and exhaustively were the details treated.2
Paschal based his theory and constitutional interpretation upon
the postulate that: The Union is indestructible and indissoluble;
that Texas had surrendered all rights of self-determination when
she entered the Union, and all acts in contravention of that sur-
render were null and void. He contended that
The State as a State did not and could not rebel against the
United States. But the magistrates of the State, including the
Legislature, refused to take the oath required by the Federal Con-
stitution (and) took an oath to support the pretended government
at war with the United States. . . . The secession ordinance
was void; the attempted dissolution of the Union was void; the re-
lations to the new Confederacy was void; all legislation in opposi-
tion to the Constitution, treaties and laws of the United States,
was void; and, therefore, the body politic no more ceased to be a
State in the Union than was the vast domain geographically elided
from the boundaries of the United States.
Through all the manifold changes undergone, the status of Texas
as a State in the Union remained the same; and all efforts at
alteration were of no effect, because they had no standing in law.
This was very largely an echo of the popular view in the North,
and it possessed in the eyes of the court the great weight derivable
from the approval of public opinion.
Phillips, in opposition, invited the attention of the court to the
2The arguments of Paschal, Merrick, Pike, Phillips, Hughes, and the
other lawyers may be found in an abridged form in 25 Texas (Supple-
ment) Reports. In a complete form they can be found in the file of
briefs in the Supreme Court library at Washington and in the library
of the New York Bar Association. Since the litigation connected with
this case covers a number of years, the briefs were collected in the volume
for 1876. File Copy of Briefs, 1876, 1 Org'l-22 Org'l.362
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Texas State Historical Association. The Southwestern Historical Quarterly, Volume 18, July 1914 - April, 1915, periodical, 1915; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth101064/m1/368/: accessed May 4, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting Texas State Historical Association.