The intermingling of two distinct races on the soil of Texas, with diverse customs and traditions of law, resulted in the mastery of one, but with a blended system of jurisprudence. The two acts cited further along, and forming, in fact, the subject of this paper, well illustrate the spirit of the times when men's minds, just breaking loose from the moorings of a barbaric past, were looking forward to something liberal and ennobling in law-making. And passed as they were amid the throes of a life and death struggle for existence, they reflect more honor on the Republic than the splendid campaigns of Bexar and San Jacinto. “Peace hath her victories no less renowned than war.” “There were giants in those days,” and bold, far-seeing statesmen, too, to legislate for humanity in all times to come, with the enemy at the gates.
Texas was warring with hostile Indians in the interior and menaced with a Mexican invasion in the west, when Mirabeau B. Lamar entered upon his duties as president. His message to the Congress, breathing a spirit of defiance to all the enemies of the Republic, with words of cheer to his countrymen, touching all subjects of public interest, calm and statesmanlike in tone, embraced in its scope an earnest recommendation to provide a system of education.
Among other things, the president says: “But it would be superfluous to offer to this honorable Congress any extended argument to enforce the practical importance of this subject. I feel fully assured that it will in the liberal spirit of improvement that pervades the social world, lose not the present auspicious opportunity to provide for literary institutions, with an influence commensurate with our future destinies. * * * Our young Republic has been framed by a Spartan spirit. Let it progress and ripen into Roman firmness and Athenian gracefulness and wisdom. * * * The present is a propitious moment to lay the foundation of a great moral and intellectual edifice which will in after ages be hailed as the chief ornament and blessing of Texas. A suitable appropriation of lands to the purpose of general education can be made at this time, without inconvenience to the Government or the people; but defer it until the public domain shall have passed from our hands, and the uneducated youths of Texas will constitute the living monument of our neglect and remissness.” 2
In response to the above message, Mr. E. W. Cullen, Chairman of the House Committee on Education, made an elaborate report, from which are given these pertinent extracts: “Your committee views it as one of the first and paramount duties of Congress to provide a system of general education; and although it is not in our power to carry into effect immediately a general system, yet we should lay the foundation while it is in our power by making suitable appropriations of the public domain and setting the same apart to enable us, so soon as our situation will permit, to establish primary schools and colleges where every class can receive alike the benefits and blessings of education. Intelligence is the only aristocracy in a government like ours (and the improved and educated has and will ever triumph over the ignorant and uneducated mind).” 3
The report concludes with recommending for passage a bill prepared by Mr. Cullen; as to which, W. H. Wharton, chairman of the Senate Committee on Education, says in his report: “The committee could present a long report on the importance of education, but believing that fact to be admitted by all, such a report would be commonplace and unnecessary. All that can be done at present is to secure a sufficient reservation of the public lands for the purposes of education. The system of schools can be amended hereafter. Inasmuch as the Committee on Education in the House of Representatives has offered a bill setting apart a certain quantity of lands for the purpose of education, your Committee deem any further action on the subject unnecessary at present.” 4
Mr. Cullen's bill accordingly, after a few changes for the better, became the law, as follows:
“An Act entitled an act appropriating certain lands for the establishment of a general system of education.
Section 1.“ Be it enacted by the Senate and the House of Representatives of the Republic of Texas in Congress assembled: That each county of this Republic shall have three leagues of land surveyed and set apart for the purpose of establishing a primary school or academy in said county, which said land shall be located and surveyed by the county surveyor or his deputy in each county, and to be paid the fees now alowed by law under the land law, out of the county treasury; provided, there is that quantity of good, vacant land in the counties; and further provided, that said land may be surveyed in any sized tracts; provided, that said lands shall not be surveyed in tracts less than one hundred and sixty acres. 5
Section 2.“Be it further enacted, That when there is not a sufficient quantity of good land that is vacant in any county, the County Court of such counties shall be, and they are hereby empowered and required to have surveyed upon any of the vacant lands of this Republic, said quantity of land, and pay the expenses of the land out of the county treasury.
Section 3.“Be it further enacted, That when said lands are surveyed in acordance with this act, the surveyor shall return a correct description of the same, with the field notes of the survey, to the clerk of the County Court, who shall record the same and forward a transcript of the same to the Commissioner of the General Land Office after it is recorded, with his certificate and seal of office thereto attached; and when the lands so surveyed are not situated in the county for which it is surveyed, the description and field notes shall be recorded in the county where it is surveyed, as well as in the county for which it is surveyed, and forwarded to the Land Office as above described.
Section 4.“Be it further enacted, That the President of the Republic be and he is hereby authorized and required to appoint a surveyor and have surveyed on and from any of the vacant lands of this Republic, fifty 6 leagues of land, which is to be set apart and is hereby appropriated for the establishment and endowment of two Colleges or Universities, hereafter to be created; 7 and that the President is hereby authorized to draw upon the Treasury of this Republic for such sum or sums of money as may be necessary for defraying the expenses to be incurred by locating and surveying said lands.
Section 5.“Be it further enacted, That said surveyor so appointed shall make out a complete description of the land so surveyed, and a neat and correct map of the same, and deposit them, together with the field notes, in the General Land Office of this Republic; shall also take and subscribe to this oath or affirmation: `I, A. B., do solemnly swear (or affirm) that I have well and truly discharged my duties to the best of my knowledge, skill, and ability, and that the field notes and description of said land are as correct as I could make them. So help me God.' Which said oath is to be taken before a Chief Justice of the County Court and deposited in the Land Office; and the surveyors of the different counties to survey the lands contemplated by this act shall take and subscribe the same oath, which shall be recorded in the clerk's office of the County Court.
Section 6.“Be it further enacted, That none of the lands appropriated and set apart by this act for the purpose of education shall be disposed of in any manner except by lease until the expiration of three years, and none of said lands shall be disposed by lease for a longer term than three years.
“John M. Hansford, “Speaker House of Representatives. “David G. Burnet, “Prest. Senate. “Approved Jan. 26, 1839. “Mirabeau B. Lamar.”
An amendatory act by the next Congress, approved February 5, 1840, made the chief justice and two associate justices of each county ex officio a board of school commissioners, and added another league to the three leagues before granted; making it the duty of the school commissioners to have said lands located and surveyed as early as might be convenient, and to organize any parts of their several counties into school districts for the purpose of establishing schools in the same, whenever in their opinion the population or interests of education required it.
None but graduates of some college or University might teach in the academic schools, while for the common schools the teacher had to give evidence of a good moral character, and capacity to teach reading, writing, English grammar, arithmetic, and geography.
The following is the educational endowment under the present Constitution as defined in Article VII:
Sec. 2.“All funds, lands, and other property heretofore set apart and appropriated for the support of the public schools; all the alternate sections of land reserved by the State out of grants heretofore made or that may hereafter be made to railroads or other corporations of any nature whatsoever; one-half of the public domain of the State; and all sums of money that may come to the State from the sale of any portion of the same, shall constitute a perpetual school fund.
Sec. 3.“One-fourth of the revenue derived from the State occupation taxes, and a poll tax of one dollar on every male inhabitant of this State between the ages of twenty-one and sixty years, shall be set apart annually, for the benefit of the public free schools, and in addition thereto there shall be levied and collected an annual ad valorem State tax of such an amount, not to exceed twenty cents on the one hundred dollars valuation, as, with the available school fund arising from all other sources, will be sufficient to maintain and support the public free schools of the State for a period of not less than six months in each year.” * * *
When Texas entered the Union, the statute of 1839 had attained the stability of a constitutional provision, and to-day, in its complete evolution, it stands for our system of education. And nothing has given Texas so much character at home and abroad as that. In none of its stages of development has it lacked for friends. To say nothing of President Lamar and its original movers, Governor Pease, under its sanction, induced the founding of a system of public schools and set it in operation. 8 And later on, in 1861, Governor Lubbock, expressly to save the educational fund from improper use, vetoed “An act making an appropriation for the mileage and per diem pay of the members and officers of the Ninth Legislature,” which, among other provisions, authorized for the purpose the use of the funds of the University, with other funds named. (Archives State Department, vol. 81, pp. 71-5.) All the statesmen in all the constitutional conventions assisted in its continued development. As for the higher education, besides Governor Roberts and Lieutenant Governor Storey, Senator John C. Buchanan, author of the act establishing the University of Texas, with his able coadjutors, R. M. Wynne, A. W. Terrell, John Y. Gooch, and J. B. Stubbs, 9 must have due credit. All these may be considered as executors of a bequest from the Texan fathers. And what a bequest is the magnificent educational system of Texas, embracing the common schools, the graded schools, the normals, and the great University at Austin, with its branches at Bryan and Galveston—all the outgrowth of the crude statute passed in 1839.
That the Republic of Texas was fully abreast of the age in reformatory legislation is well attested by this statute of the Third Congress: 10
“An Act entitled an act to exempt certain property therein named from execution.
Section 1.“Be it enacted by the Senate and the House of Representatives of the Republic of Texas in Congress assembled: That from and after the passage of this act, there shall be reserved to every citizen or head of a family in this Republic, free and independent of the power of a writ of fieri facias or other execution issuing from any court of competent jurisdiction whatever, fifty acres of land or one town lot, including his or her homestead and improvements not exceeding five hundred dollars in value, all household and kitchen furniture (provided it does not exceed in value two hundred dollars), all implements of husbandry (provided they shall not exceed fifty dollars in value), all tools, apparatus, and books belonging to the trade or profession of any citizen, five milch cows, one yoke of work oxen, or one horse, twenty hogs, and one year's provisions; and that all laws and parts of laws contravening or opposing the provisions of this act be and they are hereby repealed; provided, the passage of this act shall not interfere with contracts between parties heretofore made.
“Jno. M. Hansford, “Speaker of the House of Representatives. “David G. Burnet, “President of the Senate. “Approved Jan. 26, 1839.” “Mirabeau B. Lamar.”
Now, so far as we know, this appears to be the first homestead act ever passed in any country. The spirit of the age was in revolt against the harshness of the common law as to insolvent debtors; and its first effect was the abolition of imprisonment for debt. And the early repeal of the vindictive legislation authorizing such imprisonment is the proud boast of many States in the American Union. The Republic of Texas makes the prouder boast, that her first constitution expressly rejected this relic of barbarism.
Such dire results as the destruction of trade, etc., which were confidently predicted by some when the creditor lost the power to imprison the debtor, not having followed, the next step was to ameliorate the condition of the insolvent still more, by leaving in his possession, free from the demands of creditors, some of the means of subsistence. This was done in the American State of Alabama and in the Mexican State of Coahuila y Texas in the years 1833-34.
The Alabama statute provided “that one work horse, mule, or pair of oxen, one horse or oxcart, shall be retained by and for the use of every family in the State, free and exempt from levy or sale by virtue of any execution or other legal process.” 11 This was but scant recognition of the debtor's inalienable right to his means of earning a living for himself and family; but it proved to be the entering wedge for better legislation afterwards.
Below is the decree of Coahuila y Texas, No. 277:
Section X.“Things not implied are understood.
Art. 141.“Executions in all civil cases shall not deprive the debtor of those things understood as the only means of his lawful subsistence, nor of those which simply imply his preservation and protection. As
Art. 142.“Every man shall have the right and privilege of retaining his wearing apparel, bed clothing, cooking utensils, and the necessary implements of that trade, calling, or profession whereby he is enabled to obtain the means of support; as also his military accoutrements, of whatever name, nature, or kind they may be.
Art. 143.“If the debtor should be a man of family, the property of his wife and children must be respected, whether it be the property of purchase, increase, or gift; if a gift from the debtor, to be valid to the owner, it must be given, received, and recorded in the office of the alcalde of the jurisdiction previous to the time the present debt demanded by the sheriff was contracted.” 12
This decree, springing from the more refined jurisprudence of the civil law, more clearly enunciating the principle in question, is more comprehensive and satisfactory throughout than the crude American statute in Alabama.
Decree No. 277, of which the section quoted above is a part, created a judicial circuit called “The Superior Judicial Court of Texas,” with all its rules and regulations. The decree is better known among the old American colonists of Texas as Chambers' Jury Law, because it provided a system of jury trial, and because T. J. Chambers was the first superior judge.
This decree, however, was never put fully into operation in Texas, and it is impossible to tell now what might have been the effect. The approaching Revolution turned thought into other channels, and the discussion of laws gave place to the clash of arms. “Inter arma leges silent.” It was only after San Jacinto, and when such statesmen as Lamar and Rusk and such soldiers as Albert Sidney Johnston were in high office, that the Republic felt sufficiently composed to enter upon a system of legislation at once liberal, beneficient, and permanent. And of all the laws of the Third Congress none was of more far-reaching importance than the homestead statute. Exemption from forced sale before this time had applied only to personal property. Now for the first time it touched the realty. Under the provisions of this statute, the insolvent debtor has reserved both a home for his family and some means of support.
Though the homestead law of Texas marks the beginning of an era of beneficient legislation; yet curiously enough, little is known of the circumstances of its enactment. The bill met with little or no opposition, and its appearance in our statute book at first excited little notice or comment. The law was salutary in its effects, and six years later, at the Annexation Convention, it knocked for admission into the State Constitution. 13 Abner S. Lipscomb reported section 22 for the proposed Constitution, which reads thus:
“Section 22. General Provisions. The Legislature shall have power to protect by law from forced sale certain portions of the property of all heads of families, and in all cases the homestead of a family, not to exceed 160 acres of land, shall be exempt from sale by execution.”
Jno. Hemphill, afterwards Mr. Lipscomb's colleague on the Supreme Bench of the State, also gave the measure his hearty support. The distinguished President of the Convention, T. J. Rusk, left the chair to take part in the debates on the floor. He offered an amendment striking out 160 acres and inserting in lieu thereof 200 acres of land, which, after some discussion, was adopted. In this shape, with some other unimportant amendments, it passed, and is the law still as to the number of acres of land. There was scarcely any opposition to the homestead principle per se. The question was only as to its extent. The debates disclosed that the Alabama exemption statute of 1833 had been recently (1843) amended so as to embrace a homestead of 40 14 acres of land. The apparent success of the law in Alabama doubtless helped the passage of the Rusk amendment raising the quantity of land exempted by our homestead law to 200 acres.
The proposed section to the Constitution was carried by a vote of 42 to 14. Statesmen like Isaac Van Zandt and J. Pinkney Henderson voted “no,” not because they were opposed to the principle, but to indicate their dissatisfaction with the particular measure. Jas. Love, one of the delegates from Galveston, voted “no,” because, as he claimed, it was a discrimination against the poor. Jas. Scott, a delegate from Montgomery, opposed the whole exemption idea, and denounced the proposed section as a piece of dishonesty and a fraud on the rights of creditors. He carried his opposition so far as to have his protest spread on the record.
Once imbedded in the organic law, the homestead act has had a triumphant course through all the successive constitutional conventions. Surviving the contention of political parties and the shock of revolution, the homestead idea in its fullness is thus expressed in the existing statutes of Texas:
“The homestead of a family, not in a town or city, shall consist of not more than two hundred acres of land, which may be in one or more parcels, with the improvements thereon; the homestead in a city, town, or village, consisting of a lot or lots not to exceed in value five thousand dollars at the time of their designation as the homestead, without reference to the value of any improvements thereon.” 15
The following explanation is added in the statute:
“The exemption of the homestead provided for in this chapter shall not apply when the debt is due
1.“aFor the purchase money of such homestead, or a part of such purchase money.
2.“For taxes due thereon.
3.“For work and material used in constructing improvements thereon.”
Legislation in derogation of rights under the common law is, as a rule, strictly construed by the courts; but in deference to popular sympathy, doubtless, they give a liberal construction to the homestead law, and thus materially extend its provisions in case of doubt or ambiguity, and through successive constitutions and judicial decisions the principle has been continually growing in Texas. And the example of Texas has been contagious throughout the Union; so much so that in every State and Territory the exemption principle is recognized as to property, real or personal, or both. In fifteen or more States there are constitutional provisions for the exemption of the homestead from forced sale—the distinctive Texan idea. The principle is also recognized in Federal legislation and in the decisions of the Federal courts.
Who originated the homestead law? It would seem that the author of this law would be well known to the world. Not so, however. History does not claim to have found out his name, nor do the journals of the Congress disclose it. Neither do any of the congressional records that I have been able to examine in the State Department definitely point out his name. But there is, or rather was, another source of information—the man himself who claimed the honor, Judge Emory Rains, 16 then the member from Shelby and Sabine counties. The Judge was chairman of the Senate Judiciary Committee, to which was referred a joint resolution exempting certain property therein named from execution. This joint resolution, however, exempted only personal property, and not a homestead.
I can not trace this resolution or any bill in either house with certainty to the statute itself. “A bill to exempt certain property from execution” did pass the Senate on the day of adjournment, 17 though I can not ascertain its provisions, whether extending to realty or not. It was reported either from the Committee on Indian Affairs or the Committee on Public Lands, it is not certain which, but, of course, presumably the latter. The Senate Journals do not show the name of the member who offered the bill.
The exemption bill which passed the House 18 was introduced by Louis P. Cook. 19 On the last day of the session “a message was received from the Senate informing the House that the Senate had concurred in `An act to exempt certain property therein named from execution.' ” And this is the title of the enrolled bill which, passing both houses, became the law. This tends to show, but not conclusively, that the law originated from the House bill. If true, the credit of offering the bill evidently belongs to Cook, whoever may have conceived the idea and prepared the bill itself. I have yet to learn, however, that Cook ever claimed to have originated the homestead law.
Such well known Texans as Judge Reagan and Governors Lubbock and Roberts vouch for Judge Rains' character as a man of truth and honor, and Governor Roberts says unqualifiedly that he would implicitly believe any statement that Rains had made on this subject.
It only remains to add, that Judge Rains always claimed the honor of originating the homestead law. He made this claim repeatedly on the hustings and elsewhere from 1839 on, and there has never been any rival claimant for the honor. All the acquaintances of the Judge in Eastern Texas, the place of his residence, will bear witness to the truth of this statement.
From the foregoing, it may be accepted as true that the Republic of Texas led the way in homestead legislation, and that Emory Rains 20 framed the first homestead statute of the age.
Judge Rains was gathered to his fathers at a ripe old age, honored and respected in the little county that bears his name, and his ashes sleep well in a neglected grave on the banks of the historic Sabine.
3. House Journal, Third Congress, p. 271.
4. Senate Journal, Third Congress, p. 80.
5. Laws of the Republic of Texas, first session Third Congress, p. 134.
6. Twenty leagues in Cullen's bill.
7. “One to be established in the eastern and the other in the western part of Texas,” as in the original bill, was stricken out on its passage. Senator L. T. Wigfall, in his report on the university in the Seventh Legislature, held that the striking out the above clause indicated clearly that it was not intended to have two universities in different parts of Texas, but that the “two universities, as in the law, meant a university for each sex if necessary, one male and the other female.” Coeducation solved this difficulty.
8. Acts Sixth Legislature, and messages.
9. Journals and Messages Sixteenth Legislature, and Lane's History of the University of Texas.
10. Laws of the Republic of Texas, first session Third Congress, p. 125.
11. Clay's Alabama Digest, Sec. 47.
12. Edwards' “History of Texas,” p. 176.
13. See Weeks' “Debates of the Texas Convention,” p. 417 et seq.
14. Judge Baylor in debate said 160 acres; but see Clay's Alabama Digest, Secs. 48 and 49.
15. Revised Civil Statutes of Texas, Title XLII, Chap. II, Art. 2396.
16. Judge Rains was a Tennessean by birth, and came to Texas about the time of the coming of Austin's first colony; was alcalde, or judge, under the Mexican regime, and hence his title; was senator in the Texan Congress, member of the constitutional convention of 1845, and several times a member of the State legislature. He is not reported in Weeks' Debates of the Convention of 1845 as having made a speech; but he worked, as he assured me, for his favorite measure, the homestead provision, with all his might, and supported every amendment tending to its enlargement.
17. Senate Journal, Third Congress, p. 131.
18. House Journal, Third Congress, p. 238.
19. Cook was a New Yorker, a prominent member of the House in the Third Congress, and Secretary of the Navy in 1839. He died in 1849.
20. While I was holding the County Court for Van Zandt county in 1877, Judge Rains, who had business in the court, was a guest at my home in Wills Point, He then claimed, as he had done for decades before, that he originated the homestead law; and he told me many incidents of its origin, which in the main have slipped my memory. One incident, however, is clear, that he introduced his bill through a fellow member of Congress, and that it did not appear from the journals who was the author. His name appears spelled with an “e” in the Senate Journal of the Second Congress, but I had it from his own lips that he dropped the silent letter at quite an early period.
How to cite:
Raines, C. W., "ENDURING LAWS OF THE REPUBLIC OF TEXAS. I ", Volume 001, Number 2, Southwestern Historical Quarterly Online, Page 96 - 107. http://www.tsha.utexas.edu/publications/journals/shq/online/v001/n2/article_6.html
[Accessed Mon Dec 1 18:00:11 CST 2008]
