THE QUARTERLY OF THE TEXAS STATE HISTORICAL ASSOCIATION
VOLUME II. JULY, 1898, TO APRIL, 1899.
PUBLICATION COMMITTEE Dudley G. Wooten, George P. Garrison, Mrs. Bride Neill Taylor, Z. T. Fulmore, C. W. Raines. EDITOR. George P. Garrison. AUSTIN. TEXAS: PUBLISHED BY THE ASSOCIATION. 1899.CONTENTS.
NUMBER 1; JULY, 1898.
Oran Milo Roberts Dudley G. Wooten 1
The Old Fort at Anahuac Adele B. Looscan 21
Development of the Texas Judicial System John C. Townes 29
H. P. Bee F. R. Lubbock 54
The Cherokee Nation of Indians V. O. King 58
The Old Journal of Littleton Fowler Dora Fowler Arthur 73
Book Reviews 85
Notes and Fragments 94
Questions and Answers 99
Affairs of the Association 103
NUMBER 2; OCTOBER, 1898.
The Capitals of Texas O. M. Roberts 117
Rutersville College Julia Lee Sinks 124
Sketch of the Development of the Judicial System of Texas. II J. C. Townes 134
Enduring Laws of the Republic of Texas. II C. W. Raines 152
Notes on the History of La Bahía del EspÍritu Santo Bethel Coopwood 162
Early Experiences in Texas, II Rosa Kleberg 170
Notes and Fragments 174
Questions and Answers 179
Affairs of the Association 181
NUMBER 3; JANUARY, 1899.
The "Prison Journal" of Stephen F. Austin 183
Captain Adolphus Sterne W. P. Zuber 211
The Founding of the First Texas Municipality I. J. Cox 217
Life of German Pioneers in Early Texas Caroline von Hinueber 227
Two Letters From a Mier Prisoner 233
A Belated Colonist 237
Book Reviews and Notices 240
Notes and Fragments 243
Questions and Answers 248
Affairs of the Association 249
NUMBER 4; APRIL, 1899.
Descubrimiento de la Bahía del Espíritu Santo Damian Manzanet 253
Translation: Discovery of the Bay of Espiritu Santo Lilia M. Casis 281
The Battle of Gonzales Miles S. Bennet 313
Book Reviews and Notices 317
Notes and Fragments 319
Affairs of the Association 321
Vol. II. JULY, 1898. No. 1.
The Publication Committee disclaims responsibility for views expressed by contributors to the Quarterly.
Notwithstanding the multitude of those who, in a country like this, rise to comparative eminence among their fellow-men, and enjoy a measure of popular renown during their lives, there are very few who really achieve enduring distinction, or leave behind them such evidences of practical usefulness in having lived and labored, as to make them
“On Fame's eternal bead-roll worthy to be filed.”
Among the number of those in Texas who have attained this exceptional station was the venerable jurist, statesman, and patriot whose recent death has irreparably bereaved this Association, and in commemoration of whose virtues and services it has been deemed appropriate that I, his unworthy successor, should to-day briefly speak.
No more delicate and difficult office can devolve upon a speaker than to truthfully yet fitly pronounce proper words of memorial and eulogy upon one lately dead—especially if that one was both a public character and a personal friend. There is danger that such an address may rise to the pitch of extravagant laudation, or sink to the level of private panegyric. When it does either, it fails to serve the purpose of a true encomium and loses the value of a practical lesson. Every life whose services are worthy of public recital and remark has been a contribution to the history of the land and people in which its labors were wrought, and every attempt to describe and discuss such a life should in some degree answer the purposes of historical truth and subserve the interests of that philosophy of living which History is said to teach by example. These desirable attributes of a memorial address are thus outlined rather by way of introduction, than as prophetic of what I shall endeavor to say in the inadequate sketch of our late President and his life-work in the up-building of the State that reveres his memory and mourns his loss.
Oran Milo Roberts was a native of South Carolina, and although no appreciable portion of his life was spent there, the distinctive social and political influences of that State's historical attitude on all the current questions of his era were plainly visible in his private and public career. He was reared to manhood and began his active labors in the State of Alabama, where his early training as a lawyer and in the fundamental principles of constitutional government was very thorough and essentially practical. It was the period of incipient division between the North and South upon the great questions that later arrayed them in actual hostility. The leaders of Southern thought were marshaling their forces of logic and protest on the side of the strict construction, states-rights theory of the Federal Constitution, and the first sounds of that memorable conflict that afterwards thrilled the country with eloquence and argument and shook the continent with the roar of battle, were just beginning to challenge the attention and excite the alarm of conservative and observant men. Young Roberts was taught in that school of stoic statesmanship that never sacrificed a theory of political science to an advantage of commercial enterprise, and preferred the principles of the Constitution above the temporary seductions of industrial prosperity. How loyal he remained to the ideals of his youth was attested in the Secession Convention of 1861, on the field of battle, in his masterly discussions of Federal questions, and in the writings and lectures of his later years.
Having fairly entered upon the practice of the law and served a term in the legislature, at the age of twenty-six he came to the Republic of Texas. It was the darkest and most discouraging moment in the history of the new government. President Lamar's disastrous administration was just closing, bankruptcy and ruin stared the Republic in the face, Indian wars and domestic poverty had almost disheartened the people, and the menace of Mexican invasion filled the future with gloom and foreboding. And yet the men who had redeemed this land from tyranny and established its freedom on the foundations of constitutional order, were equal to the task of preserving and perpetuating what they had won. Whatever may be said of their successors in field and forum and in the paths of peaceful industry, the leaders and workers in Texas in that period from 1836 to 1846 have had no superiors in all the proud and potent prosperity of later years. Their practical good sense, their unfading faith in the ultimate success of the government, their broad and generous estimate of the things necessary to a nation's happiness and growth, their loyalty to the traditional virtues and institutions of their race, their wonderful acuteness and discernment in establishing the laws and policies of the Republic and State upon the highest and safest plane of patriotic wisdom, were something marvelous, considering the circumstances and conditions of the time. A recent reading of the debates and journals of the Constitutional Convention of 1845 leads me to affirm without hesitation that the proceedings of that body displayed a depth of devotion to fundamental truth in political philosophy, a practical appreciation of the essential features of a free government, and a liberality of policy in dealing with the problems of popular institutions, that are not surpassed in the reported deliberations of any similar body ever assembled on this hemisphere.
It was into this “goodly fellowship” of brave and thoughtful pioneers, lawyers, and statesmen that the young Alabama attorney and legislator came in 1841. His immediate success and sustained prominence among such men are the most conclusive proof of his ability, attainments, and personal worth. Accident will not account for such events, nor does adventitious circumstance supply a life-long support in the paths of public service and distinction. He settled at San Augustine, then the seat of civilization in Eastern Texas, and the center of that circle of skillful lawyers and strong men of whom Rusk and Henderson and Jennings and Ochiltree and K. L. Anderson were chiefs. The third year after his arrival in Texas, President Houston appointed him district attorney of that district, it being the Fifth Judicial District of the Republic. It is to be noticed that his first appearance in the reported decisions of the Supreme Court was as attorney for Sam Houston, in a case reported in the first volume of the “Reports.” It was an early tradition of the East Texas bar that Roberts was an exceptionally good prosecutor, not by the arts of oratory, but by his skill in the management of his cases and his shrewd judgment in the selection of his juries. That his service was satisfactory is demonstrated by the fact that when the State government was organized in 1846, Governor Henderson, who lived and practiced law with him in the same district, appointed him one of the district judges, assigning him to the old Fifth District, where he had won his fame as prosecutor.
As constituted under the Republic, the judicial department consisted of the Supreme Court, district courts, and inferior courts, such as county and justices' courts. There could not be less than three nor more than eight judicial districts, with a judge in each, and these sitting in banc. with the Chief Justice composed the Supreme Court. This arrangement, together with the law that required the district judges to alternate or exchange in holding their courts, gave to these tribunals a wide, varied, and controlling influence in the formation and development of our early jurisprudence, required a high order of ability in the judges themselves, and promoted a readiness and versatility of judicial talent and attainment, that made the bench of those days illustrious for its learning and character. Under the State government, inaugurated in 1846, the Supreme Court was created as a separate tribunal composed of three judges, appointed by the Governor and holding office for six years; and there were at first eight district courts, the presiding judges of which were also appointed by the Governor for six years. An amendment to the Constitution in 1850 made all judicial and most of the State officers elective. The first judges appointed for the several districts, in 1846, were James Love, William Jones, R. E. B. Baylor, M. P. Norton, O. M. Roberts, William B. Ochiltree, John B. Jones, and John T. Mills. All of these had been district judges under the Republic except Love and Roberts. Although they no longer constituted part of the Supreme Court, the habits and influence of the system formerly existing continued to lend great efficiency and skill to the administration of justice by these courts; and by reason of the large territory covered by each district, the variety and novelty of the questions constantly arising for settlement, and the self-reliance, original thought, and profound discretion demanded and inspired by the situation, the district bench was highly respected and was a powerful factor in laying the foundations of our judicial fabric.
The Supreme Court was then composed of that triumvirate of legal worthies—the dii majores of Texan jurisprudence—Hemphill, Wheeler, and Lipscomb; but it is not too much to say that their labors in moulding the marvelous composite of the Civil and the Common Law, with its new features of marital and homestead rights, and its incomparable system of pleading and practice without technical forms of action or distinctions between law and equity, were vastly aided and enlightened by the intelligence, zeal and industry of the early district judges. The decisions of the Supreme Court under the Republic had been few and desultory, their reported cases were imperfectly presented, precedents for the anomalous questions that arose were scarce and inadequate, and the work of both bench and bar was arduous and trying in the extreme.
Judge Roberts was located in the oldest and most populous section of the State, the bar of his district was the largest and admittedly the ablest in Texas, and the character of litigation tried before him was correspondingly complicated and difficult; so that his experience was laborious and varied, his capacity for administration and decision was taxed to the utmost, and his successful discharge of his duties was so well attested that it led to his promotion at the first opportunity that presented itself to the people and the profession.
Had he served out his full term as judge he would have occupied that position until 1852, but he resigned in 1851, after five years' service, and returned to the practice of the law, settling in Shelby county. Although then and always pre-eminently a lawyer and a judge, his practical bent of mind and his intense interest in the great questions of constitutional controversy in the domain of politics enlisted his active participation in public discussions and political movements.
Speedily after her annexation to the Union, Texas began to feel the compelling force of her new relations and the responsibilities they entailed. The Democratic party had brought her into the sisterhood of States, and to that historic organization she gave her earliest, as she has maintained her lasting allegiance. Annexation, in fact, precipitated the issues that afterwards rent the country in twain and convulsed it in civil strife. The “boundary dispute,” adjusted by the compromise measures of 1850, re-opened the vexed controversy of free and slave territory by practically abrogating the Missouri Compromise of 1820. It is strange what remote influences sway the destinies of nations, and how far it is to reach the genesis of revolution. When Napoleon sold Louisiana to the United States in 1803, his attention was called by his minister, the Count de Marbois, to the fact that its southern and western limits were not definitely described in the cession; to which the First Consul, with characteristic prevision, replied that “if an obscurity did not already exist, it would be good policy to put one in the treaty.” That obscurity remained to vex France, Spain and the United States through years of filibustering along the Sabine; it ran red with blood in the expeditions of Magee and Long; it was partially removed by the treaty of 1819 with Spain; it arose in another form in the Mexican War of 1846; its prolific progeny of contention roused the Union to fever heat in the campaign for Annexation and in the debates of Congress over the Compromise of 1850; its voice reverberated in the strife of 1861; and at last its expiring echoes were heard in the Greer County Case in 1896.
During the years from 1847 to 1857 Texas politics were rapidly developing along the lines of the pro-slavery, states-rights doctrines, and all the leading men of the State arrayed themselves upon the paramount issues that were beginning to alarm the South for her liberties and her life. Judge Roberts, true to his South Carolina parentage and his Alabama training, was a staunch and formidable advocate of the strict construction of the Federal Constitution, the reserved rights of the States, and the inviolable sanctity of their domestic institutions. In 1853 he was a candidate for the Democratic nomination for Congress in the Eastern district, his opponent being William C. Young, of Red River County. For two days of balloting he came within a few votes of two-thirds of the convention, when George W. Smith was nominated as a compromise candidate. In the exciting State campaign of 1855, when the “American” or “Know-nothing” party made its struggle for supremacy in Texas, in alliance with so-called “Union Democrats,” he took an active part in opposition to that movement, in company with such men as Pinckney Henderson, Frank Bowden, Malcolm D. Graham, Louis T. Wigfall, John H. Reagan, George W. Chilton, and M. D. Ector.
In the fall of 1856, Abner S. Lipscomb, associate justice of the Supreme Court, died, and an election to fill the vacancy thus created was held in the following February. The leading candidates were Peter W. Gray, Thomas J. Jennings, Benjamin C. Franklin, John Taylor and Oran M. Roberts. These gentlemen were not urged or nominated by any political organization, but were put forward by the bar and the people in the localities where they lived. It was a very close race between Judges Gray and Roberts, the latter being elected byonly one hundred votes over his leading opponent. Judge Roberts at once assumed his place on the Supreme bench, and there he first exhibited that marvelous capacity for analysis, discussion of facts, and the complete evisceration of a case—body, bones, and tissue—that have made his decisions such lasting monuments of judicial learning and practical utility.
On November 9, 1857, Judge John Hemphill, the Chief Justice of the court, was elected to the United States Senate, creating another vacancy. It was the universal desire that Judge Wheeler, who was already an associate justice since the organization of the court, should succeed to the chief-justiceship, but he was averse to being a candidate before a political convention, by which method it was now for the first time proposed to nominate the judges. The matter was at last adjusted by Judge Roberts introducing a resolution into the convention, which was unanimously adopted, declaring Judge Wheeler to be the choice of the bar and people for the first place on the bench, and Judge Constantine Buckley was nominated for associate justice. But James H. Bell ran against the nominee and was elected, thus composing the court of Wheeler, Roberts, and Bell.
It would be impossible here and now to discuss the great work done for Texas jurisprudence by Judge Roberts' service on the highest court of the State. In all he was a member of the court nearly fifteen years, being Chief Justice during seven years of that time. His marked traits as an appellate judge were his implacable hostility to judicial legislation—to judge-made law, his absolute impartiality, his practical knowledge of almost every subject of inquiry that came before him, his philosophic devotion to principles rather than precedents, his boldness in adhering to a right line of decisions or in departing from a wrong one, his tireless industry in the study of details, and finally, the simplicity, clearness, logical conclusiveness and the completeness of his treatment and disposition of a case. When you read one of his decisions you will have read all there is to know about the law and facts involved. He decided the case and all there was in it. There was no blind groping after authorities to support the conclusions arrived at, but the fundamental principle at issue was first sought after, apprehended, stated, applied, and then enforced with plain and practical directness. He went to the sources and springs of the law as they gush forth bold and pure from the fountains of English and American jurisprudence, instead of seeking their wasted stream in the little devious, dirty, and trickling rills of isolated and conflicting decisions by a multitude of courts and a minimum of judicial wisdom. When he had written an opinion in a case, there was no doubt or difficulty in understanding just what had been done or was required to be done in order to dispose of it. If the judgment of the lower court was affirmed, the whole law of the case was discussed, the essential rulings of the trial judge were examined and approved, or, if erroneous but not material, the errors were pointed out as a warning and instruction for the future. If the judgment was reversed and the cause remanded, every vital issue of the law involved was completely and clearly defined, the difficulties and errors of the whole record were examined and dissipated, and when the case came on for a second trial below there was no room for hesitation, controversy, or confusion as to what the Supreme Court had declared to be the law of the case, and the whole case.
It may be said that these qualities were characteristic of all the early judges of our highest court. For the first thirty-five or forty years of its history it was the crowning virtue of that tribunal that it decided causes, decided them on principle, decided them on lines of logical consistency, and decided them completely and finally.
It was the peculiar distinction of Judge Roberts not only to have excelled in this direction, but to have largely contributed while on the bench to the bringing about of these results. When he first came into the court, in 1857, there had never been an open dissent of opinion by any of the judges. No doubt they had often differed among themselves as to the correct decision of cases and the disposition of certain questions, but no one of the court had ever filed and published his dissent, supported by a discussion of the points at issue. It was, therefore, not a welcome announcement to his colleagues when Judge Roberts gave notice that he felt constrained to inaugurate the practice. It seems that he had previously disagreed with his brethren upon some decision already made, but forebore to publicly announce his opposing views, telling them, however, that in future he would reserve the right to deliver a dissenting opinion in all cases where he deemed the questions of sufficient importance to warrant his open protest against the action of the majority of the court. The occasion for this first arose in the case of Cain vs. the State, reported in Volume 20 of the Texas Reports, involving the question of the construction of statutes passed at the same session of the legislature. Judge Wheeler, speaking for himself and Chief Justice Hemphill, decided according to the old English rule by which all acts of Parliament, being part of the same roll, should be construed together as one act and of the date of the first day of the session. Judge Roberts opposed this view, as not in consonance with the methods of American legislation, and not consistent with the later rules of construction even in England. His dissenting opinion is unquestionably the law as it is now recognized by the great weight of authority. There is one singular feature about this case, which may have been noticed by those who have read it. The opinion delivered by the majority of the court appears to be a direct reply to the argument of the dissenting opinion of Judge Roberts, which is accounted for by the fact that Roberts wrote and filed his dissent before the main opinion was composed by Judge Wheeler, who had it before him when he prepared his opinion. This I learned from Governor Roberts himself.
Another influential and salutary innovation introduced by him into the methods of the Supreme Court, was that of requiring all written opinions to be submitted to the full bench before being handed down as the decision of the court. This rule he inaugurated when he became the Chief Justice in 1864, although he had contended for it when he was associate justice. It will be remembered that one of the strongest criticisms Thomas Jefferson leveled at the Supreme Court of the United States was that, in his day, the opinions of that tribunal were the individual utterances of the several judges and not the concurrent conclusions of the whole court, arrived at after full discussion and ratification by all the justices. There are often many things in a judicial opinion that are not necessary to be decided or conceded in order to support the judgment announced. As is frequently remarked, “the decision is all right but the reasoning is all wrong.” These dicta from the bench simply confuse the course of judicial conduct, mislead the bar, and often become absolutely harmful in the administration of the law. Hence, the necessity for a thorough discussion and complete acquiescence by the whole court, not only on the decision arrived at, but on the several stages and steps of argument by which it is reached, before it is proclaimed to the world as the authoritative judgment of the bench. In establishing these two rules in the deliberations of the Supreme Court of Texas—the right and duty of dissent in proper cases, and the approval by the whole court of all opinions handed down—Judge Roberts contributed vastly to the authority, strength, and harmonious efficiency of that body.
It is useless here to attempt to recite the valuable expositions of the law which are contained in his many opinions from the highest tribunal of the State. His first reported decision is in the case of Hart vs. Weatherford, 19 Texas Reports, 57, and the last was in the case of Overton vs. Terry, 49 Texas Reports, 773, the latter being a dissenting opinion in regard to practice on writ of error in the Supreme Court. The first of these cases was decided in 1857, and the last in 1878. Between these two dates lies a vast and vital period of judicial development and legal learning, to the annals of which his deep thought and indefatigable industry contributed nobly and permanently. We may simply notice as milestones on the way of his labor and zeal, the exposition of the “rule in Shelley's case” 2—that pons asinorum of technical lawyers—which has been accepted and followed by very many able courts; his masterly analysis of the law of legal malice, and the distinction between the degrees of murder, 3 which has become a world-wide authority; his explanation of the scope and meaning of the law of eminent domain; 4 his splendid discussion of the functions and application of mandamus in the control of a State officer; 5 his last great opinion in the case of Guilford vs. Love, 6 covering the whole realm of probate law, and the process of administration under a will in Texas; and last, but not least, his system of rules for practice and pleading in the courts of Texas, which has remained the code of Texas practice in the trial of causes in this State, and is approved by the experience of both bench and bar.
After his elevation to the Supreme bench, events rapidly culminated in conditions that for the time suspended the calm and cloistered deliberations of the court and the consultation room. The new court, with Wheeler at its head, and Roberts and Bell as his associates, was hardly seated before the sounds of approaching tumult and disunion shook alike bench, bar, and populace. The campaign of 1857, between Houston and Runnels, for Governor, had been one of unprecedented vigor and acrimony, resulting in the defeat of General Houston by a large majority. Meanwhile, the continued aggressions of the abolition faction in the North, the open defiance of the Statutes of the United States, in the violation of the fugitive slave law, the violent denunciation of the Supreme Court for its decision in the Dred Scott case, the increasing bitterness and boldness of unconstitutional methods in Congress, and throughout the whole northern section of the Union, with corresponding alarm, agitation and counter-aggressiveness in the South, brought matters to the last limit of peaceful discussion, and prepared the country for warlike measures. The fatal mistake of the Democratic leaders in Texas, aided by his own magnificent and masterful personality, enabled General Houston, in the campaign of 1859, to reverse the popular verdict of two years before, and he was elected governor, as the representative of the Union Democrats and the quasi-Republican element in this State. He was a Texan and loved Texas with a consuming devotion; but he had been a lover of the Union first; he had learned his lesson of fidelity from Andrew Jackson, with whom loyalty to the Union approached fanaticism; he had labored long and ably to place the Lone Star on the field of the flag of his youth, and he longed with heroic hope to behold it still blazing there as his old age tottered to the grave. Therefore, he set his face like flint against Secession and all its belongings. But there were other men, equally as patriotic and loyal to the Union, as the fathers framed it, who saw the inevitable, and prepared to meet it firmly and bravely, and back of all were the people—Southern to the core, and ready to do battle for the institutions of their domestic fabric and for the constitutional autonomy of their State.
In this period of approaching revolution, Austin was the seat of the greatest activity, and, strange to say, the sedate and conservative circle of the Supreme Court was the storm center. Chief Justice Wheeler was singularly sensitive to any suggestion of judicial impropriety, and was violently opposed to political utterances by any member of the court. But those were times when men forgot, or relegated to disuse, the ordinary restraints of custom. The disruption of the Democratic party at Baltimore and Charleston, and the election of Abraham Lincoln on a platform avowedly hostile to the South, had demonstrated the nearness of actual disunion. At a great Union meeting in Austin, in November, 1860, calls were made upon the judges of the Supreme Court for an expression of opinion on the pending crisis, and Judge Bell announced that he would speak in Representative Hall one week from that date. He was known to be an ardent Union man, an accomplished orator, and a profound lawyer. Judge Roberts at once proclaimed that he would reply at the same time and place. The speaking took place, and it was typical of the earnestness and vigor of men's convictions at that stirring period. A few extracts from Judge Roberts' address may serve to show the directness and fervor of his method of dealing with the subject. He said, in conclusion: “What shall Texas do? As one of her citizens, I am for State action—action by the constituted authorities of the State—action singly and conjointly with other Southern States, until we are made secure in our rights, liberties, and honors. Our allegiance is due to both the State and Federal governments, because the sovereign power of Texas, at the time of our annexation to the general government, so ordained it. And until the same sovereign power shall be brought into action, and declares a different will, it is our duty, as citizens, to make ourselves subservient to the one as well as the other. * * * In all these stages of State action, too great solicitude can not be felt by all parties, to preserve the social order; so that, if the Federal government should fail to recognize the right of the State to exercise its reserved power of changing its form of government, and should endeavor to subjugate it, the energies of the people may be united to repel invasion. Which one of these remedies may be adopted is for the people to say, when they shall have found the means of expressing their will. It is my purpose now to show that the present attitude of public affairs justifies them in adopting either of the remedies that they may think necessary for their safety. I have no fear that inconsiderate rashness will control them. They have pondered upon the issues of this crisis long and well. They have made up their minds. There is no agrarian spirit abroad in this country. There is no war of classes. There is no conflict between labor and capital. Our people are not seeking or asking to extort favors from the government to themselves, or to deprive others of any right. They have no desire for a social rupture at home. Their excitement arises from an entirely opposite cause—a high resolve now to throw themselves in the breach; not to destroy, but to protect rights; not to destroy property, but to protect property; not to destroy life, but to make life worth having; not to produce discord, but to end it. This excitement is not a shallow, noisy ripple, but a deep, irresistible current, springing from the firmest convictions of the mind.”
That debate was the turning point in public action in Texas. It was exhaustive, eloquent, patriotic, and, by reason of the character and station of the debaters, it was decisive. The Secession advocates determined to act promptly and vigorously, and Judge Roberts assumed and held the leading part in all that followed. He drew up the call for a convention of the people, assisted in conducting the campaign for that purpose, was chosen president of the convention, and in the delicate and difficult tactics required to out-general Governor Houston, his shrewdness, firmness, and political sagacity were eminently exhibited. It is a fact not generally known, that he might have been one of the delegates to the Provisional Government of the Confederate States, at Montgomery, Ala., and no doubt a member or senator in the permanent government; but he declined, saying that it would require no small effort to counteract Governor Houston's powerful opposition at home, and that he preferred that task, How he managed the maneuver and achieved his purpose, is one of the most curious and thrilling episodes in the political history of the State.
An incident in connection with the Convention of 1861 illustrates his democratic spirit and his high sense of liberality and justice. In the Constitution of the Republic of Texas, copied into that of the State of 1845, it was provided that “no minister of the gospel or priest of any denomination whatever” should be eligible to the office of chief executive of the government or to membership in the legislative body. When the Convention of 1861 came to revise the State Constitution for the purpose of entering the Confederate States, Judge Roberts, the President of the body, suggested that the discrimination against preachers be stricken out, which was done.
When war was finally inaugurated and had proceeded to a stage demanding the utmost resources of the South, Judge Roberts, in 1862, resigned his seat on the bench, raised a regiment himself (the Eleventh Texas Infantry), and led it to the battlefields of the Confederacy. It is gratifying to know that the last regular work he ever did was to write a history of the operations and services of the Texas troops in the armies of the Civil War, which is now in press, as part of a series of such histories covering the whole field of Southern military service during that period.
In 1864, while still in the army, he was elected Chief Justice of the Supreme Court, and the war being manifestly near its close, he came home and assumed once more the judicial station. This interval of warlike experience is made the occasion for a sarcastic reference by George W. Paschal, Reporter of the Supreme Court, and a violent Union partisan, in the preface to Volume 28 of the Texas Reports, where it is said: “The Chief Justice and one of the judges upon the bench, whose constitutional views had hitherto been reliable, entered heartily into the secession movement. The position of one of them (Oran M. Roberts) and the political tendency of his mind made him a zealous leader. Indeed, he became the president of the secession convention, and the chairman of the committee of public safety. In this he but followed his early training and the school to which he had attached himself. Perhaps it was due to his acts (for inconsistency has no boundaries) to meet the full consequences of his political leadership. At any rate, he doffed the judicial robes and girded on a broad-sword. He went forth to the battlefield. Whether or not he won military laurels equal to his judicial record, it is needless to say. Suffice it, that he returned to the Chief Justiceship of the court in 1864.” The same spirit of petty spite and rancor led the same reporter to omit to publish a number of very important decisions rendered by the court during the period of the war.
It may be remarked in this connection that at the time Secession was agitated and accomplished very many of the ablest public men in Texas were staunch Union men, especially among the early leaders and in the Southern section of the State. These men naturally antagonized Judge Roberts in his active and prominent part in the Secession movement; and it is a fact that whatever disparagement or want of appreciation his great abilities and public service have at any time or in any degree sustained—and it has not been appreciable—has emanated from that class of traditional critics and jaundiced opponents.
When the State government was organized under the methods of presidential reconstruction, in 1866, he was elected United States Senator, defeating B. H. Epperson, and his colleague was the venerable David G. Burnet, ex-president of the provisional government of the Republic in 1836, who defeated John Hancock. The senators and representatives from Texas went to Washington and remained there several months, seeking admission to their seats in Congress, but in vain. Texas was the last of the Southern States to be reconstructed according to President Johnson's plans, and by the time she sought recognition at Washington the radical Republicans, led by Wade, Sumner, Stevens, Grow, and Colfax, were determined to inaugurate a system of military reconstruction under Congressional control. While the Texas delegation were waiting to be accepted, Senator Roberts drew up an “Address to the People of the United States,” which was signed by the delegation and published in the National Intelligencer, attracting wide and favorable attention at Washington and throughout the country. It was the only paper of the kind promulgated by any Southern State, and as an impartial statment of facts, with a profound exposition of the constitutional rights and attitude of the lately seceded States, it produced a marked impression in official circles.
When the State government was overthrown by military order, in 1867, our people submitted to the horrors of congressional reconstruction for the Biblical period of probation, and ex-Judge, ex-Senator Roberts retired to private life. He at once began the practice of law, which was of course precarious under existing conditions, and conducted a small law school at Gilmer. This quiet and uneventful period of his life was in many ways the most pleasant, as it was certainly a very useful part of his career. He taught the principles of the science he loved and thoroughly understood to a select class of earnest, ambitious youths, whose subsequent success they always justly ascribed to his tutorship and influence. Some of them have risen to great distinction in law and politics. One was a Supreme Judge, one was attorney general, another became United States Senator, and they have all been men of worth, weight, and usefulness in life.
After seven years of sacrificial suffering at the hands of “carpetbag” and “scalawag” rule, Texas finally secured a restoration of her constitutional sovereignty as a State in the Union, in 1874, and her leading sons resumed their headship of affairs. Under the Constitution of 1869, the judges of the Supreme Court were five in number and appointed by the Governor to hold for nine years. But in order to get rid of the famous (or infamous) “semicolon court” appointed by Governor Davis in 1870, a constitutional amendment was adopted at the State election of 1873, by which a new court was required to be appointed, still composed of five judges and holding for nine years. Governor Coke, on taking his seat in 1874, appointed O. M. Roberts Chief Justice, and Judges Moore, Reeves, Devine, and Ballinger associate justices. Judge Ballinger resigned in a few days and Judge Devine a year later, Peter W. Gray and John Ireland being appointed to succeed them. Under the Constitution of 1876, the court was again made elective, the judges reduced to three, and the term of office to six years. Under this Roberts was elected Chief Justice, and Moore and Gould associates. Judge Roberts remained Chief Justice until the memorable State Democratic Convention of 1878, when Throckmorton, Hubbard, and Lang “locked” the convention for a week, rendering a compromise imperative. A “commission” or conference committee of thirty-two members was selected to choose a candidate for Governor, and they named O. M. Roberts, then absent at his home in Tyler. He accepted and was elected at the ensuing election, and was re-elected in 1880.
In entering upon his service as the highest executive officer of the State, his equipment was not exactly such as ordinarily insures success and satisfaction. Lawyers and judges are not usually efficient business men in any line. Still less are they generally careful financiers or practical administrators of affairs. But in these respects Governor Roberts proved himself an exceptional success. He was from the start a shrewd political economist, a sagacious statesman in the department of governmental finances, and a broad, liberal manager of every interest of public concern committed to his care and encouragement. He was found of calling attention to the fact that the secret of satisfactory executive service in the management of a government consists in the correct solution of the financial problem. He often emphasized the point that the Premier of England is usually the first lord of the treasury, and that in the United States the secretary of the treasury has come to be the most important officer in the Cabinet. On these lines he shaped his policy and practice, announced the motto, “Pay as you go,” and through good and evil report adhered to his plans of rigid economy, provident taxation, liberal but exact appropriations to public purposes, and the utilization of every source of legitimate revenue and every inducement towards building up the State's population, intelligence and wealth. He was fortunate, in that his two administrations fell on peaceful and prosperous times. The details of the multifarious interests that were fostered by his management would stretch beyond the limits of an address like this. The chief results of his labors as Governor were the contract for building the new granite capitol, by which the State disposed of unmarketable lands in exchange for a superb public edifice valued at a million and half dollars; the complete reorganization of the whole educational system, including the inauguration of the State University, the foundation of an efficient system of normal colleges; and the thorough reformation of our free public schools; the radical improvement of our prison establishments, with the erection of an additional penitentiary; the building of another insane asylum, and the extension of all the institutions of public charity; a land policy by which, for the first time, the unsalable school lands of the West were put on the market and actual settlement by private ownership was promoted; and a general financial policy under which, at the end of his second term, the public debt had been reduced $1,400,000, taxes lowered from fifty to thirty cents on the one hundred dollars, taxable values raised from $280,000,000 to $410,000,000, the permanent school fund increased from $1,629,000 to $5,361,000, and there was a cash balance in the treasury, to the account of general revenue, of over two million dollars.
These figures and facts speak for themselves. Although Governor Roberts was an old-fashioned Democrat, with many strong and pragmatical notions upon social and political questions, it was a distinguishing trait of his public views and conduct that he accepted existing conditions and accommodated his official acts to the progressive spirit of the age and country in which he lived. He was not an ideologist nor a doctrinaire. Neither did he belong to the age of ox-carts, or alarm himself with needless fears that “foreigners would some day elbow our children into the sea.” He was a plain, practical, provident, business-like governor, whose judicial learning strengthened and adorned his political sagacity.
On his retirement from the executive chair in 1883, he was shortly elected Professor of Law in the State University, which position he held until 1892. It is needless to speak of his labors in these halls. They are reflected in the proficient training, and attested by the enduring gratitude of hundreds of aspiring young men all over Texas, who will continue to revere him as “philosopher, friend, and guide.”
He resigned his professorship to retire to a quiet repose and a scholarly review of his long and active life, residing first at Marble Falls, and later at Austin. His last years were as honorably and beneficially bestowed as any of those that went before. He did what so few of our great men have the thoughtful patriotism and the conscientious industry to perform—he collected the memorials of his fifty years of public service, revised the recollections of the many and momentous scenes in which he had mingled, verified the facts of the annals of his past career, and wrote for posterity, “The Legislative, Political, and Judicial History of Texas, from 1845 to 1895”—a work that is a monument of patience, patriotism, historical accuracy, and exhaustive presentation of the whole story of Texan Statehood for the first half century of its development. It forms the first part of Volume 2 of “The Comprehensive History of Texas,” recently published, and when its merits are generally known, it will be regarded as indispensable to the completeness of every educated Texan's library. His latest work, as I have said, was his history of the Texas troops in the Civil War, not yet published.
One singular and striking feature of Governor Roberts' mental composition, was his fondness for scientific and philosophical studies. In the intervals of his busy professional and official life, he wrote a great many interesting and valuable articles upon such subjects. He was a remarkably observant man, noting with reflective intelligence the minutest details of the social and physical world around him, and drawing therefrom many curious and instructive ideas and theories.
Contemplating his whole life and services, I do not hesitate to declare that in all the departments of public, professional, and private labor, he was the most versatile and the most useful man Texas has produced in the fifty years of her existence as an American State. Others were pre-eminent in this or that direction; he was great and useful in all. As lawyer, jurist, statesman, soldier, teacher, and historian, the “Old Alcalde” has no rival in the annals of Texan worthies.
It has been said that “genius can mould no marble so speaking as the spot where a brave man stood or the scene where he labored.” We stand to-day on the spot where he was wont to take his place among those who lived and labored for this great commonwealth and its permanent happiness. All around us are the scenes in which he wrought out the manifold purposes of a life devoted to the lofty ideals of jurisprudence, statecraft, and education. On yonder hill, the splendid fabric and colossal beauty of a capitol, reared by his provident and practical care, enshrines the memories of his patriotism and typifies the enduring usefulness of his career. In these walls we may hear even yet the echoes of his footsteps and recall the sound of his voice, raised so often in behalf of youth and its noblest aspirations. These physical and tangible monuments, and memorials of his great mind and heart, bring welcome messages of his well-spent days; but the abiding tribute to his fame and influence is written in the table of laws he illumined by his learning, in the institutions of social life perfected by his patient skill, in the grateful remembrance of the people he served so faithfully and loved so well, and in the splendid prowess of the State whose grandeur was the dream of his youth, the purpose of his manhood, and the pride of his old age.
On the shore of Galveston Bay, near the mouth of the Trinity River, and about half a mile south of the town of Anahuac, are to be seen the ruins of an old Mexican fort, erected in 1832. Its walls have long since been levelled to the ground, many of the bricks used in their construction have been utilized in various ways, but the outlines of its foundation may still be traced, and with the aid of the recollection of descendants of early settlers, whose childhood was passed near it, its site may be accurately located. Its history is that of the rebellion of Texan colonists against Mexican oppression, of their punishment by imprisonment within its walls, which were put up by the forced labor of colonial mechanics. The half-buried bricks of this ruin, which, according to primitive custom, were moulded by hand, are endued with a new interest, when we know Texan prisoners were made to contribute their labor by tramping the clay, as well as moulding the bricks for the walls of the fort.
In 1832, when the troubles between the citizens and Col. Juan David Bradburn first began, the latter was poorly equipped to take care of political prisoners, so Patrick C. Jack and Wm. B. Travis, the first who were arrested for expressing themselves too freely in regard to his arbitrary conduct, were imprisoned in a house contiguous to his own quarters.
Dr. N. D. Labadie, who had been living at Anahuac since March 2nd, 1831, relates the following particulars in regard to the building of the brick fort. He says, that the wants of Jack and Travis while in prison were attended by one of the slaves of James Morgan; that in a bundle of clothing, prepared by the prisoners for the laundress, a letter marked O. P. Q., requesting that “a horse should be in readiness at a certain hour on Thursday night,” was found by the Mexican officer of the day. “The finding of this letter,” says Dr. Labadie, “caused Bradburn much uneasiness, and, combined with other events, determined him to secure his prisoners more effectually. As he was laying the foundation of a fort near Anahuac, a large brick kiln had just been emptied, and all the masons and carpenters were forced to go down and put it up for a prison. In the course of a week the work was completed, and two large cannons placed on a platform near by. The two prisoners were now to be conducted to the new prison. The whole garrison was put under arms. The cavalry made a display at the head of a column. The letter to O. P. Q. had caused a double line of sentry to be placed inside with the prisoners, who were thus doubly guarded in order to be kept safe till the whole force of the garrison was ordered out to conduct the prisoners to the new place of confinement.” In another part of the same narrative it is recorded that, some ten or fifteen men who were taken prisoners by the Mexicans in one of the skirmishes between the latter and the citizens, during those troubles, were put to hard labor, tramping clay and moulding it into bricks. Thus, not only was the old fort built by the compulsory labor of colonial carpenters and masons, but its very bricks were made and moulded by the feet and hands of prisoners taken while fighting in defense of their liberties.
But this state of things could not continue long, and the determined action of the citizen soldiery at that time, no doubt, had a powerful influence in shaping the conciliatory policy which prevailed during the ensuing year. In the fall of 1832 Colonel Souverain, who had succeeded Bradburn in command of the garrison, chartered two schooners from Wm. and David Harris and with the garrison sailed for Tampico. However, the evacuation of the fort was temporary, for, on May 30th, Stephen F. Austin wrote from Matamoras, that, “Mr. George Fisher will leave here shortly to enter upon the duties of Collector of Galveston, with only a sufficient number of troops for necessary guards.” * * * *
Anahuac was known as the Port of Galveston, and here the revenue officer had his official station, but history is silent with regard to the official acts of George Fisher, and it was not until June, 1835, that little Anahuac again became the scene of resistance to oppression; this time, Wm. B. Travis and Patrick Jack, the former prisoners, performed the part of “rescuers of the imprisoned.” The story is best told by letters of actors which explain and correct certain erroneous statements in historical records.
The following is a copy of a letter from D. W. C. Harris, of Harrisburg, Texas, to relatives and friends in Waterloo, New York:
Harrisburg, Texas, August 17, 1835.
Dear Friends—On the 10th of June I went to Anahuac (about fifty miles from Harrisburg) to purchase some goods of a Mr. Briscoe; after purchasing my goods, I was informed that I could not remove them from town, until I got a gefe from the custom house; this I was determined not to do, if I could avoid it. The evening previous to my intended departure there were several guards placed around Mr. Briscoe's store, to see that nothing was removed. About eight o'clock a young man came to the store and asked Briscoe for a box to put ballast in; this Mr. Briscoe gave him, and he placed it on a wheelbarrow filled with brick and started for the beach; after he left the store I observed to Mr. Briscoe that we could now ascertain whether my goods would be stopped or not. Shortly after, we heard the young man calling for Mr. Smith, the interpreter. Mr. Briscoe and I then walked up to the young man, and found that he had been stopped by the guard. Mr. Smith soon came up and informed the guard of the contents of the box; this appeared to satisfy him, and the box was taken to the beach, Mr. Briscoe and I going with the young man. After the box was put in the boat and we were about returning, ten or twelve Mexican soldiers came on us and ordered us to stand. Mr. Briscoe and I were taken prisoners. As we were ascending the bank a young man named Wm. Smith came down the hill, and when within ten feet of us was shot down, the ball passing through the right breast; (he is recovering.) Mr. Briscoe and I were then put in the calaboose, where I remained until next day at 11 o'clock, when I was liberated, Briscoe still being detained. I immediately came to Harrisburg and made statements of the facts, which were sent to San Felipe, and on the 24th of June an order came from San Felipe for the Mexicans to be disarmed, which was done on the 27th. * * *
Clinton.
Further particulars with regard to the order, which came from San Felipe, “for the Mexicans at Anahuac to be disarmed,” so briefly alluded to by De Witt Clinton Harris, are as follows: A company of about twenty men met at Harrisburg, elected Wm. B. Travis captain, mounted a six-pound cannon on truck wheels used for hauling logs to the saw mill, put it on board the sloop “Ohio,” and proceeded to Anahuac, where they landed and captured the garrison of forty Mexicans, under command of Capt. Tenorio. The following is a list of a few of the men who went on this unique naval expedition: P. C. Jack, D. and S. Harris, Jno. Iiams, Jno. Brock, Capt. Hunnings, E. Ray, J. Wilcox, Jr., and H. Callahan. A. B. Dodson, whose bride, a few months afterward, made the first Lone Star flag of Texas, and presented it to a company of which he was first lieutenant, went as far as Vince's, a few miles below Harrisburg, where he was detained on important business.
Important facts relating to the same affair are contained in the following letter from Travis to Henry Smith, who soon afterwards became Provisional Governor of Texas:
San Felipe, July 6, 1835.
My Dear Sir—I hasten to write you a line by Mr. W. M. Smith, who is on hand to start for Columbia.
I have only time to say that I returned last evening from a successful expedition to Anahuac. On the 21st ultimo resolutions were adopted here recommending that, in connection with the general defence of the country against military sway, the troops of Anahuac should be disarmed and ordered to leave Texas. In addition to that, I had been invited to go to Anahuac for the above purpose by several of my friends, who are the principal citizens of that place, and who were suffering under the despotic rule of the military.
Under these circumstances, I set out for Galveston Bay, raised a volunteer company of twenty men on Buffalo Bayou and San Jacinto, and being elected captain of the company, I proceeded to Anahuac in the sloop “Ohio,” with a six-pounder mounted on board. We landed on the 29th, took possession of the place, and commenced active offensive operations. On the morning of the 30th the troops, about forty in number, capitulated, delivered us sixty-four stands of arms (muskets and bayonets), and agreed to leave Texas immediately under parole, never to serve against the people of Texas. I sent them bag and baggage on board the sloop, and they are now on the march without arms to La Bahia.
This act has been done with the most patriotic motives, and I hope you and my fellow citizens generally will approve it or excuse it. * * *
As ever, your friend, Travis.
This decisive action in disarming Mexican soldiers made plain the determination of Texans to no longer submit quietly to tyranny, and the part borne by Travis in the affair presaged the unrivalled heroism of his character. He was a warm friend of Andrew Briscoe, and when informed that “his friends were suffering under the despotic rule of the military,” friendship united with patriotism in emphasizing the ardor of his feelings. Nevertheless, public sentiment was by no means unanimous in approving the act, and Travis was sharply attacked by what was known at the time as the Peace Party or Submission Men. In a letter dated August 5, 1835, he alludes to a document or card published through the solicitations of friends, which probably entered into an explanation of his course, and which he seems to have regretted. In the same letter he says: “I know that I acted by the consent and approbation of the political authorities, I know that the people here all favored the measure, and I went into it believing it to be right and that it would meet the approbation of all; and, as you say, time can only determine whether it was a good or bad measure. * * * Conscious that I have not intentionally erred, I bid defiance to any who may be disposed to persecute me, and feel assured that I have numerous friends to sustain me in it.” * * *
The following letter from Wm. B. Travis to Andrew Briscoe, for whose release he had suffered much blame at the hands of the Peace Party, shows the confidential relations existing between them. His allusion to Mr. Briscoe's publication, which was probably one of those circulars printed with the pen and posted up in public places for the purpose of arousing the people, shows that they were one in patriotic sentiment, and that neither faltered in the performance of duty. The letter also shows the happy change in public sentiment which had been wrought in the space of a few weeks, as well as the excited condition of the country.
San Felipe, August 31, 1835.
My Dear Sir—I have not written to you before, because I was ashamed to tell what was going on. It is different now. Although the Mexican or Tory party made a tremendous effort to put us down, principle has triumphed over prejudice, passion, cowardice, and knavery. All their measures have recoiled upon them, and they are routed horse and foot. The extent of their glory was to denounce us to the military at San Antonio and Matamoras, and demand our arrest. An order was accordingly issued to Ugartachea, and repeated by Cos, to arrest seven of us and send us to Bexar to be tried by martial law. This was too much for the people to bear. When they were called on by an usurping political chief to carry these orders into execution, the sacrifice was too great. Their wrath was turned against the Tories and Spanish-Americans, who now dare not hold up their heads. The people call now loudly for a convention, in which their voice shall be heard. They have become almost completely united. And now let Tories, submission men, and Spanish invaders look out.
There is to be a great meeting here on the 12th of September, on the subject of a convention. The Tories are dying a violent death, and their last expiring struggle will be made on that day. Therefore I invite you to attend, and hope you will do so. We wish to beat them in their stronghold, and I have no doubt we shall do so. But I wish to see them overwhelmed. I have seen your publication. It does you credit. You have shown yourself the real white man and uncompromising patriot. Stick to the text and Texas is saved.
I have this moment finished conversing with a Mexican just from San Antonio. He says marching orders have been given to the troops. They are to be here by the 12th or 15th of September to garrison this town, Temoxtitlan, and Nacogdoches with 200 men each; and it is concerted that 200 men shall arrive by water at Anahuac at about the same time to garrison that place. They have sworn vengeance against all engaged in the late expedition, and in that of 1832 at Anahuac and Velasco. They calculate to take up these men, with the aid of the other Americans, by which time they will gradually bring in troops enough to overrun the people and keep them in vile submission. They can not do it. We will not submit to be garrisoned here. I hope you will not there. We shall give them hell if they come here. Keep a bright look out to sea. Allow no pilots in the bay to assist them, and they can not land before you have time to prepare for them. Secure all the powder and lead. Remember that war is not to be waged without means. Let us be men and Texas will triumph. I know you can be relied on; therefore I exhort you to be active in preparing the minds of men for the scenes that are to be enacted.
News from Orleans that we will be liberally aided with men, money, and arms has arrived. Already we have five pieces of cannon, 100 keys of powder, and lead and shot to correspond, landed in Matagorda, and sent from Orleans.
Come over if you can on the 12th. My respects to Wilcox and others. Please write soon.
Your friend, W. B. Travis.
In spite of the proclamations of Capt. Thomas M. Thompson, who, from the Mexican war schooner “Correo,” assumed a petty jurisdiction over Galveston Bay and the citizens of Anahuac, forbidding the organization of militia, and insolently threatening to hang Travis at his yard arm in half an hour after he should be captured, Mexican rule at Anahuac could never be reinstated; the little sloop “Ohio” and its heroic crew had done their work effectually; the fort was never again to know the tread of a Mexican garrison, nor its prison doors to close upon another political prisoner.
Guided by the old letters to which attention has been invited, I have been able to obtain authentic data in regard to this old Texas landmark.
The Wilcox mentioned in the letter of Travis to Andrew Briscoe was Capt. Chas. Wilcox, who settled at Anahuac in 1831, was present when the corner stone of the fort was laid, and lived there continuously up to the time of his death. From one of his sons, Geo. E. Wilcox, resident at Temple, the following description of the old fort was obtained:
“My earliest recollection of the Mexican fort at Anahuac is after the walls had been torn down to a level with the top of the hill or bank of the bay shore on which it was built.
“The fort was about 30x40 feet in the clear, built with the western side fronting and immediately on the bank. The bank had been excavated for a distance of ten feet, with the side next to the bay entirely open. This opening was closed up with heavy walls of brick, and lighter brick walls were built around the other three sides, and from the rear or eastern side of the fort there were two passage ways underground, leading back to a large magazine some forty yards back on the hill, under the surface, which passage could be used as an exit from the fort.
“On the exposed part of the fort there was a brick wall about four feet thick. In the corner stone, among other things, there is a Mexican dollar. My father saw the corner stone laid. * * * There were only two cannon in the fort; they were about six-pound iron guns. One of them can be seen at Anahuac today.”
Unfortunately, the rumor that money was buried in or near the fort has caused the ground to be dug up by treasure hunters, and in this way its otherwise clear outlines have been defaced.
A Confederate fort, called Fort Chambers, was built during the Civil War about half way between the Mexican fort and Anahuac, opposite Brown's Flats. Two cannon are said to have been mounted there, but they were afterwards conveyed to Galveston and placed at the corners in front of Artillery Hall.
There is no doubt about the cannon now in the possession of W. D. Wilcox at Anahuac having been left there by the Mexicans.
References:
“Narrative of the Anahuac or Opening Campaign of the Texas Revolution,” by N. D. Labadie, Texas Almanac, 1859.
“Life of Henry Smith,” by John Henry Brown.
Letters of D. W. C. Harris, Wm. B. Travis, A. B. Dodson, and Geo. E. Wilcox.
[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.
General Hamilton Prioleau Bee was born in Charleston, S. C., July 22, 1822, and died in San Antonio, Texas, on October 3, 1897, aged 75 years. His grandfather was Judge Thomas Bee, who held a commission from President Washington, as Judge of the United States Circuit Court for South Carolina, and his father, Col. Barnard E. Bee, occupied quite a conspicuous place in the history of the Texas Republic, having been Secretary of War under President Sam Houston, and Secretary of State under President M. B. Lamar, and also Minister to the United States and to the Republic of Mexico, though Santa Anna declined to receive him, treating the young Republic as a rebellious province, notwithstanding the Mexican disaster at San Jacinto.
After Santa Anna's surrender to General Houston, he was sent to Washington, in order that he might, in the presence of President Jackson, renew the promises he had made, in order to secure his liberty, and Colonels Hockley, Bee, and Potter were selected to accompany him. It became necessary for him to have a large sum of money, about three thousand dollars, and Colonel Bee advanced it, receiving in return a draft on Santa Anna's bank, in the City of Mexico, for the amount. Upon presentation, the payment of the draft was refused by Santa Anna, on the ground that at the time of its execution, he was a prisoner of war, and, therefore, under duress. Colonel Bee died in 1854.
General Bee's brother, General Barnard E. Bee, was a graduate of the West Point academy, and was killed at the battle of Manassas, being the first general officer killed in the Civil War. He was a splendid soldier, and he it was that christened Gen. T. J. Jackson as “Stonewall,” while rallying his troops, saying to them: “See, there is Jackson, standing like a stone wall. Let us determine to die here, and we shall conquer.”
He was soon after mortally wounded, while holding in his hand the beautiful sword presented to him by the State of South Carolina for his distinguished services in the Mexican war.
Hamilton P. Bee, at the early age of fifteen years, brought his mother out to the then young Republic of Texas, the trip being made by sea, on the steamship Columbia. They landed at Galveston, Texas, then lately desolated by a fearful storm, in November, 1837. His father was then in Houston filling the office of Secretary of War, and the subject of this sketch thus linked his life with that of the young Republic. Dutifully and faithfully he followed during life its standards through all the mutations of fortune, always true to the cause of Texas. He first held the position of clerk in the Comptroller's office, the Comptroller being the writer of this article.
It is a marked incident, as showing the stupendous progress of the State, that at that time there was only one clerk in the Comptroller's office, and now the working force is counted by scores.
The friendship thus begun between the Comptroller and his clerk continued unbroken throughout.
General Bee lived in Houston until his father retired from President Houston's cabinet, when the family moved to Velasco. Here they resided until the election of Lamar, when they returned to the capital, Colonel Bee assuming the position of Secretary of State.
When the capital was removed to Austin, General Bee took up his residence in that village, and engaged in the study of law under Judge Webb, a distinguished lawyer of the early days. The Comanche war soon breaking out, he joined the army, which engaged in several conflicts with the Indians, including the battle of Plum Creek, in which the Texans commanded by Gen. Ed Burleson and Col. Jno. H. Moore were completely successful, routing the Indians and recovering a large part of their stolen plunder. Later on, in 1840, General Bee acted as Secretary of the Commission that ran the boundary line between the Republic of Texas and the United States, the Texas Commissioner being Gen. Memucan Hunt. The engineer in charge was Major Graham, of the United States Corps of Engineers. He was the father of Gen. W. M. Graham, who at present is in command of the Department of the Gulf, and Lieuts. Jos. E. Johnston and Geo. C. Meade were the assistant engineers. These officers afterwards occupied prominent places in the late “War between the States.” The expedition started from the mouth of the Sabine and followed the line of the Sabine River to its source, thence to Red River. Its work was of a very satisfactory nature.
When the Vasquez raid on San Antonio occurred in 1842, he volunteered and joined a company that set out to assist in expelling the invaders. By the time San Antonio was reached the trouble was over, and the command, after a short stay in the vicinity, returned home. Meanwhile President Houston conceived the plan of arranging a meeting at Bird's Fort—the present site of Fort Worth—of all the tribes of Texas with the Commissioners from Texas, for the purpose of making a treaty of peace. General Bee accompanied the Commission, headed by Col. Jos. C. Eldridge, as secretary. There was only one other member of the Commission, Thos. Torrey, a member of the Torrey family, so well known in Southwest Texas, and they were accompanied by three Delaware Indians as guides and interpreters. This expedition started out in 1843 from Washington on the Brazos, at that time the seat of government, and was absent for over eight months. It was filled with exciting experiences and at times promised to terminate fatally to the members of the Commission.
The Commission visited all the wild tribes extending as far north as Fort Sill in the Indian Territory, and succeeding in inducing the tribes to meet with the Texas Commission.
In 1846, General Bee was elected Secretary of the First Senate of Texas; but when the war with Mexico broke out he joined Capt. Ben McCulloch's company and participated in the battle of Monterey. He afterwards became first lieutenant of M. B. Lamar's company and continued in the service until the close of the war. He then took up his residence in Laredo and engaged in merchandising. He was next elected a member of the legislature, and served in that capacity from 1849 to 1856. He was Speaker of the House from 1854 to 1856, filling the office with great credit to himself and his constituents. He was a delegate to the Democratic convention at Cincinnati which nominated Buchanan for President in 1856. After retirement from the legislature, he engaged in planting near Goliad, where he was living at the outbreak of the war. He served as presidential elector and cast his vote for Jefferson Davis as President of the Confederate States. He was shortly afterwards appointed brigadier general of the State militia by Governor Edward Clark, and then commissioned a brigadier general in the Confederate States army and assigned to the command of the Western District of Texas, stationed at Brownsville. He was desirous of finding a place in the main theater of the war, but in vain, since by reason of his acquaintance with the frontier and with the people of Mexico, his services were considered indispensable to the Confederate cause in that quarter.
He remained in command at Brownsville until the arrival of Banks' army at the mouth of the Rio Grande, when with the one company which had been left with him—the others having been ordered to the more eastern seat of war—he retired to the interior, taking with him a large amount of government supplies, etc. Upon reporting to General Magruder he was assigned to the command of a brigade consisting of the regiments of Likens, Terrell, De Bray, Woods, and Buchel, and marched to Louisiana, where he participated in the battles of Mansfield and Pleasant Hill. He led the cavalry charge at the battle of Pleasant Hill, one of the most brilliant on record, in which the gallant Col. A. Buchel lost his life.
After the Red River campaign, General Bee returned to Texas and continued with the army as a cavalry commander until the close of the war.
On the fall of the Confederacy, General Bee sought in Mexico to retrieve his lost fortunes, but after spending some years in that country, he returned to Texas and was appointed to a responsible position at the Agricultural and Mechanical College of Texas. After the expiration of his term he moved to San Antonio in 1879, where he continued to reside until his death, with the exception of two years spent at Austin as Commissioner of Insurance, Statistics and History, under the administration of the lamented Governor John Ireland.
General Bee was married in 1854 to Miss Mary Mildred Tarver, who survives him. Of their large family six are yet alive. He was a splendid type of the old school of Southern gentlemen—honorable, high-toned, brave and chivalrous. He passed his long life with the people of Texas, being the contemporary and associate of Lamar, Henderson, Ford, Burleson, Maverick, and a host of others whose names have become historic. He was earnestly interested in the history of Texas and its perpetuation, and died as he had lived, universally beloved and admired for his sterling qualities of mind and heart. Peace to his ashes.
[For much of the matter contained in this paper I am indebted to the Bureau of American Ethnology and to Mr. Charles C. Royce and Professor Cyrus Thomas, its learned and efficient workers. These sources of information may be profitably consulted by any person interested in the aboriginal literature of our country.—V. O. K.]
The Cherokees, more properly the Tsullakees, have occupied a more prominent place in the affairs and history of the United States than any other tribe, with the possible exception of the Iroquois, or Six Nations, of New York. They bear some resemblance to each other, and though an open question, the Cherokee dialect is held by the American Bureau of Ethnology to belong to the Iroquoisan family of languages. This opinion leaves the inference that in the remote past there was tribal union between them.
Less than half a century after Columbus touched these shores, De Soto and his followers began their march to explore the lands that lay beyond. They penetrated the country as far as what is now the northern limits of Georgia, and the northeastern corner of Alabama, when they came in contact with a tribe of natives, reported in their memoirs as Chelaques, but which have since been abundantly identified with the Cherokee Indians. They occupied as homes and hunting-grounds nearly the whole territory south of the Ohio river and east of the Mississippi—the areas excepted being the present States of Mississippi and Florida, and the southern extremities of Alabama and Georgia.
Among the most interesting of the relics that reveal somewhat of the inner life of these autochthones at this early period, are their sacred formulas, transmitted to them from a remote past, through traditions confided to their shamans, or priestly fathers. For a knowledge of these formulas, the world is indebted to the genius of an unlettered Cherokee. Sequoyah, in 1821, with a marvelous gift of invention, and unaided by artificial learning, constructed a syllabary, by means of which the speech and thought of his people were, for the first time, brought in obedience to written characters. No other tribe in North America had then an alphabet of its own. The Crees and Micmacs, in Canada, and the Tukuth Indians, in Alaska, had ideographic systems, invented by missionaries, and the Mayas, in Central America, wrote in hieroglyphics, but neither of them possessed a literary contrivance by which words and sentences could be constructed, after the method of a true orthography. The admirable genius of Sequoyah gave to his people this contrivance, by which their sacred formulas were rescued from infirm or unfaithful memories, and have become part of the written literature of the native races. Many of the Formulas, thus escaped from the crypt of ages, have been secured by the United States Bureau of Ethnology, and possess for the lover of aboriginal research the peculiar interest that in them is embalmed the faith and the philosophy of one of the most striking of the primitive peoples of the continent. These Formulas are terse, turgid, and cabalistic phrases addressed to their divinities, and which, though chiefly in the form of supplication, are sometimes songs of praise and eulogy, and sometimes charms to compel the favors of languid or reluctant spirits. In this latter form, they are multiplied to meet every danger and every exigency of life; and in war, in pestilence, in famine, in floods, in droughts, they are trusted with reverent, unfaltering faith. The lover, the hunter, the warrior, each, through his shaman, appeals to the potential energy of the Formula for the successful issue of his enterprise. Even after the missionaries of the white men had introduced their religion among these simple worshipers, and they had surrendered most of their creed, they still held tenaciously to the Formulas, as if, in some manner, interwoven with the destiny allotted them. The shaman, after his profession of the Christian faith, combined his mystic phrases with texts of Scripture in the same religious service, and it was not uncommon to see him publicly officiating as Indian conjurer and Methodist preacher.
The Formulas, in their structure and purpose, very closely resemble the phylacteries of the Hebrews, which consists of extracts from their sacred book written on strips of parchment and, according to the Targum, worn about the person as amulets to drive away evil spirits. That these phylacteries should reappear in oral form among an unlettered people, between whom and Israel there are other points of resemblance, may, not unreasonably, be taken as an added argument in support of the theory that part of the Jewish captives wandered from Assyria into the New World, where they were absorbed and lost in the broad and friendly bosom of their indigenous host.
The Sacred Formulas possess an ethnologic value second to no other known means of discovering tribal cult and character, and they afford measureless aid to the study of native folklore before it was influenced by the white man's presence. The Medical Formulas are concerned only with the health of the people, and they are based upon the following allegory: All the animals of the earth met in council to devise means for the destruction of man, their common enemy. Each species possessed the power over some particular deadly pestilence; these distempers they combined and turned loose upon the devoted race. The suffering and mortality that followed were so appalling as to excite the pity of the vegetable world, which, in its turn, called a council. Each species in this Kingdom was gifted with the balm that brought healing to some one of the many ills that afflict mankind, and, in the supreme moment of his despair, they distilled their life-giving balsams for the deliverance of man. The Shamans, who lived in close communion with floral nature, were intrusted with her secrets; these secrets they embodied in formulas which they delivered to the people that they might hear the glad message; and thus they were saved. To the credit of this tradition, it may be affirmed that their Shamans were really instructed in the medicinal qualities of many indigenous plants. Other plants in their Materia Medica were wholly inert; these they employed as fetiches from some fancied resemblance to diseased organs, for the principle of “similia similibus” was as familiar to their ancestors as to the modern school of Doctor Hahnemann. Failing memory was treated with beggarlice and other burr-bearing plants, that the sticking qualities of the burrs might be imparted to the memory. Goat's Rue was prescribed for falling out of the hair because the roots of this plant are tough and difficult to pull up. The Maidenhair Fern was administered for rheumatism that the contracted muscles might unbend as the fronds of the fern unroll during its healthy growth. But the Medical Formulas were not restricted to drugs as curative agents. The bath, especially in a running stream, was a most trusted resource in the Cherokee therapeutics, and it is curious to note that the patient was directed to plunge seven times in the healing flood, even as Elisha, three thousand years before, directed Naaman to wash in Jordan “seven times” for his leprosy. The numeral seven, it may be remarked, was as much a mystical number with the Cherokee as with the Israelite; this is shown in his law establishing the seven days' purification and in other ceremonial customs enjoined by his faith.
The Religous Formulas of the Cherokees reveal a system of belief and practice almost unique. They had no Great Spirit, yet their pantheon was crowded with gods; they looked forward to no happy hunting-ground as the reward of their courage and sacrifices, but their faith was immovable in the temporal rewards that were to crown their savage virtues. Long life, freedom from pain, success in war, in love, in the chase, were the gifts of the gods they worshiped, and their name was legion. They saw these gods clothed in the forms of birds and reptiles, of mountains and streams, they heard their voice in the storm and felt their presence in the frost, and they bowed down in homage to them all. When death came it was to them the end of all things; no fears disturbed their last moments and no sorrow wrung the heart of their children.
The Military Formulas of the Cherokees were designed to render their warriors invulnerable in battle, to which end they prescribed charmed roots and ceremonial washings. A writer for the American Bureau of Ethnology, referring to the practice here enjoined, mentions the fact that it was religiously observed by almost every man of the three hundred Cherokees who served in the war between the States, and he humorously adds, “It is but fair to state that not more than two or three of the entire number were wounded in actual battle.”
The devotional methods of the Cherokee disclosed by these Formulas and the traditions inspiring them reveal in him an essentially religious mind—the result of his close relation to creative power. Like the Jew, and in common with other Indians, he “believed himself to be the result of a special creation by a partial deity, and held that his was the one favored race,” but, unlike the Jew, he has not been able to impress his sacred character upon other races of men.
It was nearly a century after the expedition of De Soto before the Cherokees again met the white man. Then they encountered the pioneers from the Atlantic coast, and then the racial conflict began—a conflict that for two hundred and fifty years has been waged against the rapacity of Anglo-Saxon civilization. When first begun, the villages of the Cherokees covered the mountains and valleys of the Shenandoah, and their scouts camped on the summit of Monticello. Upon the Blue Ridge the Cherokee sat as upon a thone; within his dominion was cradled “the Tennessee and the Cumberland, the Kanawha, and the Kentucky, the Pedee and the Santee, the Savannah and the Altamaha, the Chatahoochee and the Alabama;” along their banks he pursued his game, and upon their laughing waters his love-song and his war-whoop were carried to the sea. These scenes of sovereign sway remained undisturbed for many years after the white man became the red man's neighbor. The distance between the mountains and the sea coast for a long time kept them apart. The cupidity of the white fur-trader, however, and the display of his coveted goods brought the two together within the dominions of the native monarchs. The Ahabs thus saw their neighbor's splendid vineyard and were stricken with a passion to possess it. The title to the coveted possession was thenceforth to be only a question of time.
From 1721 to 1783, the Cherokees made ten treaties, by which the Colonies of Virginia, Georgia, and the two Carolinas acquired seventy thousand square miles of land. From 1785 to 1866, they executed thirty-five treaties with the United States, by which they ceded fifty-six thousand square miles of territory lying south of the Ohio river. To the new country thus acquired, the Americans of the Atlantic States were early attracted. Among these immigrants was the widowed mother of Sam Houston, who, with her family, moved from Virginia to Tennessee, in 1807, and settled on the Tennessee river, the boundary line between the American and Cherokee possessions. Her son, the future hero of San Jacinto, was then fourteen years of age, and was not long in finding his way across the river to the red braves of whom he had heard, and for whom he had conceived a most romantic passion. Their unfettered habits, their wild liberty, their love of adventure, found in him a responsive chord. He was daily, and often for days, without intermission, among his new friends, and for four years the companionship continued. During this time he was adopted by the Chief Oolooteka, as his son. Two years afterwards, he fought in the Creek war, side by side with the Cherokees, as American allies.
Notwithstanding the vast areas acquired from the Cherokees, they were still in possession of extensive domains, and these gave rise to such frequent conflicts with white settlers, that the United States government resolved upon separating the hostile elements. As early as 1803, President Jefferson suggested the exchange with the Indians of their lands on the east of the Mississippi for equal areas on the west, lying within the Louisiana purchase. In 1809, a few Cherokees moved to Arkansas, and ten years later six thousand had emigrated; the majority, however, resented the most alluring offers, and clung with superstitious tenacity to their native hills and streams. Their obstinacy, and the commotion attending it, again brought Sam Houston in the drama of Cherokee life. He was appointed sub-agent to the refractory tribe, and successfully carried out the treaty recently concluded with it.
In 1822, a convention was made between the Cherokees and the Empire of Mexico, by which the Indians were permitted to occupy and cultivate certain lands in eastern Texas, in consideration of fealty and service in case of war. Neither the empire, however, nor its successor, the Republic of Mexico, would consent to part with their sovereignty in the soil, and persistently refused any other rights than those of domicile and tillage to the savage tenants. What is known in Texas history as the Fredonian War, was largely the result of this refusal. It was inaugurated under a solemn league entered into in December, 1826, between the white colonists and the disappointed tribes, and its purpose was to prosecute against Mexico a war of conquest, and divide the conquered territory. Owing to a combination of disasters, the expected recruits did not join the Fredonian standard, and its little army melted away under the apathy of friends and the overwhelming numbers of enemies.
In 1825, the Cherokees remaining east of the Mississippi numbered about thirteen thousand, and owned about the same number of slaves. They had adopted many of the habits and industries of the white man, and were rapidly adopting his laws and his civilization. Trusting to their interpretation of certain treaty guarantees, made by the United States, they formed themselves into a sovereign nation, within the limits of Georgia, which aroused the resentment of the State, and resulted in serious complications with the general government—only tranquilized by tedious negotiations and wise counsels.
In 1828, the government ceded to the Cherokees seven million acres of land in Arkansas Territory, in exchange for lands east of the Mississippi. The year following, they were visited in their new home by their friend and former guest, Sam Houston. In the ten years that had elapsed since his sub-agency among them in the east, he had achieved distinction at home, had married a young wife, and had become Governor of Tennessee. For reasons not historically known, he had abandoned his bride, abdicated his high office, became a voluntary exile from civilization, and was then in the wild home of his friends, seeking the hospitalities of refuge that he knew would not be denied him. He there found Oolooteka, his adopted father, who took him to his bosom, and soon made him a citizen of the Nation. He lived three years among this untutored but warm hearted people, and then was called back to civilization by the President's commission to negotiate a peace with the Comanche Indians. This took him to Texas, where distinction awaited him; also an opportunity to serve his constant friends.
After occupying the Arkansas tract for five years, the Cherokees, by a new treaty—that of 1833—exchanged it for seven million acres, lying in the present Indian Territory. The Cherokees east of the Mississippi were, meanwhile, agitating with endless conflicts the white people and their governments. They were haunted with the fear of forcible expulsion from their ancestral seats in the east, and of losing their tribal identity in the common mass of amalgamated savages in the west. There seems to be a sentiment universal in the human heart to cherish with reverence the ancestral stream down which has coursed its own life blood. “Even the meanest and most ignorant of the Tartars,” says Gibbon, “preserved with conscious pride the inestimable treasure of their genealogy.” Pride of ancestry had deep root in the Cherokee breast, and it cried aloud for resistance to acts that would, at a blow, rob them of both the name and the home of their fathers. They, therefore, in 1829, set up their claim to nationality, and to all the sovereign rights that belong to it. President Jackson answered this claim by recalling the fact that, during the Revolutionary war, they were the allies of Great Britain, and that, consequently, by the event of the war, their sovereignty, like hers, ceased over every part of the territory embraced within the limits of either of the thirteen Colonies. He also recalled the fact, that, while the government, under the treaty of 1783, received the vanquished Cherokees “into favor and protection,” it did not restore to them their lost sovereignty. A sullen discontent rankled in the bosom of these disappointed Indians for several years. At last, in 1835, a treaty was negotiated with them, by which they ceded to the United States all their remaining territory east of the Mississippi, consisting of about eight millions of acres; and stipulated to remove west two years after the ratification. The consideration therefor was five million dollars, and the new home designated was the western outlet lying beyond the Indian Territory. The removal of the Indians was opposed by John Ross, their Chief, and excited such general discussion that it forced itself into the politics of the day.
In this same year of 1835, the Western Cherokees sought recognition of their alleged claim under the Mexican convention of thirteen years before. The General Consultation, urged thereto by Sam Houston, who was a member of that body, also commander of the Texas army, affirmed their title to the lands they then occupied north and west of Nacogdoches and lying between the Neches and Angelina rivers. In February of the following year, Sam Houston, as chairman of a commission appointed by Governor Henry Smith concluded with these Indians a treaty of amity, alliance and cession. In 1837 the senate of the Republic of Texas rejected the treaty of the Provisional Government, and in 1838 President Lamar directed the attention of congress to this act of the senate, and to the further fact that Mexico had never, under any form of government, either conveyed or promised to convey as allodial property any portion of the Texas territory then, or at any time, occupied or claimed by the Cherokees. In July of the following year the Texan government summoned a conference with the Indians and proposed to reimburse their expenditures on condition of their peaceable return to the Indian Territory. Their wily chief, Bowles, prolonged the parley till he could bring up reinforcements. A two days' battle resulted. Rusk and Burleson, with five hundred Texans, drove a thousand braves out of the land, killing their leader and burning their villages. This appeal to arms decided the conflict of title in a manner that admitted of no appeal and brought permanent peace to the settlements. Six months later, Gen. Rusk drove a remaining fragment of these Indians from San Saba county, in which they had sought refuge. In the following year their powerful and steadfast friend, Sam Houston, then a member of the Texan congress, made a last and vigorous appeal in their behalf. It was unavailing, and the Cherokees thenceforward ceased to vex the people of Texas with either their presence or their supplications.
During these struggles of the Western Cherokees for expansion of territory, their Eastern brethren were contending with the United States for the possession of the lands they had surrendered under the treaty, and were ultimately transferred by threats or by military force to the West. A few of their number had betaken themselves to the mountains of North Carolina and Tennessee, and thus escaped the general exodus of their tribe.
After all the Cherokees were finally settled on their extensive reservation in the West, it was found that they were torn by dissensions and divided into hostile parties. These parties were three in number: The “old settler” element that had voluntarily removed in 1819, the “Treaty” or “Ridge” element that migrated under the treaty of 1835, and the “Ross” element that was removed by military force. All efforts at reconciliation were futile; the chiefs grew more resentful under discussion; ferocity crept into every wigwam; and the assassination of prominent leaders became the rule of conduct expected of every patriot. These disorders could not be permitted by the government of the United States, and in 1844 the President appointed a commission to inquire into their cause and suggest a proper remedy. It met at Fort Gibson, but its inquiries yielded no practical results.
About this time, when the nation most needed the counsels of its wise men, it sustained an immeasurable loss in the death of the venerated and gifted half-breed, Sequoyah, also called from his Dutch father, George Guess, who, it will be remembered, was the unlettered inventor of the Cherokee alphabet. He has been called the Cadmus of his people; but greater was he than Cadmus. The Phoenician carried to Greece letters already invented, the Cherokee invented them himself. A true lover of his people, he had gone to Mexico to find and bring back the scattered bands of his discontented brethren and died in the midst of his search, and was buried far from the tomb of his fathers and unsung in the solemn dirge of his nation.
After this great national bereavement, the factions grew more violent, and so great became their rancor that within the short space of a few months the annals of this wretched people were stained with a record of thirty-three murders of the nation's distinguished men. The United States again interposed their authority to put an end to this state of anarchy and crime. Commissioners conferred with representatives of the three factions and negotiated with them a plan of pacification out of which grew the treaty of 1846. It provided for the extinction of all sectional policies and a general amnesty of all political offenses; it also reaffirmed and extended the cession of land already made, and provided for their reversion to the United States in case of the extinction of the Cherokees or their abandonment of the possession.
After an interval of comparative repose, the Cherokees were again aroused by serious disturbance. White settlers were trespassing upon their territory, and abolitionists from the North were corrupting their slaves. The United States, in 1860, sent troops to expel the invaders, but the Civil War put a stop to these military operations. The war itself was the signal for further intestine strife. The Indians were divided on the question of slavery, and were, therefore, divided in their allegiance between the two contending sections. The Ross party was in sympathy with the North; its opponents were friendly to the South. The two factions, however, met in convention and there healed their differences, and as a single nation formed an alliance with the Confederate States. They organized two regiments for the Southern army, and placed them in command of Col. Drew and Col. Stand Watie, adherents of the Ross and anti-Ross parties, respectively. Col. Drew's regiment of Ross men soon deserted the Confederate colors and enlisted in the United States service. Ross then renounced his affiliations with the South and threw himself into the arms of the Federal government, not, however, to incur any peril in its defense, but to hide under the shadow of its protection; for he at once took refuge in the safe city of Philadelphia, in which he closely abided till the close of the war. The Indian Territory, meantime, became the theatre of guerilla warfare, and its warring factions daily grew in the fervor of their mutual hatred.
At the close of the war the United States became anxious to define their authority and to readjust Indian reservations conformably with plans to promote western emigration of citizens from the States. In pursuance of this purpose, delegates from all the tribes were summoned to meet in council at Fort Smith, and although no definite treaty resulted from this meeting, it afforded the commissioners an opportunity to submit the demands of the United States government for the preservation of peace and public order. It also enabled them to denounce John Ross as a public disturber, and degrade him from his chieftaincy; and it further afforded them the personal conference necessary to give adequate instructions to the two Cherokee factions for the submission of their grievances to the general government. For the purposes of this last object, representatives of the Federal and Confederate elements of the Nation repaired early in 1866 to Washington, where for several months their cause was judicially considered, though the court failed to effect the reunion so ardently desired by the government. In consequence separate treaties were negotiated with the hostile sections. In June that with the Southern Cherokees was concluded, by which a certain portion of the reservation was set apart for their exclusive use and subject to their exclusive jurisdiction. In July that with the Northern Cherokees was made, and inasmuch as they were in the majority, and in undisputed possession of the machinery of government, the treaty with them was made binding on the whole Nation. It provided by its terms for the establishment of a Federal court and one or more military posts in the Nation, also a general inter-tribal council; it authorized, under certain conditions, the settlement of other tribes in the Nation; it ceded to the United States in trust its “neutral” land and its “Cherokee strip,” to be sold for the benefit of the Nation; it provided a right of way through the Nation from north to south and one from east to west for the construction of railroads; and it guaranteed the Cherokees in the peacable possession of their lands, in the enjoyment of their domestic institutions, and against the unauthorized intrusions of white men. Two years later a supplemental article to this treaty was confirmed, whereby was ratified the sale of the “neutral land” made by the United States. Four years after this the government began the sale, in limited parcels, of the “Cherokee strip.”
About the time of the proclamation of the treaty of '66, the Secretary of the Interior recommended to the commissioners to restore John Ross to the chieftaincy from which they had removed him. The old leader, however, had passed beyond the elemency of his judges; he lay stricken with a mortal sickness, and died within a few days at Washington, at the advanced age of seventy-six years. He was of Scotch-Indian parentage, and his character was strongly marked with the thrift of one side, the cunning of the other, and the persistency of both. Though only a half-breed, he was always the champion of the full-blooded Cherokees in any conflict between them and their brethren of mixed descent. His career, though not altogether an admirable one, was, throughout its course, singularly remarkable.
By virtue of a provision in the treaty of '66, a body of Delawares and a fragmentary band of Munsees, also about eight hundred Shawnees, were assigned homes in the Cherokee domain, and were merged into the great family tribe of the Cherokees. The Osages, the Kaws, the Pawnees, the Poncas, the Otoes, and the Missourias, also acquired homestead tracts in the Cherokee reservation, but they still preserved their tribal independence and identity. This infusion of a new strain into the national life of the Cherokees seemed to bring together the fragments of this broken people. A season of peace blessed their unhappy dwellings, and abundant harvests rewarded their reluctant toil. Two years of such contentment served to soften the asperities that had so long divided them, and to cover their past with a healing oblivion.
Under another provision of this treaty of '66, the Congress of the United States, by grants of lands and privileges, secured the construction of two important railroads through the Indian Territory. Both opened vast regions to civilization, and peopled them with a multitude of its pioneers. Many of these did not go beyond the Cherokee lands, and so great was their number, and so largely augmented by other alien residents and by the irruption of negro freedmen, that the Cherokees, realizing their feeble minority and the danger that threatened their power, enacted laws that limited the privileges of citizenship to their own unmixed people, and that provided for the removal of all others beyond their borders. These acts were resisted, not only by the sufferers under them, but by the United States government, whose authority was thereby superseded, in violation of treaty engagements. In consequence, an order was promulgated, forbidding the removal of aliens unless by judicial process after due trial and approval by the Department of the Interior. The harsh procedure proposed by the Nation's legislative council was thus averted, but for ten years the questions involved provoked angry and unending conferences between the Federal government and the Nation, and kept the threatened classes in perpetual fear of physical harm or of ultimate eviction from their homes.
The United States government sought to remedy these evils, which, it was thought, resulted from the system of holding the entire Indian domain in a single unbroken tribal tract. Provision was, therefore, made, under act of February 8, 1887, for the allotment of lands in severalty to Indians on the different reservations. Four years later, part of the cause of the irritation was removed by the retrocession to the United States of the six million acre tract known as the “Cherokee Outlet” and the enrichment of the Cherokee treasury by a deposit of eight million dollars to its credit.
By act of March 3, 1893, Congress, among other measures of relief, made provision for the training school of the Cherokee settlement in North Carolina—the last remnant of the Nation east of the Mississippi. By the same act the system of land allotments already inaugurated was further strengthened and promoted. To this end the President was directed to appoint three commissioners to negotiate with the Five Civilized Tribes, of which the Cherokee Nation is one, for the surrender of tribal title to all lands in the Territory, either by cession to the United States, or by allotment in severalty among the Indians, or by other equitable means to be agreed on—this extinguishment of title to be the precursor of the creation of one or more States out of the lands so taken from the national domain. The agency created under this law is known as the Dawes Commission, so called from the name of its chairman. It has been perpetuated and its powers enlarged by subsequent acts, the last of which abolishes tribal courts in the Territory, substituting Federal courts in their stead, and gives to the President the veto power over all acts of tribal councils. Thus despoiled of a Nation's vital functions, but little remains to be done to complete the destruction of tribal autonomy; that little may be safely predicated of the policy that has thus far directed the counsels and the conduct of the government.
The Dawes Commission has reported its inability to effect the submission of the tribes, and it particularly mentions the Cherokees as inflexible in their opposition to any agreement that contemplates the final act of tribal disintegration. The chairman is of opinion that the only remedy for the “evils that afflict these people” lies in the division and allotment of their public domain among the individuals of the several tribes. The Secretary of the Interior, in his report, presents a gloomy array of vicious results growing out of the Indians' methods of administering the public business, and he concludes his searching arraignment by recommending the total extinction of tribal government in the Territory and the substitution of a system by which the Indians will become United States citizens and be governed by United States laws. The President, in his message to Congress, fully accepts the Secretary's conclusions, and adds that the conditions of Indian life have so changed that their system of government has become “practically impossible,” and that the evils resulting from the perversion of the great trusts confided to them can only be cured “by the resumption of control by the government which created them.”
It does not require any remarkable perspicacity to perceive that history is about to close its brief page of the Cherokees as a Nation. Their broad fields and the boundless desire of their neighbors to possess them is hastening this consummation. The most universal passion in the breast of man seems to be an immortal longing after the soil from which he sprung, whether continent, island, or vineyard. From the day he was expelled from the garden he has wanted a paramount estate—a paradise of his own. To that end all his aspirations have pointed, and, whether Israelite, Goth, or Anglo-Saxon, his mania has ever been the conquest and possession of the earth. He may be honest in all that concerns the money and the movables of another, he may be sinless of even the desire for the personalty of his neighbor, but, alas, the allodium of his brother puts too great a strain upon his virtue; his nature breaks down under the temptation. And thus it is that the spacious and fertile acres of the Cherokees are destined, through the devices of the white man, to pass into other hands.
The Nation now numbers about twenty eight thousand souls, consisting of pure and mixed-blood Cherokees, of whites who have intermarried with them, of other tribes absorbed by them, and of negroes who, though socially distinct, have acquired civil rights under their government. Although so composite in character, this people has, for years, been daily becoming more homogeneous in all that appertains to its national life.
Notwithstanding the faults, the failures, and the infirmities of the Cherokee Nation, it may be said to have achieved a splendid victory over the calamities that have, for a hundred years, decimated its numbers and imperiled its life; and history will record that the Cherokee, in his individual progress, has demonstrated “the capability of the American Indian, under favorable conditions, to realize in a high degree the possibilities of Anglo-Saxon civilization.”
[The authorities consulted are: Redford's “Methodism in Kentucky,” McFerrin's “Methodism in Tennessee,” Thrall's “Methodism in Texas,” and old diaries and letters of the missionary.]
Littleton Fowler was born in Smith County, Tennessee, September 12, 1802. His father was Godfrey Fowler, of a sturdy old English family of Wake County, North Carolina, and his mother was Clara Wright, of an equally respectable family of Tennessee.
In 1806, his parents, with their small family of four boys, moved to Caldwell County, Kentucky, and located near Princeton. Here the old Fowler homestead is still known to this day and generation, as is also known the older Fowler homestead, dating back more than a century, near Wake Forest, North Carolina. The family has claimed Methodist preachers ever since the labors of Wesley and Asbury in America, but lawyers, teachers, writers and artists have divided family honors. Mr. Redford says, in his “Methodism in Kentucky:” “One of the sweetest spirits that ever belonged to the Methodist ministry of the West was Littleton Fowler.” The following data are from the same source, and from the missionary's old Kentucky diary:
He began to preach in 1820, but his health, which was never robust, became so impaired that he was left without an appointment for a few years. In 1828, we find him in charge of the Bowling Green church; in 1829, he was the co-laborer at Louisville of H. H. Kavanaugh, who was later bishop. Here his health again failed him, and he was given an easier work, Cynthiana Station, and later Maysville.
At a subsequent date he was transferred to the Tennessee Conference, and stationed at Tuscumbia, Alabama. In 1833, he was made financial agent of La Grange College, Alabama, which office he filled for four years, traveling over the Southern States in the interest of this foremost Methodist college for the young men of the South. It has been said that he did more for that institution of learning than any other man except its president, Robert Payne, who afterwards became a bishop of the M. E. Church.
Early in 1837, a call was made in the Alabama Conference for volunteers to go as missionaries to the Republic of Texas. A tall, slender, and delicate looking young man of thirty-five years was the first one to volunteer, saying: “Here am I; send me.” He was Littleton Fowler. Dr. Martin Ruter, an older minister, and a married man with a large family, then took his stand by the side of the first volunteer. They were immediately joined by Robert Alexander, a hearty frontiersman, who said, “I am both strong and young; let me go.” 29
Thrall says, in his “Methodism in Texas”: “In the early annals of Methodism in Texas, the name of Littleton Fowler will be forever conspicuous.”
Two older brothers, John H., and Wiley P. Fowler, had emigrated to the Spanish province, Texas, as early as 1816, and had joined a party of Tennessee relatives, George and Travis Wright, on Red River. Wiley P. Fowler soon returned to Kentucky to live a long and honorable life as one among the ablest jurists and judges of that proud State. John H. remained on Red River to serve his adopted country in many ways. In 1838, he represented Red River County as senator in the Texas Congress.
Bradford C. Fowler, another brother, was a Red River County volunteer in the Texas Revolution of 1836. He was a young sergeant in Fannin's command, but he was separated while on detail duty from the main command at the time of Fannin's calamitous surrender, so he escaped the subsequent massacre at Goliad. He went to California in 1849, to seek gold, but he found a grave instead.
Andrew J. Fowler—familiarly known as “Jack Fowler”—followed his missionary brother to Texas, in 1837, to hold many positions of trust during old Republic days and through her early statehood. He served Lamar County as Representative in the lower house of the Texas Congress in 1840-41. When the shadow of the Civil War fell on Texas, the two surviving Fowler brothers, Col. John H., and Judge “Jack” Fowler, were staunch Union men and Henry Clay Whigs; and although the younger one, my father, went to the front as lieutenant colonel of Bass's Texas Regiment of cavalry, he never again adjusted himself to the dominating political conditions of his adopted State.
With this introduction of Littleton Fowler and his brothers, in their early connection with Texas history, I quote the following from the Memoir of Littleton Fowler, written by Hon. Frank B. Sexton, of San Augustine, now an aged and honored lawyer of El Paso, Texas—and published in the Southern Quarterly Review, 1861, with the accompanying explanation by the editor: “The name of Rev. Littleton Fowler was inserted in the programme of the `Biographical Sketches of Eminent Itinerant Ministers, distinguished for the most part as pioneers of Methodism within the bounds of the M. E. Church, South,' but the sketch of that excellent man did not reach us in time for insertion in that volume. * * * Having been for several years associated with him in the Texas Conference, our acquaintance beginning with the organization of that body in 1840, it affords us great personal gratification to insert this interesting monograph in the Quarterly, though it is not a Review article.”
Mr. Sexton says: “My first recollections of the Rev. Littleton Fowler are these of my early boyhood. He was my father's intimate and valued friend. * * * I distinctly remember, when he was one of our family group, that I was often impressed with his great capacity for entertaining and interesting the social circle. He was easy and versatile, oftimes humorous, and generally instructive, and always received attention without compelling it. When Mr. Fowler came to Texas, 1837, the Republic was then a comparative wilderness. Many of his ministerial appointments were separated by a distance of several days' journey, which often had to be traveled alone and without reference to weather or accommodations of comfort. He had often to sleep on the ground, with no companion but his horse. Frequently it was necessary for him to leave the ordinary roads, or `Indian trails,' to avoid meeting treacherous Indians.
“His appointments were regularly filled, whether few or many came out to hear him. He was as ready to dispense the Word of Life to two or three gathered together in the wilderness of Texas as he had been to the hundreds in the spacious churches of Kentucky, Tennessee, and Alabama. He could pray as earnestly for the solitary sinner whom he met by the wayside, as for the Senators assembled in the Congress of the infant Republic.
“In stature, Mr. Fowler was about six feet two inches. Apparently inclined to leanness, his frame was compactly knit. * * * He was straight as an Indian; his forehead was high, expansive, and commanding; his eyes dark, brilliant, and when stirred with emotion, full of fire. * * *
“His intellectual powers were of a very high order. His views of every subject were liberal and comprehensive. Though his early education was defective—simply such as the frontier schools of his day afforded—he compensated that by close and untiring application to study after he was admitted to the ministry. All his life he was an ardent student. His style of speaking, both in the pulpit and in the social circle, was rigidly correct, and I was surprised to learn from his own lips that he had never had the benefits of scholastic training, but his attainments were almost entirely self-acquired.
“I have often heard him commence a sermon in the mildest manner; then, warming to his subject, his fine eye would kindle, and his words would enchain every ear, and his sincerity penetrate every heart. If to be able to instruct, to interest, to hold in breathless silence an entire assembly, be oratory, then Littleton Fowler was an orator.” * * *
On the 21st of June, 1838, Mr. Fowler was married to Mrs. J. J. Porter, of Nacogdoches, a lady of great beauty of person and many graces of the heart. She was one of the Lockwood sisters, of Newport, Kentucky, who were noted beauties and belles of Louisville, Frankfort, and Cincinnati. They were the daughters of an army officer, and she was born in 1806, at Fort Madison, Louisiana—which was near Baton Rouge—while her father was stationed at that frontier military post. Later, her mother, being widowed, married John Cleve Symmes, author of “Symmes' Theory,” which made such a stir in the world about 1825.
I have lately read with eager interest, a letter from Boston, of date 1825, from Anthony Lockwood, the step-son of the lecturer, Symmes. The letter mentioned tells of the large crowds that greeted Captain Symmes nightly in Boston, New York, Philadelphia, and other cities, to hear him lecture on his “Theory of Concentric Spheres,” or a hole through the earth, from pole to pole. 30
Miss Missouri Lockwood married Dr. J. J. Porter, in Newport, Kentucky, and came with him to Texas to make their fortune, in 1835. He became a merchant at the old mission village of Nacog doches, but he soon met an early and shocking death. A large bear had been captured and chained to a tree near the old stone fort. Late at night, Dr. Porter was returning home, when all others were asleep, when he walked into the arms of the powerful beast, and was killed before his cries could bring help. His wife, who had accompanied him to Texas to seek riches, remained, to subsequently marry a missionary, and share with him his many and varied labors, becoming herself the first Protestant woman missionary of Texas.
For years she was his constant companion, traveling on horse-back over Indian trails to minister to sick and dying emigrants and settlers, or to help bury the dead. Many a time she fashioned a simple shroud of a sheet, or a curtain, by the light of a tallow dip, while her husband helped to nail together a rude coffin for some pioneer who had died in Texas' wilds, far from home and kindred.
This remarkable woman, the exponent of all that was good, beautiful, and true, of native refinement and great culture, possessing rare piety and broad Christian humanity, lived out her life of rich deeds well beloved throughout all East Texas as “Aunt,” or “Mother” Woolam, the wife of the venerable Methodist preacher, John C. Woolam. She survived her missionary husband nearly half of a century. Her memory is cherished as something beautiful and precious by all her descendants and kindred. Truly, it was a privilege to know her.
The foregoing facts may seem to be too much of a personal nature, but they belong to a sketch of the missionary and to Texas history; old letters and journals, which establish every proof, are in possession of the author of this sketch.
Quotations from the journals of the missionary are now begun on his departure from Alabama for the mission field of Texas:
“Tuscumbia, Ala., August 22, 1837. This day I start for the Republic of Texas, there to labour as a missionary. I have recently been appointed to this work by the Board of Foreign Missions at New York. The impression on my heart and the call to go as a missionary to Texas were as strong and as loud as was my call to the ministry; consequently I go fully expecting the presence and blessings of God. While viewing the labours and privations that await me, my soul is unmoved. Rather do I rejoice that I am accounted worthy to labour and suffer for my blessed Lord; yet the fact of leaving my country, my kindred, my friends, and brethren, fills me with deep sorrow and touching affliction. Rev. Dr. Martin Ruter and Rev. Robert Alexander are to be my co-labourers in the mission field of Texas. * * *
“In Arkansas I engaged John B. Denton, a local preacher, to accompany me to Texas to work in the missionary field. * * * We held a camp-meeting near Clarksville, Red River County, near the first of October. From Clarksville, in the protecting company of three others, we two, with provisions for four days packed on our horses, struck out across Texas for Nacogdoches. We slept in the forest four nights, and arrived at Nacogdoches on October 16, 1837, and preached two sermons. On our way thither we passed the unburied body of a man who had been shot six weeks previously for horse stealing.
“October 19th we reached San Augustine and preached four nights in succession. There I began a subscription for building a church. In less time than two weeks a lot was deeded, $3500 were subscribed, trustees were appointed, and the building was under written contract to be finished before the first of next September. `Praise God from whom all blessings flow.'”
This was certainly the church, the laying of the corner-stone of which is written of in an isolated part of the missionary's Kentucky journal. It has often been written that Littleton Fowler set up the first Protestant church in Texas. However that may be, here is quoted the isolated entry mentioned:
“San Augustine, Republic of Texas, January 17, 1837.” (The figure seven is evidently wrong, a slip of the pen, and should be eight.) “To-day the corner-stone of a Methodist Episcopal Church was laid at this place, according to the usages of the Masonic Order. Between forty and fifty Masons were present, and from five to eight hundred people, about one hundred of whom were ladies. Two speeches were delivered, the first by myself, and the second by Gen. T. J. Rusk, in his clear and convincing style. The event was one of moral grandeur. This corner-stone is the first one of a Protestant Church west of the Sabine River. * * * This is only the beginning, the first step of Protestantism that will some day march a grand army to the confines of the Republic of Texas.”
During the session of the East Texas Conference, held in Palestine last December (1897), the old bell from this church was presented, as an historic relic, to that Conference, by Mr. Columbus Cartwright, of San Augustine. The son of the missionary, Presiding Elder Littleton Morris Fowler, and a grandson, Ellis Smith, preacher in charge of Jefferson Station, were requested to convey the bell to the altar, and there ring out its old voice in memory of early Methodism in Texas.
The presentation speech was made by Presiding Elder Thomas J. Smith. The son of the missionary was requested to give the speaker historic data relating to the old bell, but he deferred to the author of this sketch. A few days later, great was my amazement to see the bell presentation written up in the Galveston News, with the startling assertion that this old bell was first rung on the day of the laying of the corner-stone. I met the News correspondent a few hours later, and I told him I was “so glad to learn when the old bell of the first Methodist Church in Texas was rung for the first time.” All the light I had on the subject was a letter from Judge W. P. Fowler, of Kentucky—about 1840—saying that the First Methodist Church of Louisville, which the missionary had served as pastor, would send him its first bell for his first Texas church. The News correspondent replied that nobody said when it was rung for the first time in Texas, so he “fixed it up that way.” Thus is much of our history writ.
Again, quotations from the old journal are resumed:
“On the night of the 14th, November, 1837, I preached in a school house in Washington-on-the-Brazos, to a crowded assembly, with many people standing before the door. Here Mr. Gay gave two lots, 100×120 feet, for a Methodist church. The Baptists have the frame of a church already up here.
“From Washington I traveled (on horseback) to the capital city of Houston. I arrived Sunday morning, November 19th, and preached in the afternoon to a very large assembly. * * * Here I find much vice, gaming, drunkenness, and profanity the commonest. The town is ten months old, and has 800 inhabitants; also many stores, and any number of doggeries.” Note the old-time Texan word.
“November 21st. To-day the Senate of the Texas Congress elected me Chaplain, to serve the rest of the session. It is my prayer that this act of the Upper House may prove an open door for the entrance of the Gospel into the new Republic. I pray that God will give me grace, keep me humble, and make me faithful in the discharge of my religious duties.
“Nov. 24th. To-day I have been listening to the trial of S. Rhoads Fisher, Secretary of the Texas Navy, in the Senate Chamber. He stands impeached by President Houston. Gray and Kaufman are the counsel for the prosecution. Ex-President Burnet and General Rusk for the defense. Gray opened the trial by the reading of documents for two hours and one-half. He was followed by Burnet at some length and with much bitterness towards the Chief Executive; his speech disclosed a burning hatred for the President. Rusk spoke in a manly style, that was clear, forcible, and full of common sense—the best kind of earthly knowledge.
“Nov. 25th. The trial of Mr. Fisher was continued to-day by Mr. John Wharton, in a most furious tirade against President Houston; it was the bitterest invective I ever heard uttered by man. He was followed by Mr. Kaufman, who was quite respectful to Mr. Fisher; his whole speech was fair and well taken.
“Nov. 26th. I preached morning and night in the capitol, to large and respectful assemblies. * * *
“Nov. 27th. Steamboat arrived to-day with 103 passengers from the United States. * * *
“Nov. 28th. The Senate is in secret session on the case of Fisher. * * * I gave one dollar for one-half pound of bacon for a poor, sick, and hungry man.” * * *
Here occurs a break in the record, caused by the serious illness of the recorder. After two weeks, the journal resumes:
“Dec. 12th. Many have been my temptations since coming here, but, thank God, they have been overcome. I have lived near to God by prayer, preaching, visiting the sick and dying, and burying the dead. * * *
“Dec. 19th. Congress adjourned to-day.
“Dec. 21st. This morning I leave for San Augustine. I have obtained a deed to a lot in Houston for a house of public worship. It is situated near the capitol, and is 125 feet long and 250 feet wide.”
Thrall's “Methodism in Texas” says: “During the time he—L. F.—was in Houston, he received from the Messrs. Allen, a title to half a block of ground, upon which the church and the parsonage in that city now stand.”—1872.
His journal tells also of his negotiations for church lots, and the erection of church buildings in Nacogdoches and Marshall, in addition to the churches of San Augustine, New Washington, Houston, and other places.
As the records between are of church work alone, entries made at Houston during the spring session of Congress, are again resumed:
“April 5, 1838. I left Nacogdoches in company of Generals Rusk and Douglass, and Drs. Rowlett and Richardson, for Houston, where we arrived on the 12th, after six days of travel over good roads in fair weather. We found Houston much improved and improving. There is much building and a great increase in population. The Senate had organized when I arrived, and the Rev. Mr. William Y. Allen, a Presbyterian minister, had been appointed Chaplain pro tem. He impresses me as a man of piety. Rev. Mr. Newell was invited by the Speaker to so serve the House. Mr. N. is an Episcopal minister, who is said to be engaged in writing a history of Texas.”
In a private letter, dated April 21st, Mr. Fowler speaks more freely of the chaplaincy, as follows: “Two days ago there was held an election in the House for Chaplain. The result showed one blank, four votes for Mr. Newell, fourteen for Mr. Allen, and seven by way of burlesque for an apostate Catholic priest of San Antonio. Had they so handled the sacred office in the Senate, they could have done their own praying so far as I was concerned, for I would not have served them.”
“Sunday, April 14th. I preached morning and afternoon in the Capitol, Mr. Allen at night. There were large gatherings at all three services.
“April 16th. To-night I attended the assembly of the Grand Lodge in the Senate Chamber. There were about forty (40) members present, and much decorum was observed by the fraternity.”
Here is quoted a paragraph from the memoir by Mr. Sexton:
“Mr. Fowler was a zealous and active member of the Ancient and Honorable Order of Free and Accepted Masons. Here, as elsewhere, he merited and received the confidence and attachment of his brethren. He was the first Grand Chaplain of the Grand Lodge of Texas, and was present at its organization. The records of the Grand Lodge still exhibit his name as one of its original members.”
“April 23rd. I was invited to dine with President Houston, but declined on account of indisposition and for other reasons. He had about a dozen friends attendant on his hospitality.”
Again the private letter of date 21st April is quoted from: “Today is the second anniversary of the battle of San Jacinto, and a fine time for “Big Bugs” to get drunk without reproach. Happy am I to say that my friend and brother, General Rusk, is much reformed. Last night a splendid ball was given at the hotel. About fifty ladies, and two hundred or three hundred gentlemen were in attendance. I enclose a ball invitation which may afford you some amusement to see how such things are done in the Capital of the Republic. Please do not infer from this that I am partial to such assemblies.”
One more incident copied from his journal, and a letter dated May 14th. “So soon as I recovered from my serious illness I took a trip to Galveston Island with the President and the members of Congress, and saw great men in high life. If what I saw and heard were a fair representation, may God keep me from such scenes in future. * * * The island is destitute of timber, but seems to be quite healthy. We were most hospitably entertained. It is destined to be the chief point of commercial importance, perhaps the chief city of Texas. On our return on Sunday afternoon, about one-half on board got mildly drunk and stripped themselves to their linen and pantaloons. Their Bacchanalian revels and blood-curdling profanity made the pleasure boat a floating hell. The excursion to me was one of pain and not pleasure. I relapsed from this trip and was brought near to the valley of death.”
After the marriage of Mr. Fowler that spring, 1838, he continued to reside in Nacogdoches and San Augustine for several years. Later he placed his family, consisting of his wife, two children, Mary and Littleton, and his stepson, Symmes Porter, on his farm in Sabine County. For their protection during his many and prolonged absences, he engaged an illiterate but aspiring and worthy young man, John C. Woolam, promising Mr. Woolam a home and an education in return. He was the same friend to whose keeping Mr. Fowler gave his family when he was dying. So worthy of the trust confided to him did Mr. Woolam prove, that he became, in the course of time, a husband to the widow and a father to the orphans of the distinguished preacher, whose memory he never ceased to revere “e'en down to old age.” Father Woolam was a noble man.
Mr. Fowler held responsible positions in his church till his death. After the death of Dr. Ruter in the spring of 1838, Mr. Fowler succeeded him as Superintendent of the Texas Mission till the organization of the Texas Conference in 1840. He was then made presiding elder of the East Texas district, which embraces Texas territory between Red River and the Gulf of Mexico and the Sabine and Trinity rivers.
For nine years Mr. Fowler represented the Texas work in the general conferences of the United States. So stirring were his appeals at those assemblies for co-laborers in Texas, that many young men responded to the call, and came out in small companies, to die of Texas malaria while preaching the Word of God to the Texas pioneers.
Mr. Fowler was co-delegate with a Mr. Clark, of Austin, to the General Conference, held in Philadelphia in 1844, memorable for the division of the Methodist Church into North and South. Mr. Clark took his stand with the Abolition party, while Mr. Fowler voted with the Southern delegation. His letters to his wife during that troubled session show great anguish of spirit, for he sadly deplored the wrathful separation.
He, with his beloved co-worker, Robert Alexander, was the moving spirit in the founding of Rutersville College, 1838, in memory of the great and lamented Dr. Ruter. He founded Wesley College, at San Augustine, 1842, and made his brother, Jack Fowler, professor of mathematics and ancient languages in that institution. Fowler Institute, of Henderson, Rusk County, 1851, was so named in memory of Littleton Fowler, and many men of middle life today got their education at that East Texas school.
Littleton Fowler died at his home in Sabine County, January 19, 1846, at the comparatively early age of forty-four years. This soldier of the cross is fifty years dead and forgotten by his beloved Texas, but his reward is where noble deeds are never forgotten. His bones lie under the pulpit of McMahan Chapel, which stands in a sequestered spot twelve miles east of San Augustine, in Sabine County. There was where he organized his first Methodist “society” in Texas. Another building has taken the place of the old log church of his burial, but his grave has been undisturbed this half century. A marble slab against the wall bears this inscription:
“Sacred to the Memory of Rev. Littleton Fowler, Methodist Missionary to the Republic of Texas; Kentucky was his beloved State; Texas his adopted country; Heaven is his eternal Home.”
With one more quotation—this time from Mr. Thrall, who knew the missionary personally—this sketch closes: “In forming an estimate of the character of Littleton Fowler, the first thing that strikes one is his perfect symmetry. His fine physical form furnished a fitting tenement for his noble mental traits. In his manner, dignity and affability were beautifully blended. He had a most benevolent expression of countenance, a keen, piercing eye, and a musical, ringing voice. His mind was well cultivated; his religious experience was cheerful; his convictions of the truth and the power of the gospel were remarkably strong. He was the very man for Texas, and when he died, Texas Methodism went in mourning. He was buried under the pulpit of his home church, where he had so often stood as a Christian ambassador.”
BOOK REVIEWS.
The Government of the People of the State of Texas. By George Pierce Garrison, Ph. D., Professor of History, University of Texas. Philadelphia: Eldredge and Brother. 1898. Pp. 160.
That education is the guaranty of good government is almost axiomatic. That instruction should have a direct reference to the duties of citizenship begins to be recognized. Knowledge of general principles of political economy and of the broad outlines of constitutional law is no longer considered ample equipment for the citizen. He is of the government. It his duty and right to know its workings.
In his “Civil Government of Texas,” Dr. Garrison has performed a most valuable service to the cause of education in the State, and has furnished a model to be followed in other States. The book is designed for use in the public schools, and is admirably adapted to that purpose; few people are, however, so well informed concerning the history of Texas, and the details of her government, that a careful study would be without profit to them.
The suggestive preface is followed by a short historical sketch of Texas. This part of the work shows great discrimination in the selection of material, and excellent taste and judgment in its disposition.
The body of the book is devoted to an exposition of the government of Texas. An outline of all the departments and divisions and agencies of the State is given, and their several functions are defined. Concise statements are made concerning the duties of State, county, and municipal officers. The duties and privileges of citizenship are set forth, the more general principles of administrative law are mentioned, and attention is directed to some of the characteristic features of Texas jurisprudence. Nothing appears to be omitted which would seem properly to belong to such an outline.
The whole is concisely, clearly, and accurately stated and logically arranged. The author suggests in his preface that the purpose kept steadily in view had been to give “a description of the origin and growth of the State of Texas and the present working of its government, that shall be both easily understood and also, in a manner at least, logical and scientific in its arrangement.” The author, the teacher, and the student are to be congratulated upon the excellent manner in which this purpose has been accomplished. A Texan proud of the history and the institutions of his State can but entertain and express the hope that Dr. Garrison's work will find its way into all the school houses of Texas.
R. L. Batts.
Batt's Annotated Revised Civil Statutes of Texas. By R. L. Batts, Professor of Law, University of Texas. Vol. I. Austin, Texas: Eugene Von Boeckmann Publishing Company. Pp. xv-1164.
During the existence of Texas as a government, there have been numerous and radical changes in her constitutional and statutory law. In many respects, her jurisprudence is peculiar, and these peculiarities can be learned nowhere except in her own enactments and decisions. Elementary works and decisions of courts of other jurisdictions are, of course, helpful, but the Texas lawyer must get his information from the Constitution, statutes, and decisions of Texas. These are becoming very numerous. Since Texas ceased to be a Mexican province she has had seven constitutions, and several of these have been frequently amended. Her statutes are changed every two years, and the decisions of her seven courts of appellate jurisdiction are accumulating with a rapidity that taxes the energy of the most enthusiastic to keep pace with them. The volumes of reports comprise six series, some with few volumes, but others approaching a hundred in number. From this it is manifest that any book which serves as a tie to bind this mass of original matter together, and at the same time offers an intelligent key to its contents, and lightens the labor in comparing its several parts, and understanding them collectively and separately, must be very valuable to all persons interested in Texas law. This task has been undertaken and most creditably performed by Hon. R. L. Batts, Professor of Law in the University of Texas, in the preparation of his Annotated Civil Statutes of Texas. The work comprises all the present constitutional and statutory law, arranged topically in alphabetical order, as in the Revised Statutes. Each topic is treated historically. That is, every article of the Constitution and every Statute is given as it is, and in notes are given references to every prior statute on the subject, with date of its adoption and its substance, and in more important matters, the prior law is quoted. In addition, under each section are notes referring to all the decisions on the subject embraced in it. These notes are carefully prepared, and are accurate and short, presenting the real gist of the case in a few clear words. None of these cases are taken or cited from other digests, or even from the syllabi of the reports, except in a few unimportant cases, on points which have been fully covered. In all other instances, the text of the decision has been examined and the note made from it. So thoroughly and intelligently is the work done, that in the text and references to former constitutions, and statutes, and quotations from them, and in the notes and citations of the decisions, it may be truthfully said that all the Texas law, on any subject, is brought together in a form easily accessible and quickly covered, and full opportunity for intelligent comparison and study is afforded. There has been no digest work in Texas since the death of Judge Paschal which, in my judgment, is equal to it.
John C. Townes.
A Comprehensive History of Texas, 1685 to 1897. Edited by Dudley G. Wooten. In two volumes. Dallas: William G. Scarff. 1898.
This history is often called the “New Yoakum.” On account of the magnitude of the work, and the interest attaching to it, the Table of Contents is, with the exception of matter explanatory of the titles, given in full:
CONTENTS OF VOLUME I.
Part I.
History of Texas, 1685-1845 By Henderson Yoakum. 31
Part II. 32
Chapter.
I. Sketches of Moses Austin, and Stephen F. Austin, with an Account of Their Colonial Enterprises. By Guy M. Bryan.
II. The Plan, Progress, and Government of Austin's Colonies. By Guy M. Bryan.
III. Official Documents, Laws, Decrees, and Regulations Pertaining to Austin's Colonies By Guy M. Bryan.
IV. Stephen F. Austin's Influence in Mexico, Captivity there, Return to Texas, and Reception by His Colonists. By Guy M. Bryan.
V. The Fredonian War in Edward's Colony, 1826-1827. By Guy M. Bryan.
VI. The Campaign of the Texan Army in 1835, Under Austin and Burleson, Ending in the Capture of Bexar. By Guy M. Bryan.
VII. Reports, Letters, and Speeches of Stephen F. Austin, Giving His Views on Independence in 1835-1836. Compiled by Guy M. Bryan.
VIII. Austin and Williams' Colony—Robertson's Colony—Last Days, and Public and Private Character of S. F. Austin. By Guy M. Bryan.
IX. Mode of Living, Customs, and Perils of the Early Settlers of Texas By Guy M. Bryan.
X. Fannin at Goliad—Battle of the Coleta—Massacre of Fannin and His Men By Dr. J. H. Bernard, an eye-witness.
XI. The Siege and Fall of the Alamo By Seth Shepard.
XII. The Women of Pioneer Days in Texas—Domestic and Social Life in the Period of the Colonies, the Revolution, and the Republic By Mrs. M. Looscan.
XIII. The “Runaway Scrape”, 1836. By Mrs. Kate Scurry Terrell.
XIV. The Annexation of Texas to the United States. By Sam Bell Maxey.
XV. The Mexican War, 1845-1848 By Sam Bell Maxey.
XVI. The History and Evolution of the Texas Flag. By Mrs. M. Looscan.
XVII. Tombs and Monuments of Noted Texans. By Mrs. M. Looscan.
XVIII. The Indian Tribes of Texas. By M. M. Kenney.
XIX. The Land System of Texas: Part I. Spanish and Mexican Titles to Land in Texas. Part II. Land Titles, Policy and Legislation of the Republic and State of Texas, 1835-94. By Dudley G. Wooten.
CONTENTS OF VOLUME II.
Part III.
The Political, Legislative, and Judicial History of Texas for its Fifty Years of Statehood, 1845-1895. By Ex-Governor Oran M. Roberts.
Part IV. 33
Chapter.
I. History of the Texas Rangers. By Gen. W. H. King.
II. History of the Texas Press. By A. C. Gray.
III. History of the Educational System of Texas. By J. J. Lane.
IV. The Physical Geography, Geology, and Natural Resources of Texas. By E. T. Dumble.
Part V.
Texas and the Texans in the Civil War. By C. I. Evans.
Chapter.
I. Military Events and Operations in Texas along the Coast and Border, 1861-1865.
II. Service of Texan Troops in the Armies of the Confederate States.
III. Hood's Texas Brigade. By Mrs. A. V. Winkler.
IV. Terry's Texas Rangers. By Mrs. Kate Scurry Terrell.
V. History of Green's Brigade. By J. H. McLeary.
VI. Notes on Granbury's Brigade. By O. P. Bowser.
Part VI.
The Results of Fifty Years of Progress in Texas. By the Editor, Dudley G. Wooten.
Considering its conglomerate character, this work is something more than a history in the ordinary acceptation of the term. Its basis, however, is the exact text of Yoakum, minus the matter in appendix. The addenda to Yoakum, bringing the history down to the present time, are on two lines—the civil by Ex-Governor Roberts, and the military by C. I. Evans, with a closing paper on the whole work by the editor. Thus the proper historical continuity has been preserved, and all the other supplemental matter may be regarded as so many side-lights thrown upon the main subject.
The dedication is to The Daughters of the Republic of Texas. The character and scope of the work are well indicated in the publisher's preface.
Col. A. T. McKinney's preliminary sketch of the author is doubtless welcomed by the public, who know curiously little of Henderson Yoakum. Even well-informed Texans will be rather surprised to learn that before leaving his native Tennessee, Henderson Yoakum was considered a great lawyer, had been a member of the State Senate, and had attained in the army the rank of colonel, and commanded a regiment in an Indian campaign.
Judge Seth Shepard's introduction, touching on every phase of Texan development, is an admirable summary of the whole work.
In the preparation of his work, Mr. Yoakum did not have access to any respectable collection of documents bearing on our earliest history; for in the fifties none existed in the State. From his scant and faculty treatment of the Franciscan missions, it is to be inferred that he made but little use of the valuable mass of Spanish MSS. then in the archives of Nacogdoches and Bexar. For want of better authorities on our early history, ecclesiastical and secular, Mr. Yoakum resorted almost exclusively to the Spanish diplomatic documents in the American state papers, and he did not always intelligently construe these.
He could not, for want of the proper documents, begin further back than 1685, and even then he was much hampered for authorities to present clearly the struggle between France and Spain for dominion in Texas. The sale of Louisiana to the United States in 1803, followed by an influx of Americans, paved the way for diplomatic intrigue and military incursions into Texas. Thanks to the jealous Spaniard and enterprising Yankee, there is henceforth no lack of material for history. In this period of the filibusters, ending in 1821, Yoakum's outline assumes more the fullness of history, enlivened with many well-told, exciting adventures. It is not, however, till the period of American colonization that the author appears in full sympathy with his subject, as he graphically portrays the labors of Austin and his colonists in laying the foundations of our mighty commonwealth.
Then ensues, in the reviewer's opinion, the best part of Yoakum's work, with its well-told story of the life of the Republic, ending abruptly with annexation in 1845.
The new notes on Yoakum do not begin till 1831. They seem to be entirely trustworthy, made up as they are from the unpublished MSS. of Col. F. W. Johnson and from the contributions of Moses Austin Bryan and Col. Guy M. Bryan, giving “the other side,” never before published, on many disputed points of our history. These notes are very valuable, and will probably stimulate further inquiry for the truth.
Colonel De Bow thus noticed Yoakum's History of Texas on its first appearance: “Mr. Yoakum seems to have collected with great care all the existing material, with much that has never yet appeared in print. All contemporary accounts, personal narratives, private correspondence, individual reminiscences, newspaper statements, and official documents are called into requisition. The work, though wanting in system and condensed expression, is still of very great interest and value, and is deserving of general study. The author was evidently an enthusiastic admirer of General Houston. 34
While approving this criticism, I would also state that “Yoakum,” with whatever defects it may have, is the accepted standard of authority to-day, having more merit than any other history of the State ever written by a Texan.
The author of the continuation of the history on its main line was a lifelong lawyer, and had been successively a colonel in the Confederate army, Chief Justice of our Supreme Court, and Governor of the State. Besides this, he was an ardent secessionist and an honest doctrinaire of the Calhoun school of State Rights politics. He has, however, given the public the most impartial history of Texas for the period covered that has ever been written.
Beginning with a striking picture of scenes attendant on the demise of the Republic and on the inauguration of the first Governor of Texas in the Union, the author patiently goes through every administration, noticing public events according to his estimate of their importance, and giving fairly both sides of every disputed question. The many public documents, with proceedings of political conventions, the courts, and the Legislature, given in the work, add greatly to its value. All public questions are fearlessly met and treated with judicial fairness.
Perhaps the best part of Roberts' history is that which relates to the disruption and reconstruction of the Union. The author's mental bias and legal training peculiarly fitted him for the task. The rise, progress, and consummation of the secession movement in Texas are described with the calmness and impartiality of a well-trained jurist. This is the more remarkable, as the author was one of the prime movers of secession and the president of the Secession Convention. In narrating the events of those exciting times, he never loses his dignity or his sense of fairness towards Houston and other Unionists. But reconstruction was the hideous nightmare worse than war for Texas. The exasperating events of this period are given without loss of temper, but the tyranny of the Davis administration does not escape recital and the proper condemnation. The period succeeding the restoration of Democratic supremacy in the State government has been an unbroken rule of peace and progress, and the author records with becoming pride these triumphs of popular rule.
“History,” said a great thinker, “is philosophy teaching by example.” The Old Alcalde does not content himself with a faithful narrative, but often probes for the philosophy of events. His style is plain and unpretending, without ornament, and without close adherence to the accepted canons of history-writing; but the sincerity of the author is reflected on every page; and, whether we agree with his conclusions or not, we are bound to recognize his impartiality, his patriotism, and his imperturbable common-sense.
In conclusion, the first thing noticeable about this work is its immense size—two royal octavo volumes, of nearly 1800 pages. Reduced to a 12mo in size of page, it would contain thirty volumes. The next thing to attract attention is the great variety of subjects treated. But the line of history is clear and unbroken through Yoakum and Roberts from 1685 to 1895. The size of the work is no disparagement, but rather a guaranty of extraordinary scope and comprehensiveness. The monographs, however seemingly diverse, are all germane to the text. It will be borne in mind that Justin Winsor constructed his Narrative and Critical History of North America on the same plan. This plan has its merits and demerits. It throws greater labor upon the editor to have the proper harmony, while it tends to secure better work on any special topic; and the rule, as I take it, holds good as to the excellence of the monographs in these volumes. Certainly it would be hard to find a more respectable array of well-known Texas writers than the contributors to the Comprehensive History.
A gem in typography and mechanical finish, this history is a vast picture gallery, with its hundreds of portraits, never before published, of famous men and women of Texas.
If a man were to be restricted to one book on Texas, I would advise him to get Scarff's “Comprehensive History,” as it makes, in itself, a good library on Texas. The citation of authorities at the proper places would have added much to the value of the work.
The editing of such a comprehensive work, with its many monographs, must have been an arduous task, requiring critical taste, mental equipoise, and thorough acquaintance with the subject in all its details, to say nothing of patient industry and common-sense. From the excellence of the editorial work apparent on its face, it may be inferred that Mr. Wooten, the editor, possessed all these qualifications in an eminent degree. Both editor and publisher are to be congratulated on the production of these volumes.
C. W. Raines.
NOTES AND FRAGMENTS.
Mr. W. R. Smith, who holds a fellowship in history for the year 1898-9 from Columbia University, will work on the colonial history of South Carolina. He expects to go to Columbia about the first of August, in order to begin work.
Mr. W. F. McCaleb, who was mentioned in The Quarterly for April as having been awarded a traveling fellowship by the University of Chicago, is now in Mexico. Mr. I. J. Cox, of the San Antonio Academy, will work with him during the summer. Their ultimate destination is the City of Mexico, where Mr. McCaleb expects to spend most of the year, but it is their intention to make stops more or less lengthy at other places in which there are archives of value for the history of the Southwest, especially at Chihuahua, Saltillo, and Querétaro. They are traveling on bicycles, and will doubtless learn much of Mexico as it is, as well as of Southwestern history, before their return to Texas.
Mr. L. G. Bugbee is spending his vacation at work in the Bexar archives at San Antonio. These archives include a very large amount of material for the history of Texas previous to the Revolution, of which but little use has hitherto been made. Perhaps The Quarterly will be able, before very much longer, to publish a sufficient description of them to show the nature and value of their contents.
Professor Garrison has announced as the subject of the graduate course in history in the State University for 1898-9, “The Texas Revolution.” It is his intention to spend the summer in gathering and classifying materials for this course. He hopes to work several weeks in the collection of Col. Guy M. Bryan, at Quintana, and the remainder of the vacation in the State library. Any one having in his possession unpublished material relative to this period of Texas history will confer a great favor upon Professor Garrison by informing him of the fact and describing the documents, and especially by giving him an opportunity to use and copy them. Official papers, diaries, private letters, and various other kinds of documents are all useful in historical investigation. The citizens of Texas are certainly much interested in determining the true history of the State. They ought, therefore, to give those who undertake this work in the University all possible help.
The readers of The Quarterly will be grieved to hear of the death of Miss Brownie Ponton, which occurred at Muscogee, Indian Territory, July 10. She was spending the summer with relatives, when she was stricken with illness, which, after about ten days, resulted in her death.
Miss Ponton had just completed her junior year at the University of Texas. She was an excellent student, and showed special aptness for historical investigation. The paper on Cabeça de Vaca's Wanderings in Texas, which was prepared by herself and Mr. Bates H. McFarland, working jointly, and was read at the last midwinter meeting of the Association, and published in The Quarterly for January, attracted much attention, and elicited favorable comment from a number of experts, together with a very inconsiderate and unjust sneer from one who seems to have the public confidence, but who must have misunderstood the real import of the article. She gave promise of becoming an elegant and forcible writer, as well as a successful investigator; but the pen has fallen from her grasp, and her work is done.
The collection of Ex-Governor Roberts, one of the most valuable relating to Texas history ever gathered, is bequeathed to the State University, in which he was so greatly interested, and for which he has done so much. The best part of his collection is in manuscript, and consists of a diary kept by the testator from 1858 to 1865, together with an extensive and carefully preserved correspondence with most of the men who have been prominent in Texas during the last sixty years. The Roberts Papers are a treasure, and will doubtless be treated as such by the University authorities.
The death, by an unfortunate accident, of Col. J. K. Holland, a few weeks since, takes from the State one of its prominent historical characters. He came to Texas during the early days of the Republic; was a member of the House of Representatives, and of the Senate, subsequent to annexation and previous to the Civil War; was on intimate terms with most of the well-known public men of the Republic and the State; and has been, in various ways, identified with the history of Texas through both periods. He took great interest in the Association, and it has been placed under obligations to him for many favors.
David Shelby.—The name given in Baker's Texas Scrap-Book, in the list of the “Old Three Hundred,” as David Shelly, should be David Shelby. It is correctly printed in the list given by Lester G. Bugbee in The Quarterly for October, 1897.
The Alleged Abandonment of Children at Plum Creek.—In justice to our comrades who have passed away, we beg leave, as three participants in the battle of Plum Creek, with the Indians, on the 12th day of August, 1840, to emphatically deny a report which has been circulated and published, to the effect that after the battle of Plum Creek, there were thrity-three children, whose parents were murdered in the Indian raid down the Guadalupe, left on the battle field and gathered up and taken to San Antonio by the Sisters of Charity of that place and raised and educated by them.
We regret exceedingly that this report has been circulated, as it is a reflection on the old Texans, and would be a blot on Texas' history.
A. J. Berry, Robert Hall, J. W. Darlington.
Concerning Saint-Denis.—The Mission San Juan Bautista, situated on the small stream called Costaños, about six miles west of the Rio Grande, and about twenty-five miles below Piedras Negras, now Ciudad Porfirio Diaz, was first founded in 1699, some distance from where it now stands; but, being abandoned by the tribes first settled there, it was re-established where it now stands in 1701. In the same year, the Conde Valladores made the place a presidio, with the name of Presidio de San Juan, Bautista putting there a small garrison of Spanish troops. And from that time it has maintained its existence in the same place, thought its name was changed by an act of the State Congress of May 18th, 1835, to Villa de Guerrero; yet it is generally known as Presidio Rio Grande.
The mission building, now the cathedral of the place, has been well preserved, and may still contain the early archives relating to the mission, including the marriage of Saint-Denis to the niece of Captain Ramon.
The accusation of Saint-Denis, his trial, acquittal, its approval by the Viceroy, and the revocation and his condemnation as a spy by the Consejo de Indias, and final sentence to imprisonment, with his wife, in Guatemala, may also be found in the Archivo General at Mexico.
The famous Acordada, where Arnuto Arroyo was killed on the night of the sixteenth of September last, after his attempt to assassinate Porfirio Diaz, is the same in which Saint-Denis was confined for some time, and his name may possibly be found on the roster, with a note of his sentence, and when he was taken away for Guatemala. This prison stands on the west side of the great square, south of the principal cathedral, commonly called el Zocalo, on account of the Aztec Zocalo standing there, and generally believed to be the place where human beings were formerly sacrificed to the Aztec god of war.
Much of the real facts of early Texas history may be found in the General Archive, among the various reports of the Spanish officers who were here in different capacities; but hitherto there has not been any considerable interest manifested in such sources of knowledge of the past of a country now reckoned among the greatest States of the American Union. Not even the chart of the Gulf Coast, from Cape Florida to Pánuco, made by two mariners, sent out by the King, in 1540, has been copied into the archives of Texas; and the cavalry expedition of Captain Sancho Caniegas, in 1528, from Pánuco to forty leagues north of the mouth of the Rio Grande, possibly to the point now known as Flour Bluff, has been overlooked by our historians, though the report of it has a place in the history of New Spain, as well as in the “Noticias Historicas de Nuño Guzman,” who was then governor of the Province of Pánuco.
The archives at Monclova, Saltillo, San Luis Potosi, and Mexico all contain data for Texas history worthy of a place in our records, to enable the future historian to brush away many blunders found in writings extant to-day; such as that Saint-Denis laid out the old San Antonio Road, and the story of the origin and first site of the Presidio “La Bahia del Espiritu Santo,” now standing on the right margin of the San Antonio River, and many others of like character.
A properly directed examination of the public archives of different places in Mexico, would furnish material for the works of writers of history never yet touched, and show much in its true light that has hitherto been but partially treated; and the advantages to be derived would richly compensate for the labor and money expended in making it.
Bethel Coopwood.
QUESTIONS AND ANSWERS.
Mound Prairie.—The Mound Prairie referred to by Yoakum and Thrall, and mentioned on page 307 of the April Quarterly of the Texas State Historical Association as being five and one-half miles west of Alto, was doubtless so designated because of the existence of two ancient Indian mounds on the old San Antonio road, two miles east of the Neches River, and formerly known as the Bradshaw place.
There is a locality which has been known, for at least sixty years, as Mound Prairie, which is situated some six miles northeast of the town of Palestine, in Anderson County, on the old Kickapoo road, and not ten miles west of Palestine, as stated by Mr. Dabney White.
John H. Reagan.
I should be glad to receive through The Quarterly, answers to the following queries: 1.
What is the date of an order of Philip II., cited by several writers on Texas history, forbidding any but Spanish ships to enter the Gulf of Mexico? How could this furnish a pretext for capturing La Salle's St. François, before she had reached the Gulf?
2.Besides the claim which La Salle made in 1682, to all Louisiana, did he make a second formal claim to the region around Ft. St. Louis? Neither Joutel nor Douay, so far as I have noticed, mention any second claim.
3.In the translation by French of the proclamation wherein La Salle takes possession of Louisiana, the Mississippi is called the “River Colbert, or Mississippi.” 35 Joliet, as quoted by Margry, calls it the “Colbert, ou Mississippi selon les sauvages.” Who gave it the name Colbert?
4.In the same document, La Salle mentions by name the tribes along the Mississippi, so far as he knows them; further on he uses the expression: “* * * upon the assurance which we have received from all these nations, that we are the first Europeans who have descended or ascended the said River Colbert.” French, in the History of the Discovery of the Mississippi River, says: “By reading the accounts of the Spanish adventurers, La Salle seems to have been the first to identify the great river of Marquette and Joliet with the great river of De Soto.” 36 If he knew of these early explorations, how could he, in good faith, say that the French were the first Europeans on the river?
5.What was the “Seignelay, or Illinois,” which La Salle mentions in his memoir to M. Seignelay, as a branch of the Colbert, by which he hopes to find his way to the South Sea?
6.When was the name Nuevas Filipenas first applied to Texas? How long was it used?
7.Did St. Denis leave the City of Mexico for San Juan Bautista, before the expedition for reoccupation started, or did he accompany young Ramon?
Elizabeth H. West.
John Rice Jones.—On page 307 of the last number of The Quarterly, Edmond J. P. Schmitt seeks information concerning the John Rice Jones who was Postmaster-General of Texas during, and immediately subsequent to, the Texas Revolution. Through the courtesy of James H. Jones, Esq., Austin, Texas, and of his daughter, Mrs. M. F. Lochridge, I have obtained information concerning the John Rice Jones who is here mentioned, and who was the father of James H. Jones, which enables me to answer as follows:
This John Rice Jones did live at Vincennes, Indiana, in the beginning of this century, but he was then only a boy, having been born at Kaskaskia in 1792. At that time his Christian name was only John, but some time after the death of an older half-brother, Rice, who was murdered by political and personal enemies at Kaskaskia in 1808, he added this more distinctive name to that which he already bore. 37 The John Rice Jones, however, to whom Mr. Schmitt refers as living at Vincennes early in this century, was, it may be inferred, not the subject of this note, but his father. The latter was very prominent in the early history of Indiana, and later of Missouri, where he was associated with Moses Austin in his mining ventures. He was a member of the first board of trustees of Vincennes University.
From a pamphlet by W. A. Burt Jones, reprinted from Vol. IV., Chicago Historical Society's Collections, and having for the title of one of its parts “John Rice Jones: a Brief Sketch of the Life and Public Career of the First Practicing Lawyer in Illinois,” 38 I quote the following (pp. 33-34) relative to the John Rice Jones inquired about:
“Gen. John Rice Jones, the eldest son, 39 served under Capt. Henry Dodge in the war of 1812, and removing to Texas, then a Mexican State, as early as 1831, he became identified with its struggles for independence; which gained, he became Postmaster-General under the three forms of the Republic, provisional, ad interim, and constitutional—proof enough of his ability and fidelity—in the cabinets of as many of its executives, namely, Governor Henry Smith and Presidents David G. Burnet and Mirabeau B. Lamar, respectively, and was a personal friend of and fellow-patriot with those men and their compeers, Hon. Stephen F. Austin, `the father of Texas,' and his dearest of friends; Gen. Sam Houston, Col. Wm. B. Travis, Col. James Bowie, Col. David Crockett, Col. Benjamin R. Milam, and many others whose memories are justly dear to the people of Texas, and whose names are as `familiar in their mouths as household words.' General Jones was one of the two executors of the will of the heroic Col. Travis, the other being ex-Governor Henry Smith.
“Locating in 1831 at San Felipe de Austin, he was one of the first settlers of that place, which, as Austin, is now the capital of the great `Lone Star State,' 40 and for years was one of its prosperous merchants. He died in Fayette County, Texas, on his plantation, `Fairland Farm,' in that eventful year in which the Republic he loved so well had so long and faithfully served ceased to exist on becoming a State of the American Union, 1845; and having married a daughter of Maj. James Hawkins, in Missouri, in 1818, he left a large and respectable family of children to cherish the memory and contemplate with just pride the record of a devoted father and a noble man.”
F. B. Wilkie, in a sketch of Geo. W. Jones, of Dubuque, Iowa, 41 published originally in the Chicago Times, and afterwards in the Iowa Historical Record, says 42 of the Texas John Rice Jones that “he was twice Postmaster-General of the Republic of Texas, and later United States Senator, serving in the same session with his brother, the subject of this sketch.”
This is clearly a mistake; Mr. Jones died in 1845, before Texas had a United States Senator.
George P. Garrison.
AFFAIRS OF THE ASSOCIATION.
Members of the Association have doubtless observed that no index to Volume I. of The Quarterly has yet been published. This is no oversight, and is much regretted by the Publication Committee. It is due simply to the fact that up to this time no satisfactory arrangement for indexing has been made. The index will, however, be printed and distributed as early as possible, and it would be well on this account for any one in possession of the volume to delay binding in the meantime. Those who understand the amount of work involved in attending to the publication of The Quarterly and other matter issued by the Association, and the demands upon the time of those responsible for it, together with the inadequacy of the Association's income to provide sufficient clerical help, will know how to excuse this annoying failure to bring out the index on time. The Committee is fully aware of the necessity for an index in this age when time is so precious to the investigator, and is resolved that the index for Volume II. shall go out with the last number of that volume.
In this number appear the reports of the treasurer and librarian. The necessary expenditure involved in organizing the Association has been considerable, and it will be possible hereafter to publish much more historical matter with the same income. It is hoped, however, that the available means of the Association will increase constantly. Not until it can begin the work of copying the public and ecclesiastical archives in Mexico can its members claim that it has fairly entered the field which it should cultivate. This can not be until the treasurer can show larger receipts.
The library has begun well and already has grown into a collection of no little value—of much greater, in fact, than the number of volumes and pamphlets would indicate. The gifts of rare materials for Texas history to the Association have been considerable, and a good deal more has been promised. The collection may be expected to show more rapid growth for the year just begun.
In the death of Ex-Governor Roberts, the Association has lost a faithful friend and supporter. Though his age prevented him from working as actively for it as some younger members, none showed a deeper interest in its welfare or was more desirous of serving it by all possible means. His last signature was affixed to the circular announcing the second annual meeting. He cherished fondly the hope of the perpetuation and success of the Association. Could he himself have named the way in which his friends might best show their respect for his memory, he would doubtless have suggested such action on their part as would secure the realization of this hope.
Among the more valuable recent gifts to the library of the Association are, a pamphlet by Ashbel Smith, entitled Reminiscences of the Texas Republic, 43 presented by Hon. Beauregard Bryan, of Brenham; MS. copies of the original report of Postmaster-General John Rice Jones, to the first Congress of the Republic, and several other official papers of the Postmaster-General, presented by James H. Jones, Esq., of Austin; a collection of MSS., including military correspondence during the first half of the year 1863, and general orders, issued mainly in April and May, 1865, by Gen. Wm. Steele, presented by his daughter, Miss Lily Steele, of San Antonio; a scrap book, with various old Texas newspaper clippings, presented by the widow of Col. J. K. Holland, of Austin; and an interesting old book, entitled Memorias de la insigne Academia Asnal, presented by Dr. M. B. Porter, of the State University.
The second annual meeting of the Association was held at the University building, Austin, June 16th and 17th. The meeting was opened with the address on the life and services of Ex-Governor Roberts, by Hon. Dudley G. Wooten, which appears in this number of The Quarterly, as do papers which were read by Ex-Gov. F. R. Lubbock, Dr. V. O. King, Judge John C. Townes, and Mrs. Dora Fowler Arthur. Professor Garrison read a paper on Rutersville College, by Mrs. Julia Lee Sinks: while others, on the old fort at Anahuac, by Mrs. Adèle B. Looscan; the Pease Administration, by Judge Z. T. Fulmore; and Enduring Laws of the Republic, by Judge C. W. Raines, were read by title. The paper by Mrs. Looscan is also to be found in this number.
At the meeting of the Council, the price of single numbers of The Quarterly was fixed at fifty cents, and Mr. L. G. Bugbee was elected business manager for 1898-99.
It was resolved to take steps towards securing recognition for the Association from the State. 44
Drawing for terms on the Council, in accordance with the constitution, took place, with the following results: Of the Fellows, Judge Z. T. Fulmore drew the term ending in 1900, Judge C. W. Raines that ending in 1899, and Ex-Gov. F. R. Lubbock that ending in 1898. The drawing for the members gave them respectively terms ending as follows: Capt. M. M. Kenney, in 1902; Mrs. Bride Neill Taylor, in 1901; Dr. Rufus C. Burleson, in 1900; Prof. R. L. Batts, in 1899; and Mrs. Dora Fowler Arthur, in 1898.
The following nominations were made for the year 1898-9: Dudley G. Wooten, President; Guy M. Bryan, First Vice President; William Corner, Second Vice President; Julia Lee Sinks, Third Vice President; F. R. Lubbock, Fourth Vice President; L. G. Bugbee, Corresponding Secretary and Treasurer.
About one hundred new members were recommended for election.
At the meeting of the Fellows, Judge Seth Shepard, of Washington, D. C., and Capt. M. M. Kenney and Prof. R. L. Batts, of Austin, were elected to membership in that body.
The Association, at its business meeting, elected the officers nominated by the Council, and filled the vacancies on the Council by electing Prof. R. L. Batts for the Fellowship term ending in 1901; Hon. Beauregard Bryan, of Brenham, for the membership term ending in 1903, and Mrs. Dora Fowler Arthur for the unexpired membership term of Prof. Batts, ending in 1899.
The Association has now completed the first year of its existence, and enters with a hopeful outlook upon the second. The results of the year's experience are highly encouraging. Historical interest has increased throughout Texas, the Association has attracted notice in almost every State in the Union, if not for what it is actually doing, at least for what it aims to do, and its membership now approximates five hundred. If it can secure, as it hopes, the proper recognition from the State, its future is assured.
Oran Milo Roberts
Chief Justice of Texas, 1864-66 and 1874-78
Governor of the State, 1878-82
Professor of Law in the University of Texas, 1883-92
President of the Texas State Historical Association, 1897-98
Born July 9, 1815
Died May 19, 1898
2. Hancock vs. Butler, 21 Texas, 804.
3. McCoy vs. State, 25 Texas, 33.
4. 22 Texas, 504.
5. 40 Texas, 647.
6. 49 Texas, 715.
7. Art. VII., Constitutive Acts of the Mexican Federation.
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.
29. These facts have been related in the family circle by the widow of Littleton Fowler, and by A. J. Fowler, the youngest brother of the Texas missionary, who once contributed the same to the Texas Christian (Methodist) Advocate.
30. Published at Cincinnati, 1826.
31. This is a reproduction of the text of Yoakum's History of Texas, with new notes.
32. This consists of “special chapters, embracing topics not adequately treated by Yoakum. * * *”
33. Consisting of “Supplemental Chapters, Covering New Matter.”
34. De Bow's Review, September, 1857.
35. Historical Collections of Louisiana, Part I., 49.
36. Historical Collections of Louisiana, Part IV., Preface, page XXXV.
37. This is the statement of Mr. James H. Jones, and Mrs. Lochridge.
38. This title refers to the father, not to the son, John, who afterwards called himself John Rice. The pamphlet, as well as that quoted further on, was furnished me by Mr. James H. Jones.
39. By the second wife.
40. This, of course, is a mistake caused by confusing San Felipe de Austin with the city of Austin.
41. Younger brother of John, or John Rice, Jr., himself quite prominent in ante-bellum Northwestern history. He died in 1897.
42. Iowa Historical Record, p. 434.
43. Originally read before the Galveston Historical Society, December 15, 1875. It deals mainly with the question of annexation, and gives much history that could hardly be found elsewhere.
44. This work will be in charge of a committee, to be announced later by the President of the Association.
How to cite:
"Issue View", Volume 002, Number 1, Southwestern Historical Quarterly Online. http://www.tsha.utexas.edu/publications/journals/shq/online/v002/n1/issue.html
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