[These articles embody the substance of several lectures given in the Pleading and Practice Course in the Law Department of the University of Texas. They have been condensed and arranged for publication at the request of parties interested in the subject and in The Quarterly. To the lawyer and the student of governmental institutions the collection and citation of authorities, it is hoped, will be valuable. If they shall stimulate in any degree a desire to study Texas institutions in the light of her own history, the purpose of their publication will have been attained.—J. C. T.]
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The jurisprudence of Texas is in many respects different from that of any other country. It is a resultant of the combined forces of the Civil and Common law. For centuries these two great systems of jurisprudence have controlled the governments of Southern and Western Europe, the Civil law having its sway over the Latin, and the Common law, over the Anglo-Saxon and kindred peoples. In connection with them in their several jurisdictions has grown up the splendid civilization of Europe. As these several European nations established their colonies in the New World each colony brought with it the traditions, habits, and character of its parent state; and these influences of the Old World determined, to a large extent, the character of the several social and governmental institutions of the New.
England was a Common law country, and in all her colonies, that system was the base of colonial jurisprudence. Spain held most rigidly to the ancient Roman or Civil law and that system was the base of the jurisprudence of all her American dependencies. Neither system could be transplanted intact. The natural and social conditions in the two hemispheres were too different, and each code of laws received characteristic modifications, first by those in authority in Europe, and subsequently by the colonists and their descendants. The respective characteristics of the English and Spanish peoples manifested themselves here and the changes in the English Common law by the Anglo-Americans were much greater and more fundamental than those wrought by the Spanish-Americans in the Spanish Civil law.
Texas furnished a meeting place and battle ground for these two peoples and their institutions. The Spanish-American and the Spanish Civil law were in possession of the territory. The invasion was by the Anglo-American and the Common law. Between the peoples, the struggle was sharp, short, and decisive. The Anglo-American was victorious. Between the systems of jurisprudence, the contest was protracted and the result a compromise. The Common law ultimately prevailed, but its victory involved the loss of some of its most cherished doctrines.
The founders of the government of Texas were free to choose the materials for their structure from whence they would. Their sympathies were with the Common law, but the Civil law had been in force; and marital relations, land titles, and other rights permanent in their nature had grown up under it. Sudden and radical changes would have been prejudicial, if not impracticable, and the Texans, in their wisdom, declined to disturb too violently existing institutions. On the contrary, they adopted many of the Civil law doctrines, modifying them to suit their purposes and conditions, and retained them as part of the permanent jurisprudence of the country.
Thus it will be seen that our Texas law rests upon the Common law of England, as adapted to American conditions by the several States of the Union prior to the Texas Revolution and upon the ancient Roman law, as modified in its transmission through Spain and her American dependencies, and is formed, to a large extent, from selections from each. In most instances, these selections were wisely made and the result is a blending in one homogeneous whole of much that is best in each of the two great sources from which the material was taken.
The peculiarities of the system thus established embrace matters both of substantive and adjective law. The most interesting relate to the first of these divisions—the law regulating substantive rights; but these are apart from our present purpose, which concerns only so much of the adjective law—or law of procedure—as is involved in the development of the judicial system.
This development may be conveniently, though somewhat arbitrarily, divided into two periods—the first extending from the establishment of the Mexican Republic, in 1824, to the annexation of Texas to the United States, in 1845; the second extending from annexation to the present time. The first of these periods we may designate as the formative, and the second as the modifying.
A court may be broadly, though somewhat technically, defined as an agency created by the sovereign to determine rights and apply the sanctions of the law to individual conduct. The aggregate of such agencies, with their co-ordinated powers, existing in any government, constitutes the judicial system of that government. The character of this system depends upon the kind and number of these agencies; and these, in turn, depend largely, though not entirely, upon four considerations: first, the conception held by the sovereign of the purposes to be accomplished by these agencies and the power necessary to be conferred upon them; second, the basis of the distribution of this power among the several agencies; third, the number and kind of officers who are to represent or constitute such agencies; and, fourth, the methods of procedure in such agencies. Other elements enter in but these are the most potent. It would be tedious to attempt to trace the changes in these several regards in the development of our system and no effort will be made to do so. Still it will be well to bear these thoughts in mind as we consider the subject.
At the beginning of this century, Texas was an undeveloped Spanish province, inhabited almost exclusively by Indians and Mexicans. Soon thereafter, a few emigrants from the United States settled within her borders. At first, they were without influence, but as time passed and their numbers increased, they grew in importance and strength until, in 1836, they were powerful enough to successfully resist the military despotism of Santa Anna and establish an independent nation. For approximately ten years this national existence was maintained, and then the Republic of Texas voluntarily became one of the United States of America.
During this period, the history of Texas is one of intense interest and great suggestiveness. Probably the life of no other people shows such rapid advancement, or, in the same length of time, furnishes such opportunity for studying social and political growth.
As stated above, prior to the revolution in Mexico, the Roman Civil law, with its various Spanish modifications, was in force in all the dependencies of Spain in the North American continent. The change of government wrought by the revolution necessitated material changes in its jurisprudence; still this Civil law remained as its base. After the overthrow of the usurper Iturbide, the Mexican congress reassembled and adopted the “Constitutive Act of Federation” as the plan of government for the Mexican nation. This act was promulgated January 31, 1824.
In this federation, Texas was combined with Nuevo Leon and Coahuila, forming the Internal State of the East. 7 This constitutive act denied to the several States the power to adopt permanent constitutions and organize permanent governments until the permanent Federal Constitution should be adopted. In the meantime, the existing State governments were to continue provisionally. 8 By Decree No. 403, of date May 7, 1824, the Mexican Congress divided the Internal State of the East, separating Nuevo Leon from Coahuila and Texas. 9 From this time until the Texas Revolution Coahuila and Texas constituted a State. The first Constituent Congress of Coahuila and Texas met on August 13, 1824, at Saltillo, and by Decree No. 1 declared itself duly installed, and inaugurated the provisional State government.
Section 10 of this Decree is as follows:
“The judicial power shall, for the present, be vested in the authorities by which it is now exercised in the State, and in the administration of justice they shall be governed by the laws in use so far as they are not opposed to the form of government adopted. 10
This provision continued the former Civil law courts.
The “Constitutive Federal Government” was superseded by the adoption of “the Federal Constitution of the United Mexican States, sanctioned by the General Constitutive Congress, on the 4th of October, 1824.” This constitution was intended to be permanent. It was modeled, to a large extent, on the Constitution of the United States, although the influence of Spanish and Civil law ideas is manifest throughout the instrument. It recognized practically the same division of power between the national and State governments that exists in the Constitution of the United States. The division of the powers of each of these governments into legislative, executive and judicial departments was declared, though the lines of separation are not identical with those obtaining in Common law countries, the most noticeable difference being in regard to the right of construing the constitution and statutes. This power was conferred exclusively on the Congress, and no question as to the meaning of the constitution or a statute, nor of the violation of the former by the latter, could be determined by the courts. If such difficulties should arise they were to be called to the attention of Congress and it was to resolve the doubt; on the other hand, Common law courts had for centuries unhesitatingly exercised the power to interpret and construe statutes, and the American Common law courts, from the organization of the Supreme Court of the United States, have repeatedly exercised the power of determining the constitutionality of the acts of Congress and of the State legislatures.
The permanent constitution of the State of Coahuila and Texas was not promulgated until March the 11th, 1827. 11 This instrument clearly shows the influence of the various forces then striving for the mastery. It is neither Civil law nor Common law, but is manifestly a compromise between the spirit of conservatism, holding to the traditions and institutions of the past, and the spirit of innovation, insisting upon the adoption of a government similar to that of the United States of the North.
Under this Constitution, until 1832, the State Congress was to consist of twelve deputies, only two of whom were to be from Texas, the other ten having an exclusively Mexican constituency. The first Congress assembled on July 1, 1827, 12 and the first Governor was inaugurated on August 1, 1827. 13
The judiciary title of this Constitution consists of thirty-four articles. 14 The system of courts contemplated by it was composed of the inferior tribunals theretofore existing and a Supreme Court to sit at the capital having jurisdiction of appeals from the more important inferior courts throughout the State. In this system of courts was vested all the judicial power. No special tribunals were to be created, and no retroactive laws were to be passed, but all proceedings were to be uniform, according to pre-established rules and to the written constitution. The military was subordinated to the Civil authorities. The courts were forbidden to construe or pass on the validity of any constitutional provision or statute, the determination of all such matter being vested exclusively in Congress. Attempt to arbitrate was made a condition precedent to the right to litigate, except in special cases. No indictments were required in criminal prosecutions. Petty offences were dealt with summarily without formal trial or right of appeal. In more serious violations of the law, the accused might be arrested and detained for forty-eight hours without formal charges, but if no such charges were made within that time, he was required to be released. Prosecutions and trials were to be public. Confiscation, torture, and compulsion were forbidden; seizures and searches were declared unlawful, except in specified cases, and must then be made in conformity to law.
Article 192 is worthy of reproduction; because it is the first mention of a jury in any law ever in force throughout Texas territory; and also because it indicates the attitude of Congress and the people in reference to this institution. It is as follows: “One of the main objects of attention of Congress shall be to establish the trial by jury in criminal cases, to extend the same gradually, and even to adopt it in Civil cases in proportion as the advantages of this valuable institution become practically known.”
The contrast between its doubtful and experimental tone and the vigorous and imperative language of the Anglo-American constitutions on this subject is sharp and clear. The spirit of doubt and indecision expressed in the article dominated those charged with its enforcement, and it was not until April 13, 1834, seven years thereafter, that any active steps were taken by Congress to establish trial by jury. It is true that on page 60 of the Laws and Decrees of Coahuila and Texas, as published authoritatively in Texas in 1839, appears this title:
“DECREE NO. 39.
“Law for the Regulation of Justice.”
Neither text nor date appears. The next preceding decree is dated June 20, 1827, and the next succeeding June 22, 1827. References to this decree in other portions of the laws of Coahuila show it to have been an enactment of some length, evidently designed to meet the conditions in the Mexican portion of the State rather than in Texas.
On April 13, 1834, was passed Decree No. 277, commonly known as the “Chambers Jury Law.” It comprised an hundred and forty articles, extending from page 254 to page 270 of the Laws and Decrees of Coahuila and Texas. It is extremely interesting and instructive, but its length forbids its reproduction. Its title and preamble are as follows:
“DECREE NO. 277.
“The Constitutional Congress of the free, independent and sovereign State of Coahuila and Texas, desirous to provide for the happiness and prosperity of their constituents, and to comply with the obligation imposed upon them by the 192nd article of the constitution, decree the following:
“A plan for the better regulation of the administration of justice in Texas.”
The article of the Constitution referred to is the one quoted above.
This act was to be operative in connection with the constitution, and the courts provided by it were to be subordinate to the Supreme Court. So the Texas system, after its passage, consisted of the Supreme Court of Coahuila and Texas, as created by the Constitution and statutory courts provided for by this act.
These statutory courts consisted of, first, a superior court of Texas, to be presided over by a superior judge, with a circuit comprising the whole of Texas, which was divided into three districts, namely, Bexar, Brazos, and Nacogdoches, in each of which the superior judge was to hold court three times each year at designated times and places; second, courts of less jurisdiction, in each municipality, to be held by a primary judge; and, third, still inferior courts in the smaller political sub-divisions. This act was, by its terms, exclusive, and undertook to supplant all courts theretofore existing in Texas. In most cases submitted to them the decisions of the lowest courts were final. The primary courts had no jurisdiction to try criminal cases, except the most trivial misdemeanors; but the primary judges had extensive powers as examining and committing magistrates. In civil matters, however, the jurisdiction of the primary courts was very extensive. They had exclusive original jurisdiction of all suits involving more than ten dollars in value, without regard to the nature of the litigation. The decision in all such cases was final, unless appeal was prosecuted to the superior court. The superior court had exclusive original jurisdiction in all criminal cases, except the smallest misdemeanors, and appellate jurisdiction in all civil cases tried in the primary courts. Appeal lay from all judgments of the superior courts to the Supreme Court of the State.
The procedure in these courts was not regulated by the rules either of the Civil or Common law, but was peculiar to itself. The general provisions regarding juries are important enough to quote: Art. 2.
“All cases, civil and criminal, shall be tried by juries in the manner and form prescribed by this law.”
Art. 6.“For the trial of civil causes, there shall be in every municipality a tribunal for each primary judge, composed of the judge, a subaltern sheriff, and the jury. Their sessions shall be held every two months of the year.
Art. 7.“In all causes, civil and criminal, the jury shall be composed of twelve men, who shall be sworn, and the joint opinion of eight of them shall be considered the decision of the jury.”
Art. 24.“Juries are the judges of all the facts in controversy, and all the laws concerning evidence, subject to the instructions from the judge, but they have the right to differ with him in opinion; but, in regard to all other laws, they shall be regulated strictly according to their literal tenor.
Art. 25.“The facts established by the decision of the jury shall be considered as conclusive, and con not be controverted before any tribunal or authority, except in the single case of the corruption of the jury.”
Art. 72.“The judge shall make such observations upon the evidence and facts adduced on the trial as he may think proper and necessary for the instruction of the jury, who shall retire for deliberation.”
Art. 74.“The verdict of the jury being agreed upon by the number required by law, it shall be committed to writing, expressing all the important circumstances that may have been established by the evidence, and shall be signed by all the jurors. Those, however, who may dissent from the verdict, shall be permitted to express their separate opinion.”
It is readily apparent that the jury contemplated by this act was a very different institution from the Common law jury, or that with which we are now familiar. No provision is made for a grand jury.
The petit jury decided questions of law and fact, both as to the admission of evidence and its legal effect. The verdict could be rendered by eight or more jurors, and the minority could file dissenting opinions. The verdict was conclusive upon the court in which it was returned, and all appellate courts, except in the one case of the corruption of the jury.
There were numerous other differences between the procedure provided for these courts and the practice in the courts with which the Anglo-Americans had been familiar. Probably the most noticeable is the absence of recognition of the Common law distinction between legal and equitable rights and remedies, and the giving to one tribunal jurisdiction of all causes, without regard to that distinction. Another is the requirement of an attempt to arbitrate as a condition precedent to suit; another is the provisions as to pleading. Here the contrast is so great that I quote a few paragraphs, as follows: Art. 94.
“In order to commence an action in writing, the complainant shall present himself before the primary judge of the respective jurisdiction, and shall signify his demand by a petition, plainly and clearly expressed, accompanied by a certificate of having attempted in vain a conciliation with the opposite party, and without this requisite the demand shall not be admitted.”
Art. 101.“Neither of the parties shall be permitted to present more than two writings; and the term of three days shall be allowed for the replica, counted from that of the contestation; and the same time shall be allowed for the duplica, counted from that of the replica; and the judge shall deliver these documents to the parties to whom they may respectively appertain immediately on receiving them.”
The superior court contemplated in this act was never organized in any of the three districts, and no session of such court was ever held; hence, this first attempt to establish a Texas judicial system was of little, if any, practical effect. The state of the country was too unsettled to permit of orderly proceedings in any department. The causes which culminated in the Texas revolution were actively at work, and the attention of all parties was filled with other things than private litigation. Theoretically, this law remained in force until the meeting of the Consultation at San Felipe de Austin, on October 15, 1835, and the establishment by it of the provisional government, consisting of a governor, lieutenant governor, and council, who were authorized to administer the affairs of state.
This consultation did not declare nor contemplate national independence for Texas; it strove to accomplish the restoration of the national constitution of 1824. The plan of provisional government agreed upon conferred almost absolute power upon its officers, acting as a council. Among other things, this council was to exercise the power of courts of admiralty and maritime jurisdiction. It was especially required to organize a provisional judiciary.
The three articles relating to the latter, are as follows: Art. 5.
“There shall be constituted a provisional judiciary in each jurisdiction represented, or which may hereafter be represented in this House, to consist of two judges, a first and second, the latter to act only in the absence or inability of the first, and to be nominated by the Council and commissioned by the Governor.
Art. 6.“Every judge, so nominated and commissioned, shall have jurisdiction over all crimes and misdemeanors recognized and known to the Common law of England; he shall have power to grant writs of `habeas corpus' in all cases known and practiced to and under the same laws; he shall have power to grant writs of sequestration, attachment, or arrest, in all cases established by the `Civil Code' and `Code of Practice' of the State of Louisiana, to be regulated by the forms thereof; shall possess full testamentary powers in all cases; and shall also be made a Court of Records for conveyances which may be made in English, and not on stamped paper; and that the use of stamped paper be, in all cases, dispensed with; and shall be the `Notary Public' for their respective municipalities; all office fees shall be regulated by the Governor and the Council. All other civil proceedings at law shall be suspended until the Governor and General Council shall otherwise direct. Each municipality shall continue to elect a sheriff, alcalde, and other officers of Ayuntamientos.
Art. 7.“All trials shall be by jury, and in criminal cases the proceedings shall be regulated and conducted upon the principles of the Common law of England; and the penalties prescribed by said law, in case of conviction, shall be inflicted, unless the offender shall be pardoned, or fine remitted; for which purpose a reasonable time shall be allowed to every convict to make application to the Governor and Council.”
In these ordinances is the first Texas recognition of the English Common law. By them it was adopted as the law in all criminal cases. Judicial functions were, however, suspended in all civil matters, except in cases of special emergency, and as to these, the codes of Louisiana—another Civil law country—were adopted. The Council was authorized to order the opening of the courts for the trial of civil cases, if, in its discretion, this should be expedient.
Having elected a Governor and Council, the Consultation committed the government to them, and adjourned on November 14, 1835, to meet on March 1, 1836. The Council organized and took charge of the government. From time to time, judges for the different municipalities were elected and inducted into office. On January 16, 1836, the Council passed an act entitled “An Ordinance and Decree for Opening the Several Courts of Justice, Appointing Clerks, Prosecuting Attorneys, and Defining Their Duties, etc.,” which was approved January 22, 1836. This is too long for insertion. Its most important provisions were: first, to open the courts for civil as well as criminal business; second, to reiterate the terms of the executive ordinance, adopting the Common law of England in all criminal matters; third, to specially provide for grand juries; fourth, to continue the authority of the Louisiana codes in the special cases mentioned in the executive ordinances; fifth, to continue in force the former laws of Coahuila and Texas in all other civil matters; sixth, to authorize appeals from the decision of the primary court in any municipality to the like court in any adjoining municipality; and, seventh, to increase the jurisdiction of alcaldes to cases involving as much as fifty dollars. 15 The most striking peculiarity of this plan is the absence of any court of last resort, without which uniformity of decision is unattainable. As the plan, however, was only temporary, this omission was no serious defect.
The Provisional Government, though embarrassed by much internal strife, and the disordered condition of the country, sustained itself against the hostile invasions from Mexico. Difficulties increased, and the Council decided that it was proper that the Convention, which was to assemble on March 1, 1836, should be more thoroughly representative than the adjourned Consultation, and on December 10, 1835, it passed an ordinance providing for an election, to be held throughout the state, on February 1, 1836, to select delegates to such a body, to meet at Washington. 16 The Governor objected to some of the provisions of this act, and vetoed it, but on the succeeding day it was passed over his opposition. 17 The ordinance calling for this election is not set out in the journals of the Council. The preamble to the journal of the Convention gives the date of the passage of the ordinance as December 11, and of its approval by the Governor as December 13. The dates given herein are taken from the journals of the Council. The election for delegates was duly held.
The Convention assembled at Washington on March 1, 1836, and immediately organized. On the next day it adopted the Texas Declaration of Independence, and proclaimed the Republic of Texas a free, sovereign, and independent Nation. In this new nation, the Anglo-American element was overwhelmingy predominant, and its traditions, sympathies, and prejudices were all in favor of the Common law. One of the grievances of the people against the Mexican government, as set forth in this Declaration of Independence, is in these words:
“It has failed and refused to secure on a firm basis the right of trial by jury, that palladium of civil liberty, and that only safe guarantee for the life, liberty and prosperity of the citizen.”
It was necessary to form a constitution as a basis of permanent national existence, and as no vote of the people could be taken on it then, or in the near future, and as the provisional State government had been superseded, it was necessary to make provision for a temporary National government. The Convention addressed itself vigorously to these several tasks, and on March 16th adopted an executive ordinance providing for a Government ad interim, and on March 17 passed unanimously, and signed the constitution of the Republic of Texas; and, having elected officers for the temporary government, adjourned without day. As men who could bring things to pass, the members of that Convention stand without peers. The swiftness of their work is equaled only by its quality and effectiveness.
The executive ordinance thus adopted, is as follows:
“Whereas, We, the people of Texas, through our delegates, in General Convention assembled, for the purpose of framing a constitution, and organizing a government under that constitution, free, sovereign, and independent; and finding from the extreme emergency of the case, and our critical situation, that it is a duty that we owe to our fellow citizens and ourselves, to look upon our present danger with a calmness unruffled and a determination unsubdued; and at the same time to pursue a prompt and energetic course for the support of our liberty, and the protection of our property, and our lives; therefore,
1st.“Resolved, That we deem it of vital importance to forthwith form, organize, and establish a government `ad interim,' for the protection of Texas, which shall have full, ample, and plenary powers to do everything which is contemplated to be done by the General Congress of the people, under the powers granted to them by the Constitution, saving and excepting all legislative and judicial acts.
2nd.“Resolved, That said Government shall consist of a chief executive officer, to be styled the President of the Republic of Texas; a Vice-President, Secretary of State, Secretary of War, Secretary of the Navy, Secretary of the Treasury, and Attorney General, whose salaries shall be fixed and determined by the first Congress of the Republic.
3rd.“Resolved, That all questions touching the powers hereby confided to these officers shall be decided by a majority of said officers.
4th.“Resolved, That the President be elected by this convention; and that the candidate or the individual having the majority of the whole number of votes given in, shall be, and is hereby, declared to be duly elected.
5th.“Resolved, That the Vice-President, the aforesaid Secretaries and the Attorney General be elected by this Convention, a majority of the whole number of votes being requisite to a choice.
6th.“Resolved, That the members of this body vote for the above named officers `viva voce.' ”
The government thus inaugurated was not state but national, embodying all the attributes of sovereignty. Actual hostilities were then going on, and naturally more attention was given to the executive department, than to either the legislative or judicial. The only reference to either of the latter in the ordinance is to deny to the Government ad interim the power to exercise their respective functions. The change in the government growing out of the substitution of national for state sovereignty was fully recognized in the constitution of the Republic; but no provision conforming the existing judiciary to such change was made in the executive ordinance for the Government ad interim, and President Burnet and his cabinet found themselves without courts authorized to deal with national or international matters. Several vessels were captured, and it became a very practical and perplexing question as to who should deal with these prizes, and determine the questions of maritime and international law arising. The difficulty, and the steps taken to meet it, are given quite graphically in the first message of President Burnet to the First Congress of the Republic, October 4, 1836, 18 as follows:
“The judicial department of the government is in a very imperfect state. By the constitution, the old system is abolished, and an entirely new judiciary is created; but it was not considered advisable by the executive government to make any further innovations upon the established course than necessity imperatively demanded. The courts were closed to civil business, and they were thought to be adequate to the conservation of the public peace of the country; but I am apprehensive that that opinion is illusory, and that a more energetic administration of criminal law is indispensable. The increase is an invariable concomitant on increase of population.
“Under the existing system, there was no tribunal in the country vested with maritime jurisdiction, and consequently none competent to adjudicate questions arising from captures on sea. Some prizes had already been taken, and it was due the character of our navy and the country that a regular and lawful disposition should be made of them. The government, therefore, concluded to appoint a district judge for the district of Brazos, within which it was probable all prizes then taken would be brought, or to which they could easily be transported. I accordingly appointed Benjamin C. Franklin, Esquire, to that office. It remains to the wisdom of Congress to determine how soon the new organization shall be perfected.”
The exact date of this appointment is not given. This action in effect anticipated the adoption of the constitution of the Republic, and gave Judge Franklin the powers and jurisdiction of a district judge under that instrument. His appointment, and the value of his services, were recognized by Congress, which made an appropriation for the payment of his salary. 19
On July 23, 1836, the Government ad interim ordered an election to be held on the first Monday in September for the adoption or rejection of the constitution of the Republic, and the election of officers thereunder. The constitution was adopted.
At the date at which the subject was introduced, the whole jurisprudence of the country, substantive and adjective, was the Spanish Civil law. Up to the time now reached Common law ideas had so far prevailed that in all criminal matters it, the Common law of England, had become the law of Texas; and in civil matters, juries had been introduced; but in all other respects, the Spanish law still prevailed.
The system of courts adopted by the constitution of the Republic consisted of, first, one Supreme Court with appellate jurisdiction only, composed of a chief justice and the several district judges throughout the State, as associate justices; second, district courts, which had exclusive original jurisdiction in all admiralty and maritime cases, in all cases against ambassadors, public ministers, and consuls, of all criminal cases punishable with death, and original jurisdiction in all civil cases, when the matter in controversy amounted to one hundred dollars, or more; third, county courts, one in each county; and fourth, justice courts in the smaller political subdivisions. The jurisdiction of the district court, except as indicated above, was not exclusive, and the jurisdiction of the inferior courts was not fixed by the constitution; so that the divisions of jurisdiction among these courts was left largely to Congress.
Congress at once set to work to bring governmental order out of the existing chaos and to provide for the establishment and maintenance of all the instrumentalities necessary to this purpose. The judicial department received its full share of attention and acts were passed organizing and fixing the jurisdiction of the system of courts contemplated by the constitution. As the first Texas legislation by the Anglo-Americans on this subject these acts are important and still interesting.
The act organizing the Supreme Court passed December 15, 1836. Some of its sections are as follows: Section 1.
“Be it enacted by the Senate and House of Representatives of the Republic of Texas in Congress assembled:
“That there shall be established in this Republic a court to be styled the Supreme Court of the Republic of Texas, which court shall consist of one supreme judge, to be styled the Chief Justice; to be elected by joint vote of both houses of Congress, and such judges as shall be elected judges of district courts, who shall continue in office during the time prescribed by the constitution. The Chief Justice shall receive a salary of five thousand dollars per annum, payable semi-annually at the treasury of the Republic.
Section 2.“The Supreme Court shall be held annually at the seat of government, on the first Monday in December, and a majority of all the judges shall be necessary to constitute such a court.
Section 3.“The said Supreme Court shall have jurisdiction over, and shall hear and determine all manner of pleas, plaints, motions, causes and controversies, civil and criminal, which may be brought before it from any court in this Republic, either by appeal or other legal process, and which shall be cognizable in said Supreme Court according to the constitution and laws of this Republic: Provided, That no appeal shall be granted, nor shall any cause be removed into the Supreme Court in any manner whatever until after final judgment by decree in the court below, except in cases particularly provided for by law.
Section 4.“When, by appeal or in any other manner permitted by law, the judgment, sentence, or decree of the court below shall be reversed, the Supreme Court shall proceed to render such judgment, or pronounce such sentence or decree as the court below should have rendered or pronounced, unless it be necessary, in consequence of the decision of the Supreme Court, that some matter of fact be ascertained, or some damages be assessed by a jury, or when the matter to be decreed is uncertain, in either of which cases the suit, action or prosecution, as the case may be, shall be remanded to the court from which it was brought for a more definite decision.”
Section 8.“The said court, or any judge thereof, in vacation, may grant writs of injunction, supersedeas, and such other writs as the laws permit to the judgments or decrees of the county or district courts, on such terms and conditions as the laws may prescribe in cases of appeals, and also to grant writs of habeas corpus, and all other remedial writs and processes granted by said judges by virtue of their office, agreeably to the principles and usages of law, returnable as the law directs, either to the Supreme Court or to any judge of said court, as the nature of the case may require.” 20
The jurisdiction of the district court was defined by act approved December 22, 1836, as follows:
“Section 4. The district courts in the several counties of the Republic, shall have original jurisdiction of all suits of whatsover nature or description, when the matter in controversy shall be one hundred dollars or upwards, and which are not especially cognizable in some other court established by law; and shall have power to hear and determine all prosecutions in the name of the Republic, by indictment, information, or presentment for treason, murder, and other felonies, crimes and misdemeanors, committed within their respective jurisdictions, except such as may be exclusively cognizable before a justice of the peace, or in some other court of this Republic; and shall, in criminal cases, have and exercise all the powers incident and belonging to a court of oyer and terminer and general jail delivery, and generally to do and perform all other acts lawfully pertaining to a district court of this Republic. And the judges of said courts, and each of them, either in vacation or term time, shall have authority to grant writs of habeas corpus, mandamus, injunction, supersedeas, and all other remedial writs known to the law, not repugnant to the Constitution, returnable according to law, into the Supreme Court, or either of the said district courts, as the case may be.”
The provisions relating to appeals was as follows:
“Section 15. Any party may appeal from any final judgment or decree of any district court, during the term at which the decree was rendered, to the Supreme Court, provided the amount in controversy amounts to three hundred dollars, upon entering into bonds and security, to be approved of by the court, in double the amount of the debt or damages in the said suit, for prosecuting the same with effect, or performing the judgment, sentence or decree, which the Supreme Court shall make or pass thereon, in case the applicant shall have the case decided against him.” 21
The organization and jurisdiction of the county court was provided for by act approved December 20, 1836, as follows: Section 1.
“Be it enacted by the Senate and House of Representatives of the Republic of Texas in Congress assembled:
“That there shall be established in the several counties of this Republic an inferior court of law which shall be styled the county court, of the county of —, to be composed of one chief justice, who shall be elected by joint ballot of both houses of Congress, and shall hold his office for a period of four years, and two associate justices, who shall be selected by a majority of the justices of the peace of each county, from among their own body, at the beginning of each and every year, and the justices so elected shall attend the county courts, or pay a fine to be assessed by the chief justice not exceeding one hundred dollars.”
Section 6.“The several county courts of this Republic shall have original jurisdiction of all suits and actions for the recovery of money, founded on any bond, bill promissory note, or other written contract, covenant or agreement whatsoever, or any open account where the sum shall exceed one hundred dollars, and shall have concurrent jurisdiction with the district courts in such suits and actions: Provided: That no suit relative to the title of land shall be tried and determined in said court, and generally to do and perform all other acts, and exercise all other powers, lawfully pertaining to a county court within this Republic.”
Section 24.“The chief justices of the county court shall be judges of probate for their respective counties, shall take the probate of wills, grant letters of administration of the estates of persons deceased, who were inhabitants of or residents in said county, at the time of their decease, shall appoint guardians to minors, idiots, and lunatics, and in conjunction with the associate justices, shall examine and settle the accounts of executors, administrators, and guardians; and said chief justice shall have full jurisdiction of all testamentary and other matters appeartaining to a probate court within their respective counties.”
In addition to the jurisdiction thus conferred, these courts had supervision and control of the business matters of the county, roads, etc., such as our county commissioners now have.
The provisions relating to appeals are as follows: Section 13.
“Any party may appeal from any final judgment or decree of any county court, provided the amount in controversy shall exceed two hundred dollars, to the district court for said county, in the same manner and under the same restrictions as provided in the sixteenth section of `an act establishing the jurisdiction and powers of the district court,' and the forty-second section of the aforesaid act, shall apply equally to the county courts, so far as is consistent with this act.”
Section 26.“Any person may appeal from any decision or decree of any court of probate, within ten days after such decision or decree shall have been rendered, to the district court of the county, provided such appellant shall give bond with good and sufficient security, to be approved by said court of probate, conditioned that said appellant shall prosecute said appeal to effect, and perform the sentence, judgment, or decree which the said district court shall make therein, in case the cause be decided against said appellant.” 22
The justices of the peace had large power as committing magistrates, but seem to have had no power to finally try any criminal case.
Their jurisdiction in civil cases was as follows: “Justices of the peace shall have jurisdiction of all suits and actions for the recovery of money on any account, bond, bill, or promissory note, or other written contract, covenant, or agreement whatsoever, or for specific articles, where the sum demanded does not exceed one hundred dollars.” 23
Section 7 of the general provisions of this constitution is: “So soon as convenience will permit, there shall be a penal code formed on principles of reformation, and not of vindictive justice; and the civil and criminal laws shall be revised, digested and arranged under different heads; and all laws relating to land titles shall be translated, revised and promulgated.”
Section 13 of the judiciary article of the Constitution is: “Congress shall, as early as possible, introduce by statute the Common law of England, with such modifications as our circumstances, in their judgment, may require, and in all criminal cases the Common law shall be the rule of decision.”
In obedience to this mandate, the First Congress incorporated in the judiciary legislation of its first session, the following article:
“The Common law of England, as now practiced and understood, shall, in its application to juries and to evidence, be followed and practiced by the courts of this Republic, so far as the same may not be inconsistent with this act, or any other law passed by this Congress.” 24
Thus, on these two important branches of the adjective law, evidence and trial by jury, the Civil law and prior statutory provisions were superseded, and the rules of the Common law, to which the citizens had been accustomed, were introduced.
Other Common law methods of procedure were not adopted. The few years of their experience with the administration of justice in all civil cases in one court, even under the very great disadvantages then existing, had demonstrated to these pioneers, who were wise enough to receive the truth from any quarter, that the maintenance of separate courts of law and equity was not to be desired, and they declined, therefore, to incorporate this feature of the Common law into the system they were framing. In regard to pleading, the same influences operated. Neither the system obtaining in courts of the Common law, nor in courts of Equity, was entirely adapted to the new conditions. The Common law system, with its single issue, and its forms of action, could not be adjusted to the procedure necessary in a court of blended jurisdiction; and the Equity system was not in all things suited to jury trials; besides, there were elements of formalism in each, which might well be looked upon as hindrances, rather than aids, in arriving at justice. On the other hand, the pleadings of the Civil law were very simple, and admirably adapted to the development of truth. 25
The laws of Coahuila and Texas regarding pleadings, as before quoted, provided for a petition by the plaintiff, a contestation by the defendant, a replica by the plaintiff, and a duplica by the defendant. In these pleadings, the parties were respectively allowed and required to set forth, in a plain and intelligible manner, the facts upon which they respectively relied to sustain their positions before the court; in short, to state to the court the real truth of the matter in controversy, so far as they might be able.
The responsibility of choosing between these two systems, the Common law and the Spanish Civil law, devolved primarily on Congress. On December 20, 1836, Congress passed an act organizing the district courts. Its only section referring to pleading is as follows: “It shall be the duty of the plaintiff, or his attorney, in taking out a writ or process, to file his petition, with a full and clear statement of the names of the parties, whether plaintiff or defendant, with the causes of action, and the nature of relief he requests of the court.”
This section makes no mention of defensive pleadings; but the courts interpreted it, in the light of the constitutional provision, that old laws should continue until changed by Congress, as a practical adoption of the system theretofore obtaining, and so enforced it. The earliest mention by our Supreme Court of “petition and answer” as a system of pleading, occurs in the third paragraph of the opinion rendered at the January term, 1840, in Winfred vs. Gates, Dallam, 364. This opinion declared that the Spanish system of pleading was still in force. The exact date of the opinion is not given; but it was the ninth case decided by the Supreme Court of the Republic, at the January term, 1840.
The Fourth Congress of the Republic, early in its first session, January 20, 1840, passed an act entitled:
“An Act to Adopt the Common Law of England, to Repeal Certain Mexican Laws, and to Regulate Marital Rights of Parties.”
Sections 1 and 2 of this act are as follows: Section 1.
“Be it enacted by the Senate and House of Representatives of the Republic of Texas, in Congress assembled, That the Common law of England, so far as it is not inconsistent with the Constitution or acts of Congress now in force, shall, together with such acts, be the rule of decision in this Republic, and shall continue in full force until altered or repealed by Congress.
Section 2.“Be it further enacted, That all laws in force in this Republic prior to the 1st of September, one thousand eight hundred and thirty-six (except the laws of the Consultation and provisional government now in force; and except such laws as relate exclusively to grants and the colonization of land in the State of Coahuila and Texas, and also, except such laws as relate to reservations of islands and lands, and also of salt lakes, licks, and springs, mines, and minerals of every description, made by the General and State governments) be, and the same are hereby repealed.”
The effect of this, unqualified by other legislation, would have been to annul all laws enacted prior to the adoption of the Constitution of the Republic, except those specially retained, and to substitute therefor the Common law and the Constitution and then existing statutes of the Republic; and, as Congress had not passed any general practice act, the Common law system would have been in force. This was prevented, however, because at the same session, Congress passed an act entitled, “An Act to Regulate Proceedings in Civil Suits.” This was approved February 5, 1840.
Section 1 is as follows:
“Be it enacted by the Senate and House of Representatives of the Republic of Texas, in Congress assembled, That the adoption of the Common law shall not be construed to adopt the Common law system of pleading; but the proceedings in all civil suits shall, as heretofore, be conducted by petition and answer; but neither petition nor answer shall be necessary in a cause to recover money before a justice of the peace.”
A portion of Section 12 is as follows:
“In every civil suit, in which sufficient matter of substance may appear upon the petition, to enable the court to proceed upon the merits of the cause, the suit shall not abate for want of form. The court shall, in the first instance, endeavor to try each cause by the rules and principles of law. Should the cause more properly belong to equity jurisdiction, the court shall, without delay, proceed to try the same according to the principles of equity. * * * Provided, nothing herein contained shall be so construed as to prejudice the right of the parties to a trial by jury.” 26
This is the first reference in Texas to the difference between law and equity; but it must be noticed that there is no separation of the jurisdictions; both law and equity are to be administered by the same court in the same cause, and trial by jury is not to be precluded by the exercise of equity powers by the court.
Congress, at the same session, passed an act that laws passed by it should not go into effect until forty days after adjournment, unless otherwise expressly provided. 27 This act had such a provision, but there was none in either the act adopting the Common law, or the one denying its application to our system of pleading. These two acts, therefore, went into effect at the same time, forty days after adjournment of Congress, and must be construed as parts of the same act. Hence, the Common law system of pleading in civil suits did not obtain in Texas at any time under these acts.
In the case of Fowler vs. Poor, decided by the Supreme Court of the Republic, January term, 1841, Dallam, 403, this language occurs:
“Our system of proceedings in civil suits differs from that known in England, and adopted in most of the States of the United States. * * * The mode of conducting proceedings in civil suits by petition and answer, is so highly appreciated by the legislative power of this Republic, that at the last session of Congress, it was expressly enacted, that “the adoption of the Common law shall not be construed to adopt the Common law system of pleading, but the proceedings in all civil suits shall, as heretofore, be conducted by petition and answer.” Here is strong legislative declaration that the proceedings in civil suits had been heretofore commenced by petition, and that they shall be conducted in the same manner for the future.”
In Hamilton vs. Blank, Dallam, 587, decided at the June term, 1844, the Supreme Court says: “The object of our statutes on the subject of pleading, is to simplify as much as possible that branch of the proceedings in courts which, by the ingenuity and learning of both Common and Civil law lawyers and judges, has become so refined in its subtleties as to substitute in many instances the shadow for the substance. Our statute requires at the hands of the petitioner to a court of justice only a statement of the names of the parties plaintiff and defendant, a full and fair exposition of his cause of action, and finally the relief which he asks.”
Many other interesting cases could be given from the decisions of the Supreme Court of the Republic to show that the practical interpretation of the statutes under consideration was that the Common law system of pleading was never in force in Texas, and that the purpose of the lawmakers was to eliminate as far as possible all technicalities and useless forms, and require only a full and fair statement of the facts upon which the party relied, and the relief sought from the court, supplemented by a few indispensable matters, such as names and residences of parties, etc., to enable the court to act intelligently. This is substantially the Texas system of pleading to-day.
There were no material changes made during the Republic in the judicial system thus established. In dealing with this period of our history, we must not lose sight of the important fact that at this time the Supreme Court consisted of a chief justice and the district judges sitting together. This plan, impracticable under most circumstances, was of great value then; it was the unifying and harmonizing element in the system. The laws of Coahuila and Texas were in a language unknown to most of the judges, and to a large extent inaccessible to the few that could have translated them. The enactments of Congress on methods of procedure were meagre, and the meeting and interchanging of views on these matters by the several district judges, when assembled for the purpose of holding the Supreme Court, must have been salutary in its influence, and have had a strong tendency to introduce the same procedure in all courts.
During the year 1845 it was definitely determined that the Republic of Texas should surrender its nationality, and take a place as a State in the Federal Union. A State constitution looking to this end was prepared and adopted; State officers were elected; and on February 16, 1846, the State government was organized, the Republic of Texas passed into history, and in her stead the State of Texas became a member of the United States of America. 28
The formative period of her history had passed. Though there have been many modifications made from time to time to adjust herself to the varying conditions of her development, the fundamental ideas of her jurisprudence have remained unchanged. To trace the most important of these modifications affecting her judicial system will be the purpose of a subsequent paper.
8. Arts. XXIV. and XXV., Constitutive Acts of the Mexican Federation.
9. Legislacion Mexicana, Dublan y Lozano, I., 706.
10. Laws and Decrees of Coahuila and Texas, p. 4.
11. Laws and Decrees of Coahuila and Texas, p. 343.
12. Ibid., p. 47.
13. Ibid., p. 63.
14. Laws and Decrees of Coahuila and Texas, p. 337.
15. Orders and Decrees of the General Council, p. 135.
16. Proceedings of the General Council, p. 101.
17. Ibid., p. 112.
18. Journal House of Representatives of First Congress, pp. 17 and 18.
19. Acts of First Congress, p. 276.
20. Acts of First Congress, p. 79.
21. Acts of First Congress, p. 198.
22. Acts of First Congress, p. 147.
23. Ibid., p. 141.
24. Ibid., p. 157.
25. The Laws of Las Siete Partidas (translated by Lislet &Carleton), Vol. I., law 1, p. 36; law 32, p. 52; law 31, p. 51; law 40, p. 57; laws 7, 8, 9, 10 and 11, pp. 70-74.
26. Laws of Fourth Congress, p. 88.
27. Ibid., p. 6.
28. Cocke vs. Calkin &Co., 1 Texas, 541; Calkin vs. Cocke, 14 Howard, 235; Lee vs. King, 21 Texas, 577.
How to cite:
Townes, John C., "SKETCH OF THE DEVELOPMENT OF THE JUDICIAL SYSTEM OF TEXAS. I ", Volume 002, Number 1, Southwestern Historical Quarterly Online, Page 29 - 53. http://www.tsha.utexas.edu/publications/journals/shq/online/v002/n1/article_4.html
[Accessed Mon Dec 1 18:25:19 CST 2008]
