Since the publication of part I. of this sketch Mr. L. G. Bugbee, of the School of History of the University of Texas, has kindly called my attention to Decree No. 136, of date September 1, 1830, of the laws and decrees of Coahuila and Texas, 17 which relates to trial by jury. The substance of this decree is as follows: The ayuntamiento in each district capital was to select yearly from among the citizens of the district from twenty-one to eighty-four jurors, who should possess the same qualifications as members of the ayuntamiento. The persons so selected were to be the jurors for one year. The preliminary examination of criminal offenses was to be conducted as heretofore by the primary courts of justice, but whenever the evidence introduced satisfied the primary judge that the crime was proved, he was to desist from further investigation of the case, and send the prisoner and the proceedings had before him, to some alcalde of the capital of the district. The proceedings were to be continued before this alcalde who should at once require the prisoner to choose his counsel, and immediately thereafter the trial should begin. The prisoner then selected from the list of jurors seven to sit in his case. The prosecution could make objection to two jurors, provided this was done within twenty-four hours after they were chosen. The places thus made vacant were to be filled by selection by the prisoner from the other jurors. The seven jurors were then to be notified by the alcalde and were to meet within four days and were to be sworn to try the case. From these jurors a secretary and a fiscal were to be selected. The fiscal thus selected was to make an examination of the proceedings up to that time and form a “recapitulation” thereof, and express his opinion as to the guilt or innocence of the prisoner. For this he was allowed eight days, and immediately thereafter the jury was to meet again publicly, and the proceedings and recapitulation were to be read in the presence of the prisoner and his counsel, and the record was to be delivered to them, and upon the 6th day after such delivery the jury was to reassemble and proceed with the investigation, having the right to examine the prisoner and his counsel. The case was then to be discussed by the jury until all of them signified that they were prepared to vote. Each juror was then to vote by ballot, signifying his judgment as to the guilt or innocence of the prisoner, and if he believed him guilty specifying the punishment to be inflicted. If a majority concurred in the innocence of the prisoner he was acquitted; if a majority concurred in his guilt and as to the punishment, he was adjudged guilty, and the punishment was fixed as specified in the ballots. If a majority found him guilty, but differed as to the punishment, the question of punishment was reconsidered until a majority should agree on it. If the prisoner were acquitted this ended the proceedings; if he were found guilty judgment could not be pronounced in that tribunal, but all the proceedings were passed to the first hall of the tribunal of justice, which was required to pass upon the question of punishment, and if the punishment as fixed by the jury was moderated or approved, judgment to that effect was rendered by that court, and from this no appeal could be taken. If, however, this tribunal should increase the punishment as fixed by the jury, an appeal lay to the second hall of the tribunal of justice. If this second appellate court concurred in the increase of the punishment this should be final. In case the punishment assessed were capital an appeal lay to the tribunal of justice, composed of all three halls of the supreme court.
This law had no application to civil cases, and is so essentially different from all common law ideas of juries in criminal cases that it emphasizes very greatly the predominant influence of civil law in our jurisprudence at that time.
We come now to the consideration of the subject matter of the second paper, that is, the modifications made by the Constitution and statutes of the state in the judicial system established by the Republic.
Were the question an open one it would be most interesting to investigate and ascertain from original data just when it was designed by the two governments interested, that the Republic of Texas should cease to exist and the state of Texas should come into being; but it is not open. The cases cited in the former article show that by the decision of the supreme court of the United States, subsequently acquiesced in by all the departments of the state government, “the admission of Texas into the Union took date from the 29 of December, 1845, the time of its admission by congress and the laws of the Union extended over it from that time.”
It does not, however, follow that the state government contemplated by the constitution of 1845 went into practical operation on that day. On the contrary, the constitution expressly provided that the existing government and its administration by the existing officers should continue until actual organization of the state government could be effected. The first state legislature assembled Feb. 16th, 1846, and on that day President Jones retired and Governor Henderson was inaugurated, and the judicial article of the constitution of 1845 became the basis of the Texas judicial system. The governor and the legislature at once proceeded to select the judges for the various courts, who were to be chosen in that manner.
The system thus established consisted of a supreme court, district courts, county courts, and justices' courts. The jurisdiction of these courts in some instances differed materially from that now exercised by tribunals of same designations.
The jurisdiction of the supreme court remained practically as under the Republic. It had appellate jurisdiction only, and was the court of last resort in all cases both civil and criminal.
The most radical change as to it was with reference to the judges composing the court. It was no longer to consist of a chief justice and several district judges sitting in bane, but of a chief justice and two associate justices appointed by the governor with approval of the senate, who had no official duties except as members of that tribunal. This change was necessary because of the increase in population and business. The interests of the state required a very considerable increase in the number of district judges and also longer service by them in discharge of their duties in their several districts. The number of cases was also increasing in the supreme court so as to necessitate more frequent and longer sessions by it. It was therefore impracticable for the same persons to fill positions on both courts.
The powers and jurisdiction of the district courts is fixed in section 10 of the judiciary article as follows:
The district court shall have original jurisdiction of all criminal cases, of all suits in behalf of the State to recover penalties, forfeitures, and escheats, and of all cases of divorce, and of all suits, complaints, and pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall be valued at, or amount to one hundred dollars, exclusive of interest; and the said courts, or judges thereof, shall have power to issue all writs necessary to enforce their own jurisdiction and to give them a general superintendence and control over inferior jurisdictions. And in the trial of all criminal cases, the jury trying the same shall find and assess the amount of punishment to be inflicted or fine imposed; except in capital cases, and where the punishment or fine imposed shall be specifically imposed by law.
In this section we find the first constitutional reference to any distinction between law and equity. Up to this time this peculiarity of the common law had been continuously ignored, except in section 12, act of February 5, 1840, heretofore quoted, and in that the recognition was partial and designed to regulate the exercise of both jurisdictions by the same court rather than to adopt and enforce the differences between the two.
This first constitutional reference to this distinction is not to adopt or perpetuate it, but to deny its existence and prevent any attempt at its recognition either by the legislature or courts of the state. A similar provision has been made in every constitution of the state since adopted.
As we have seen the common law of England was adopted as the general rule of decision in Texas by act of January 20, 1840, and continuously from that date the Texans have been an English speaking people having the common law as the basis of their jurisprudence, but yet denying the arbitrary distinction made by that system between law and equity and since 1845 have by constitutional provision forbidden the legislature to incorporate such distinction into its laws.. From January 20, 1840, to November, 1846, the date of the adoption by the State of New York of a new constitution abolishing this distinction it was the only government of which this was true.
The first legislature of the state of Texas made speedy and full provision for the organization of the judicial department of the government as contemplated by the constitution. On May 11, 1846; it adopted an act to organize the district courts and define their powers and jurisdictions. 18 Sections 2, 3, 4, and 7 of this act are as follows:
Sec. 2.Be it further enacted, That the judges of the district courts shall by virtue of their offices, be conservators of the peace, throughout the state, and the district courts shall have original jurisdiction of all criminal cases, of all suits in behalf of the state, to recover penalties, forfeitures and escheats, and of all suits against the State, which are or may be allowed by law, and shall have power to hear and determine all prosecutions in the name of the State, by indictment, information or presentment for treason, murder or other felonies, crimes and misdemeanors, committed within their respective jurisdictions, except such as may be exclusively cognizable before justices of the peace or other courts of the State, and shall, in criminal cases, have and exercise all the powers incident and belonging to courts of oyer and terminer, and general jail delivery; also of all suits for the recovery of land, of all cases of divorce and alimony, and of all suits, complaints and pleas whatever, without regard to any distinction whatever between law and equity, when the matter in controversy shall be valued at or amount to one hundred dollars or more, exclusive of interest, and generally to do and perform all other acts pertaining to courts of general jurisdiction.
Sec. 3.Be it further enacted, That the district courts shall have and exercise appellate jurisdiction and general control over such inferior tribunals as have been or may be established in each county, for appointing guardians, granting letters testamentary, and of administration for settling the accounts of executors, administrators and guardians, and for the transaction of business appeartaining to estates and original jurisdiction in probate matters, only in cases where the judge or clerk of probate is interested.
Sec. 4.Be it further enacted, That the judges of the district courts, and each of them, either in vacation or term time, shall have authority to grant on petition to them therefor, writs of habeas corpus, mandamus, injunction, sequestration, error and supersedeas, and all other remedial writs, known to the law, returnable according to law: provided, That no mandamus shall be granted on an ex parte hearing, and any peremtory mandamus granted without notice, shall be deemed void: And further provided, that all writs of mandamus, sued out against the heads of any of the departments or bureaux of government, shall be returnable before the district court of the county in which the seat of government may be.
Sec. 7.Be it further enacted, That the district judges, when the appropriate relief is prayed for, may grant all such orders, writs or other process necessary to obtain such relief, and may also, so frame the judgments of the court as to afford all the relief which may be required by the nature of the case, and which is granted by courts of law or equity.
Justices' courts were established and given jurisdiction in civil matters involving one hundred dollars or less, authority to try which was not conferred exclusively on the district court. These courts also had jurisdiction of a few misdemeanors mainly breaches of the peace and minor offenses against the person in which the punishment could not exceed a fine of $50. The power of the justices of the peace as committing magistrates was quite extensive. 19
A probate court, consisting of one judge, was established in each county, upon which was conferred all powers ordinarily exercised by courts of that class. 20
Under this constitution there was no county court with jurisdiction to try cases. A tribunal designated “the county court”, composed of one chief justice and four commissioners, was created in each county. Its jurisdiction extended to all matters of county business and finances. It had no power to try causes between individuals. 21
In the act organizing justices' courts (Sec. 20) the legislature declared that from final judgments of the justices' courts appeal should lie to the district courts; and in an act hereafter referred to, regulating practice in the latter, ample provision was made for the exercise of such appellate jurisdiction by them. Under the statutory enactments for several years appeals were actually taken from the justices' courts to the district courts and the cases were retained and tried there. In 1849, in the case of Titus v. Latimer 22 the point was made that as the district court was created by the constitution and its jurisdiction defined therein, the legislature had no power to change such jurisdiction, either by adding to or taking from; and, as appellate jurisdiction in cases from the justices' court was not given to the district court by the constitution, the statutes attempting to confer it were void. The court was divided in its opinion on the question, but the majority, Hemphill, C. J., and Lipscomb, A. J., sustained the point, Wheeler, A. J., dissenting. The opinion of the court was delivered by Judge Lipscomb. After stating the case, he says:
The importance of the question is sensibly felt and fully and frankly acknowledged; and it is a matter of serious regret that it should be suddenly sprung upon the court without the benefit of having it discussed at the bar. It is now nearly four years since the Legislature, at its first session, proceeded to organize Justices' Courts and define their jurisdiction, and, among other things, gave the right of appeal, as a matter of course, from their decisions to the District Courts. The same Legislature, at the same session, passed an act organizing the District Courts, and another regulating judicial proceedings in the District Courts. In the last, the manner in which appeals from justices of the peace are to be tried is defined and expressly provided for. In all the intervening time since those acts were passed they have been acted on and judicially recognized as valid without having ever before been questioned. If, however, they are repugnant to the constitution and could not give jurisdiction, neither the lapse of time nor the practice of the courts can vindicate the exercise of such jurisdiction.
Justices of the peace and other inferior tribunals are recognized by the Constitution; the extent of their jurisdiction, however, is left wholly to the Legislature. But the District Court and the Supreme Court, both as to their institution and jurisdiction, are essentially the creatures of the Constitution. On those courts the Legislature can neither confer or take away jurisdiction. If the jurisdiction given by the Constitution cannot be exercised because the mode has not been expressly provided for in the fundamental law of their creation, it would be competent for the Legislature to regulate the manner in which it should be exercised. But if the mode had been expressed contemporaneously, and by the same authority that created the jurisdiction, it would not be competent for the Legislature to direct a different mode. The Supreme Court is exclusively a court of appellate jurisdiction. The Constitution has conferred on it no original jurisdiction, nor can the Legislature confer any such, because it has been created by the Constitution an appellate tribunal only. The District Court is a court of original jurisdiction, and this original jurisdiction is not derived from nor dependent on the Legislature. All that can be done by the Legislature is to regulate the manner in which its jurisdiction shall be exercised. If the Constitution has not given it appellate powers it is not competent for the Legislature to do so. There is a very obvious distinction, to my mind, between controlling an inferior jurisdiction and the exercise of an appellate power: the former can be exerted to prevent action; the latter requires the act to be done before it can be appealed from. Hence, when the 10th section of the IVth article of the Constitution confers the powers on the District Court and the judges thereof to `issue all writs necessary to enforce their own jurisdiction and to give them a general superintendence and control over inferior jurisdictions,' it does not, from necessity or by reasonable inference, give them appellate jurisdiction. If it was intended to withhold general appellate jurisdiction, and not to give a control over inferior jurisdiction, it would have been difficult to have expressed that object in more appropriate terms than have been used. A control of the acts of those tribunals is expressly given by the issuance of writs very familiar to courts of general original jurisdiction. The writs of certiorari, mandamus, quo warranto, injunction and prohibition, would afford ready means of exercising control. Had it been intended that, in addition to the use of these writs, a general appellate jurisdiction should be exercised, it is certainly most probable that it would have been so expressed in the 10th section, as it is in the 15th section, in giving jurisdiction over the Probate Court.
Believing that the power to give jurisdiction by the act of the Legislature cannot be derived from the Constitution, there is no error in the decision of the court below in dismissing the appeal. Judgment affirmed.
Thus early in the history of our State were adopted and applied rules of strict construction of constitutional grants of power to the several courts created by organic law. These rules were most rigidly and consistently enforced in interpreting all our constitutions up to the amendments of 1891, and notwithstanding the evident intent to avoid them manifested in those amendments, their influence continues to be felt in some of the courts now existing.
The legislature at this first session also gave special attention to matters of practice in the courts, and passed an act, approved May 13, 1846, to regulate proceedings in the district courts, which comprised 158 sections, and covered the whole field of procedure in said courts, enumerating and repealing by name every former provision relating to practice in civil suits, but not repealing the act adopting the common law as to evidence and juries except so far as in conflict with it. 23
The requirements of this act as to pleading are as follows:
Sec. 3.Be it further enacted, That all civil suits in the district court shall be commenced by petition filed in the office of the district court.
Sec. 5.Be it further enacted, That the petition may be filed by the plaintiff or attorney and shall set forth clearly the names of the parties and their residences, if known, with a full and clear statement of the cause of action and such other allegations pertinent to the case as he may deem necessary to sustain the suit, and also a full statement of the nature of the relief requested of the court.
Sec. 29.Be it further enacted, That the defendant in his answer may plead as many several matters whether of law or fact as he shall think necessary for his defense and which may be pertinent to the case: provided, that he shall file them at the same time and in due order of pleading.
Sec. 32.Be it further enacted, That all pleas filed shall be taken up and disposed of by the court in due order of pleading under the direction of the court.
That the full force of this law may be appreciated it is well to consider the construction placed by our supreme court upon the prior acts of congress with reference to procedure, and particularly upon the words “petition and answer” as occurring therein. The case of Underwood v. Parrott 24 was an action brought in the district court, apparently before the adoption of the constitution of 1845, though the decision of the supreme court was not rendered until the December term 1847. In this case Judge Wheeler speaking for the court says:
The act of 1840, “to regulate proceedings in civil suits,” 4 Stat. 88, declares that, “the adoption of the common law shall not be so construed as to adopt the common law system of pleading but the proceedings in all civil suits shall, as heretofore, be conducted by petition and answer.”
This provision was evidently intended not to prescribe the rules, but to designate the system of pleading to be observed in our courts. The attention of the legislature was directed to the fact, that different systems of conducting the allegations of the parties prevailed in different countries and in different jurisdictions in the same country. They had adopted as the body of our municipal law the common law of England, but they were averse to the system of pleading observed in the forums of that country; and recurring to the fact that a different system prevailed here with which the courts and bar was supposed to be familiar; and which was supposed to be more simple and equitable, and better adapted than the English system to attain the true and ostensible object of all systems of pleading—a just decision upon the merits of the matter in controversy—they determined to retain the existing system. Hence the antithesis which the last member of the sentence presents to the first; the words “petition and answer” being used in opposition to “the common law system of pleading,” not to signify the stages of pleading to which these words give names, but to designate the system to which they belong. And, doubtless, to secure one uniform system of conducting the allegations of the parties, as well as to retain for that purpose the then existing system, they declare that the proceedings “in all civil suits”, whether they would have appertained to the common law or chancery jurisdiction in England, “shall as heretofore, be conducted by petition and answer.” These words then were not intended as a restriction or limitation of the pleadings to the answer, but as the designation of a system of pleadings—that being the subject present to the mind of the legislature, who were not treating of a declaration or plea, or of a petition or answer, but of the remedial systems in which those terms are employed, and which they describe; and they used them not to denote a prescribed formulary, but as indicative of their intention to retain the then existing system in opposition to the common law and chancery systems of pleadings in England. They retained the existing system without alteration, “to be conducted,” in their own language, “as heretofore.”
The inquiry then resolves itself into this: was a replication recognized by the laws anterior to the cited provision? By reference to the laws of the State of Coahuila and Texas, decree 277, sec. 6, art. 101, p. 266 of the laws and decrees, it will be found that the former laws upon the subject did permit the parties to employ the republica and duplica, answering to the replication and rejoinder of the English system; but to these they restricted the pleadings. And although the body of the former laws was repealed at the period of the adoption of the common law, 4 Stat. pp. 3, 4, yet the same legislature retained the system of pleading in opposition to that of the common law. Id. 88, sec. 1. That it is allowable, therefore, to carry the pleadings beyond the answer, I cannot doubt. In a case like the present, to reply the facts intended to be relied on in evidence to repel the defense disclosed by the answer, would seem most consonant to principle and convenient in practice. If the party must apprise the court orally of the facts intended to be relied on before he can insist upon the introduction of his evidence, why not put them in writing upon the record, not only for the information of the court, but to apprise the opposite party of the proofs he must be prepared to meet. This would seem more consistent with fairness and justice than to permit a party to assume mentally the basis of his proofs, and disguise and conceal them for the purpose of surprise and undue advantage. It would prevent confusion and embarrassment, surprise and injustice in the district courts, and would present the case in a far more intelligible form for revision here. It would disencumber the record of a mass of matter embodied in bills of exceptions and statements of facts; for it is only by these, in the absence of pleadings, that the matters arising subsequent to the answer can be presented here for revision.
At the same session of the supreme court, the case of Coles v. Kelsey was decided, Justice Lipscomb rendering the opinion. 25 In it he uses this language:
I do not believe, however, that on this subject we can with safety rely on common law rules of pleading, as our system of bringing suits by petition bears no analogy to the common law practice. But there is a most striking similarity in our forms to the English bill and answer in chancery, so much so as to leave no doubt of their kindred origin. They are both derived from the Roman law, out of which grew up the civil law, which now prevails all over continental Europe with various modifications; ours came to us through the laws of Spain. Judge Story says that equity pleadings were borrowed from the civil law, or from the canon law, which is a derivative from the civil law, or from both. Hence, at almost every step, we may now trace coincidences in the pleading and practice in a Roman suit. Story's Equity Pl., sec. 14. The same author, section 23, says “an original bill praying for relief is, as we have seen, founded upon some right claimed for wrong done by the defendant, in order to enable the court to understand the case, and to administer the proper remedial justice, as well as to apprise the opposite party of the nature of the claim and of the redress asked, and to enable him to make the proper defense thereto, it would seem indispensable that the bill should contain a clear and exact statement of all the material facts.”
This is a pretty accurate description of what a petition ought to embrace in our courts; in truth, to set aside a few set phrases, which are mere matter of form, there is no difference in their structure. There is, however, another reason that should recommend the chancery practice to our courts as rules of pleading in preference to that of the common law courts. It will be seen that the legislature has expressly directed that suits should be brought by petition, i.e., the act to regulate judicial proceedings in civil suits, section 1: `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.' (See Acts Congress 1840, p. 88.) Thus in express terms it continues the former practice that had grown up under the civil law. And the 4th article, judicial department, section 10, of the constitution of the state, in granting jurisdiction to the district courts, directs that `it is to be exercised without regard to any distinction between law and equity;' this mixed jurisdiction must doubtless still more assimilate our proceeding to the pleadings in chancery, as every cause of action must be asserted by the resort to the petition, to be modified to suit each particular case. I do not mean to be understood as maintaining that we have the chancery rules of pleading as a body, I only mean that they will be found more analagous to our system and more to be relied on, than those of the common law.
These cases show clearly that by “petition and answer” in the early laws of Texas is not meant the written instruments so familiar to the Texas practitioner under those names but a system of pleading, unique in its character, and without any exactly corresponding counterpart.
In the course of the many changes in our law—organic and statutory—this blended jurisdiction of law and equity in the same court and this system of pleading by petition and answer have remained unaltered.
The difference between this Texas method of procedure and the common law is too plain to need pointing out. The difference between this and the ordinary code system is also apparent. The Texas plan allows to both the parties and to the court the greatest latitude which is consistent with safety, and yet encourages the parties to make known to the court the very facts upon which they respectively rely, and puts a premium upon clear, concise and logical statement of these facts. It does not require the attorney for either party to determine in advance at the peril of his client whether his cause of action be technically legal or equitable, or in what form of action he shall proceed, or to select one issue upon which to risk the whole case; but permits him to present to the court every phase of the controversy and to ascertain whether or not, from any point of view, consistent with truth, his client is entitled to relief.
The constitution of 1845 was amended in 1850 so as to make the judicial officers elective; with this exception it remained unaltered until the convention of 1861, when it was modified so as to conform to the changed conditions arising from secession. As thus modified it constituted the state constitution during the existence of the Confederate government.
In 1866 another convention met in Austin and proposed certain amendments to the constitution, making it conform this time to the change growing out of the defeat of the Confederacy.
These amendments were voted on by the people on the fourth Monday in June, 1866, and were adopted, and the officers therein contemplated were elected and entered upon the discharge of their duties. The congress of the United States, however, refused to admit Texas into the Union under this constitution, and the government formed under it was dissolved and a reconstruction government instituted and maintained under acts of congress. By this power a convention was called to frame another constitution to be submitted to the people and then to the Federal congress. This convention met in Austin on June 1, 1868, and adjourned Feb. 6, 1869. The constitution passed by it in its “Election Declaration” provided for its submission to the people on the first Monday in July, 1869, but the powers at Washington did not concur in this date. The president by proclamation of date July 15, 1869, ordered its submission on Tuesday, November 30, 1869. The time was again changed by the military commander, and the election in fact took place on Nov. 30, and Dec. 1, 2, and 3, 1869. 26 The constitution was adopted, and, at the same time, the State officers and others contemplated therein were elected. The legislature met Feb. 25, 1870, and adopted the thirteenth, fourteenth, and fifteenth amendments to the constitution of the United States. By act of congress approved and taking effect March 30, 1870, Texas was restored to full fellowship in the United States.
The judicial system under this constitution was as follows:
Section 1. The Judicial power of this State shall be vested in one Supreme Court, in District Courts, and in such inferior courts and magistrates as may be created by this Constitution, or by the Legislature under its authority. The Legislature may establish criminal courts in the principal cities within the State, with such criminal jurisdiction, co-extensive with the limits of the county wherein such city may be situated, and under such regulations as may be prescribed by law; and the Judge thereof may preside over the courts of one or more cities, as the Legislature may direct.
The supreme court consisted of three judges and had appellate jurisdiction only. In civil cases, this was coextensive with the limits of the State. In criminal cases, no appeal was allowed to the court, unless one of the judges, upon inspection of the record, believed that some error of law had been committed in the trial. The district courts had all the jurisdiction now exercised by both district and county courts. The judges of the supreme and district courts were appointed by the governor.
At this period in our history it seems to have been a mooted question whether rendering jury service was to be looked upon as a right to be guaranteed to the citizen or a duty imposed on the juror in the interest of the public. The framers of this constitution inclined to the former view, at least as to certain classes of citizens and hence we find it ordaining in sec. 45, art. 12, that: “All the qualified voters of each county shall also be qualified jurors of such county.” As the constitution itself fixed qualifications of voters, the legislature, even if disposed, was powerless to prescribe any qualifications for jury service. Under conditions as then existing not much relief could be reasonably hoped from the legislature. In 1871 a law was passed with reference to juries which while doubtless not specifically so intended, was admirably adapted to placing incompetent and bad men in the jury box. The names of all the qualified voters in each county were to be placed on a list by the county court. No intelligent selection was to be made, nor indeed, any selection of any kind, but the name of every citizen possessing the constitutional qualifications as a voter was required to be entered on this list. Then each name so entered was to be written on a separate slip of paper and these slips placed in a box, and before the adjournment of each term of the district court, the grand and petit jurors for the next term were to be obtained from these by drawing from this box the slips of paper containing the name, each name so drawn being entered on the list. The lists so made were to be entered of record on the minutes of the court, thus giving every one immediate information as to who the jurors were. Clearly the leading idea of the law-makers in the enactment of this statute was to prevent discrimination against any citizen or class of citizens in the performance of jury service. The misfortune was that while it cut off opportunity for unjust and unlawful discrimination, it was equally effective in shutting off discrimination based upon just and lawful grounds. Under it not only were the names of the incompetent and corrupt men on the slips as likely to be selected as any others, but questions of moral character could not be considered at all unless the party had been convicted of a felony, and had thus disqualified himself from voting. The practical working of the law was bad, but no relief of any consequence came until the days of reconstruction were passed, and the adoption of the constitution of 1876 which, on this subject completely changed the above policy. The framers of this constitution instead of repeating section 45 as quoted above, substituted this mandate “the Legislature shall prescribe by law the qualifications of grand and petit jurors”. In August, 1876, assembled the first session of the legislature under that constitution. In obedience to this requirement it passed a jury law which was a marked improvement on its predecessors. The qualifications of a juror were specified. He was required to be a voter, a freeholder within the state, or a householder within the county, of sound mind and good moral character, must not have been convicted of a felony, must not be under a legal accusation of theft or felony, and in counties where voters were numerous, inability to read and write or previous service as a juror for a designated period within six months, before his selection, were made additional disqualifications. The act also provided for the selection by the district and county judges, respectively, of three properly qualified citizens of the county, residents in different portions, as jury commissioners. These persons were to be summoned before the judge immediately upon their appointment. They were sworn as officers and charged by the court as to their duty and were required to select only men who were known to them and who, upon careful consideration, were, in their judgment, qualified in character and intelligence to render efficient service as jurors. The lists of the parties selected were sealed up and delivered to the clerk in open court, oath was taken by the clerk and the commissioners not to divulge the names of the parties selected nor permit the opening of the lists until just before the beginning of the court. By these means each person who was to render jury service was passed upon by three disinterested men, selected by the judge, because of their special fitness, and the names of the persons so selected could not be ascertained until just before the service was to be rendered. Even a casual comparison of this law with that superseded by it shows the very great improvement made by it.
By joint resolution of June 4, 1873, an amendment to the judiciary articles of the constitution was submitted. This increased the number of supreme judges to five, and did away with the provisions denying the right of appeal in criminal cases unless some supreme judge should think an error of law had been committed. It was adopted on December 2, 1873.
This constitution and its amendments were in turn superseded by that under which the government is now being administered, known as the constitution of 1876. This was formulated by a convention which sat in 1875 and was submitted to the people and adopted on February 15, 1876, and by its own terms became operative on April 18, thereafter.
The judicial system created by this instrument (in its original form) comprised two courts of last resort, namely, the supreme court and court of appeals. The first consisted of three judges and had appellate jurisdiction of all civil cases tried in the district courts, but no jurisdiction in criminal cases or in appeals from the county court. The second consisted of three judges and had appellate jurisdiction in all appeals in all criminal cases from the district, and of all appeals from the county court, in both civil and criminal matters. There were four classes of courts of original jurisdiction, namely, district, county, county commissioners', and justices'. The jurisdiction of all of these was, in many respects, the same as the courts of the same designations under the present law.
This constitution made all judicial officers elective.
With the development of the State, and the growth of its population and business, the volume of litigation increased so much that it was found impossible for the supreme court to dispose of the cases brought before it. It was apparent that relief in some form must be provided for the unreasonable delay of justice, which in many cases amounted to a denial of all practical relief. Resort was had to a commission of appeals, consisting of three lawyers appointed by the governor, who were to sit as a commission, and to whom were to be referred causes pending before the supreme court, and civil cases pending in the court of appeals, in which the parties should agree to such transfer. The decision of these cases by the commission was to be final without examination or approval by the supreme court. The act creating this tribunal was approved July 9, 1879. 27
Serious questions were raised as to the constitutionality of this act, but the majority of the supreme court construed it as creating a board of arbitrators and not a court and sustained the law. 28 By its own terms this act was to expire in two years. The next session of the legislature offered an amendment to the judiciary article of the constitution, which, among other changes, proposed to increase the number of the supreme court to seven judges. The adoption of this amendment being doubtful, the legislature, by act of July 9, 1881, provided for a continuance of the commission, making, however, material changes in the law. The reference of cases was no longer confined to those agreed on by the parties, but the supreme court and the court of appeals were authorized to refer cases to it, without such consent; the power to finally determine cases was taken away and the decisions of the commissioners were required to be submitted to the supreme court and were not to be valid unless approved by it; so when adopted the opinions were to be published officially, and the judgments were to be rendered by the supreme court in conformity with the decisions. This act was also attacked as unconstitutional, but was again sustained; this time on the theory that, while the voluntary feature of the former law, upon which it had been sustained, was eliminated, yet the denial of the right of final determination of questions by the commission, and requiring all decisions to be approved by the supreme court, made the law valid. 29 The proposed amendment to the constitution was voted on in September, 1881, and defeated. The commission of appeals was continued from time to time until by act of April 8, 1891, two sections of three judges each, were created. It soon became apparent that it required a very large share of the time and attention of the supreme court to examine and pass upon the work of the two commissions and that the continuance of that policy by increasing the number of commissions would soon result in practically depriving the supreme court of any opportunity to consider and decide cases upon its own investigation. Some change seemed imperative. The legislature submitted amendments to the judiciary article of the constitution, which were voted on and adopted in September, 1891. These are the present constitutional provisions on this subject.
The changes wrought by these amendments are great. The present system consists of one supreme court, having civil jurisdiction only, and whose duty it is to revise decisions of the courts of civil appeals in enumerated classes of cases, and to hear a few classes of original suits against the heads of departments and State officers; a court of criminal appeals, having appellate jurisdiction of all criminal cases tried in the district and the country courts, but having no civil jurisdiction whatever; courts of civil appeals, having appellate jurisdiction of all cases tried in the district and county courts, and whose decisions in many classes of cases are final, and in others are subject to review and correction by the supreme court; district courts, having jurisdiction over the larger share of civil litigation of importance, and of criminal cases of the grade of felony, and of all suits and complaints, jurisdiction over which is not expressly conferred on some other tribunal; county courts, having jurisdiction of civil matters of less importance than those committed to the district court, and of all matters of probate, and of misdemeanor cases; justices' courts, having jurisdiction over all civil litigation involving less than two hundred dollars and not committed to some other court, and criminal jurisdiction of misdemeanors where the penalty does not exceed a fine of two hundred dollars; and a county commissioners' court, having jurisdiction over all county business matters.
The most material of these changes are: to deprive the supreme court of immediate jurisdiction in cases appealed from courts of original jurisdiction, and confine it to the hearing of designated kinds of cases coming from the courts of civil appeals, and to give to it original jurisdiction in certain kinds of cases against heads of departments of the State government, when the legislature should so provide; to create a court of last resort in criminal cases without any civil jurisdiction; to create courts of civil appeals, to which all appeals from district and county courts in civil cases lie; and to give to the district court original jurisdiction of all suits that are not within the expressed jurisdiction of some other court. Some of these changes, particularly the creation of the courts of civil appeals with final jurisdiction over so many cases, have been somewhat severely criticised, but in actual experience the plan seems to be working well. The courts have been enabled to decide cases submitted within a reasonable time thereafter, so that now it is practicable to bring suit and have it finally determined in time to insure beneficial results from the litigation for the party who shall prove successful.
Whatever may be its defects, its practical working is better than any plan heretofore adopted, and he who desires to change it, must come prepared with a substitute which gives promise of better results.
18. Laws of the First Legislature, 200.
19. Laws of the First Legislature, 298 et seq.
20. Laws of the First Legislature, 308 et seq.
21. Laws of the First Legislature, p. 333.
22. 5 Texas, 433.
23. Laws of the First Legislature, 363, Hartley's Digest.
24. 2 Texas, 178.
25. 2 Texas, 542.
26. 2 Pasch. Laws, note 1227.
27. Acts of the Special Session, Sixteenth Legislature, p. 30.
28. Henderson v. Beaton, 52 Texas, 29.
29. Stone v. Brown, 54 Texas, 330.
How to cite:
Townes, John C., "SKETCH OF THE DEVELOPMENT OF THE JUDICIAL SYSTEM OF TEXAS. II ", Volume 002, Number 2, Southwestern Historical Quarterly Online, Page 134 - 151. http://www.tsha.utexas.edu/publications/journals/shq/online/v002/n2/article_3.html
[Accessed Mon Dec 1 18:36:10 CST 2008]
