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.
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