Vol. II. OCTOBER, 1898. No. 2.
The Publication Committee disclaims responsibility for views expressed by contributors to the Quarterly.
[This is an unfinished paper, which Governor Roberts was preparing for The Quarterly at the time of his death.—G. P. G.]
While Texas was under Spain and Mexico, it can hardly be said to have had a seat of government within its territory. The Consultation of 1835, by which the first provisional government of Texas was organized, and which represented the different municipalities, met at San Felipe de Austin on the Brazos river. That continued to be the meeting place of the executive officers, i. e., the governor, lieutenant-governor, and the members of the executi council, of whom there was one for each municipality, until their powers ceased upon the meeting of the Convention, March 1, 1836. The most remarkable circumstance pertaining to this temporary government was the violent controversy between the governor and the executive council.
The Convention of 1836, which made the declaration of independence and organized the second provisional government with a president and cabinet, was held at Washington on the Brazos. There was no capital then established, nor did the executive officers remain at any one place during their term of service. They were for a time at Lynchburg and afterwards at Velasco.
In the fall of 1836 the Texas congress met at Columbia on the Brazos, and there held its first session with Gen. Sam Houston as president. During that session a law was passed making the city of Houston the seat of government of Texas from that time to the end of the session of congress that should be held in the year 1840. Gen. Stephen F. Austin, who was secretary of state under President Houston, died at Columbia, as it was said, from exposure in the discharge of his duty during the first session of congress.
At Houston a large frame house was built for a capitol, and when the seat of government was moved from that city the house became known as the Capitol Hotel. Now the ground is occupied by a large brick structure called by the same name. According to the constitution of 1836, which provided that the first president should serve two years, that the term should thereafter be three years, and that no one holding the office should be eligible to succeed himself, President Houston could not be his own immediate successor. Vice-President Mirabeau B. Lamar became the next president, and was inaugurated at the capitol in Houston in 1838.
In 1839 the Texas congress passed a law for the selection of a seat of government by five commissioners, two from east and three from west of the Trinity river. They were to purchase or have condemned for the State a tract of land upon which a capital city should be built. They were required under oath to keep their proceedings a profound secret and make their selection between the Trinity and Colorado rivers, north of the Old San Antonio Road or “King's Highway”, which ran near Crockett and Bastrop. The possibility of selecting Houston, which had been named for President Houston, and was understood to be favored by him, was thus excluded. That was perhaps one amongst other evidences that President Houston's influence did not prevail during Lamar's administration. The fact that the place selected was on the northeast side of Colorado river, being in what was then Bastrop county on the extreme frontier of the settlements of the State, suggests the inquiry as to what could have been the reason for it. It has been said that one reason was because the place was as nearly as was then practicable in the center of the State. That could hardly have been the controlling reason; for since then there have been two elections throughout the State to locate the seat of government, one in 1850, and one in 1872. In 1839 when the selection was made a majority of the inhabitants of Texas lived east and north of the Trinity river, from one hundred and fifty to four hundred miles from the place selected. If the circumstances attending the selection are examined into, it will be found that there were other reasons than the fact of the central position of the locality that determined the choice. For many years afterwards there was occasionally mentioned a report that Lamar while vice-president came with a party to this place on a hunt, that he early one morning shot and killed a buffalo in the narrow valley where Congress Avenue in the city of Austin is now situated, and that in taking a survey of the mountains and country around he said with poetic ardor to his comrades, “Here should be located the capital of Texas.” This may explain why some prominent men located certificates on these ridges and hollows near the river on the northeast side of it in preference to locating them upon the rich black plains in the neighborhood. It may also explain why the five commissioners in the public report of their proceedings spoke of no other place having been examined by them. In about twenty days they had all the steps taken for the condemnation of 5,004 acres of land, instead of purchasing from those who had located it, as the law permitted them to do. The commissioners were made aware of the parties and of the lands located by them as shown by their report 1. It is not reasonable to suppose that the selection could then have been made by a general vote of the people; this may be presumed from the subsequent efforts to remove the capital by election. Fortunately, however, the more extensively the State became settled up, the more appropriate became the location of the capital where Austin is now situated; and the building of the magnificent granite State house that has recently been erected may be taken as conclusive evidence of the general wish of the people that the seat of government shall remain permanently in this city.
There was a large frame structure built for the capitol on the ridge immediately west of Congress Avenue, where the City Hall now stands. The government offices having been removed, and Gen. Sam Houston having been again elected president of the Republic, he was inaugurated at the capitol in Austin in 1841.
In 1842 a large body of Mexican troops captured San Antonio and took many persons prisoners, including the officers of the district court then in session. The news of it soon reached Austin and produced great excitement. Preparations were shortly begun to remove the public archives, under the apprehension that Austin might also be attacked. President Houston and his cabinet left the city and went to Washington on the Brazos. He sought to have the archives removed to that place, which was resisted and prevented by the citizens of Austin and of the surrounding country. This affair has been called the Archive War. It involved no bloodshed, though much hard talk, but the archives were not removed from Austin.
The president convened congress at Washington on the Brazos in the fall of 1842. The sessions were held in cedar frame buildings that apparently had been erected for store houses. The capital remained there until July 4, 1845, when the Annexation Convention met in Austin, and the terms of the United States were agreed to and a new constitution adopted. From that time to the present, Austin has continued to be the seat of government of the State of Texas. It was in the building above mentioned west of Congress Avenue that President Anson Jones, on the 16th of February, 1846, surrendered the government of the Republic of Texas, to the executive officers and legislature of the State government, and the first governor of the State, J. Pinckney Henderson, was inaugurated.
A few years thereafter a more substantial building was erected for the capitol, near the center of the plat of ground of ten acres that had been set apart for a capitol building in laying off the city of Austin. This building was about one hundred feet long, fifty or sixty feet wide, and three stories in height, with broad stone steps at the south front reaching from the ground to the floor of the second story. The halls for the senate, the house of representatives, and the supreme court were situated on the third floor. The walls were built of hard limestone on the inside, and a soft yellow limestone on the outside that had been sawed in shape and smoothly planed. The same soft stone was used in building the Temporary Capitol in 1882 and may be seen on the outside of its walls. It was on the top of the high steps in front of the Capitol that Governor Houston delivered his inaugural address to the assembled audience seated on the steps below and standing in the yard around them, on the 21st day of December, 1859. In the Hall of Representatives in this house, on the 28th of January, 1861, met the Secession Convention, composed of 180 members, prominent citizens of Texas, who, by their acts, in conjunction with those of the legislature, withdrew the State from the Federal Union and made it a part of the Southern Confederacy. On the 9th of November, 1881, this capitol building was burned by accident during my administration as governor. The greatest loss was that of the State library and the collection of geological specimens in the building, and the use of that house while the new capitol was being erected. The burning was accidental, and was caused by a clerk having a stove put up in one of the rooms with the top of the stove-pipe inserted in a hole in a partition wall. He supposed the hole to be the entrance to a flue that extended up through the roof of the house; when in fact it had been made in the partition wall to pass a pipe through the adjoining room to a flue in the next wall. This adjoining room had in it a large pile of books and papers that were set on fire by the sparks from the stove. The partition being of wood, the fire ran up it to the ceiling above before it was discovered; and then it was found that the pressure in the hose was not sufficient to throw the water to the top of the burning wall, and consequently the building could not be saved. The room in which the fire started was a book and paper store-room, that was entered only to put in and take out books and papers, and therefore but few persons were aware of the fact that the hole in the partition wall did not enter a flue. This explanation is made to show that the burning was accidental, and that it could not be prevented when it was discovered.
Most of the record books and papers of the executive offices were removed from the house before the fire reached them. The county authorities kindly furnished the governor with offices in the court house, and the secretary of State with a room in the county jail, and other rooms were rented for the different executive officers and for the senate and house of representatives. The legislature was convened in special session April 6, 1882. A bill providing for the erection of a temporary capitol was soon passed, and was approved May 4, 1882. It authorized the capitol board, consisting of the governor, comptroller, treasurer, attorney-general, and commissioner of the general land office, to erect or rent a building for the purpose, and appropriated the materials of the buildings left on the capitol grounds and fifty thousand dollars to enable them to do it. The stone walls of the burned buildings, it may be remarked, had suffered little damage.
Finding that nothing suitable for their purpose could be rented, the commissioners determined to erect one large building to accommodate the government officials, and selected a place for it on Congress Avenue opposite the county court house. The site chosen is within the ten acre tract of land originally laid off for a capitol in surveying the city of Austin, as is also the ground upon which the court house stands. It was completed, and the executive offices were moved to it in time for the meeting of the legislature on the 9th of January, 1883, and soon afterwards Gov. John Ireland delivered his inaugural address in the representative hall of that building. According to the law mentioned above, it was to be used by the State officials until the completion of the new capitol, which was dedicated a few days after it was finished, on the 16th of May, 1888, during the administration of Gov. L. S. Ross.
There was a circumstance connected with the erection of the temporary capitol that deserves to be noticed. The walls had been completed, and the building had been covered with a blank roof for the shingles, when a very hard storm of wind and rain struck it, tore down the northwest corner nearly to the ground, and threw down parts of the north and west walls, which caused the roof to lean over to the northwest quite low. That took place at night, and the next morning the unfinished capitol was a bad looking sight. The capitol board selected three experienced builders to advise them what should be done to restore the building. The three met, examined the structure, and made their report in writing. They advised, in substance, that the whole of the north and west walls still left standing should be torn down and the foundation enlarged, and upon it thicker walls should be built. Then they immediately left for their homes. The board submitted the proposition to the contractor Mr. Smith, who refused to comply with it, because it would perhaps cause the other walls to fall, and because, even if it did not, he could not afford to do it under his contract. Thereupon the governor denounced the proposition as wholly unreasonable and impracticable, and others of the board joined him in the opinion. Colonel Myers, the designer of the new capitol, who was in the city, was employed to examine the building and report some plan by which the walls should be rebuilt without tearing down any part of them, and it was done according to his directions. This accounts for the iron girders in the walls of the house. They were put in for greater safety but are really unnecesary; for the house with its partitions and substantial walls is really a good building, in which was used the best material of the old capitol and other structures.
I find from a quaint document furnished me by Mrs. Chauncey Richardson 2 and written by Mr. John Rabb, one of the original projectors of Rutersville College, that in the summer of 1838 ten members of the Methodist church, living in the upper part of the district known as Austin's Colony, agreed to purchase a league of land for the purpose of locating thereon a settlement including a college, or at least a permanent academy. The same document says that “it was first suggested by Rev. Martin Ruter, one of the first missionaries that were sent to Texas, but his death soon after prevented his undertaking with his brethren the enterprise. The village was named for him by vote of the proprietors.” I give the names of six: “Robert Alexander, D. D., A. P. Manley, M. D., Mr. Robert Chappell, Mr. Franklin Lewis, Rev. William M— 3 of the Cumberland Presbyterian church, John Rabb.”
On the 23rd of September, 1838, a few of the above mentioned proprietors met, with Rev. John W. Kenney as their surveyor, and commenced to survey the village.
Rev. D. N. V. Sullivan taught the first school.
A clause in the deeds prohibited the sale of ardent spirits, and gambling.
In 1840, through the untiring efforts of Rev. Chauncey Richardson of the Methodist Episcopal church, a charter was obtained from the Texas government, and a donation of four leagues of land for the benefit of the college. The congress of Texas appointed Mr. Richardson president. He also acted as agent for the College and obtained by donation a large quantity of land. The institution was chartered with university privileges.
Through the kindness of Mr. E. W. Crawford of Rutersville, I have been furnished with the following statistics of the College for its establishment and first term:
TRUSTEES.
Rev. Chauncey Richardson, President.
John Rabb, Treasurer.
Hon. Andrew Rabb. Jonas Randall.
John H. King. Joseph Nail.
James S. Lester, Dr. A. P. Manly.
Wager S. Smith. Dr. W. P. Smith.
Thomas D. Fisher.
HONORARY TRUSTEES.
Hon. James Webb. William Menefee.
Francis Moore. G. W. Barnett.
R. Alexander. R. B. Jarmon.
FACULTY.
Chauncey Richardson, A. M., President.
Charles W. Thomas, A. B. Tutor.
Martha G. Richardson, Preceptress.
MEMBERS AND PATRONS OF THE COLLEGE.
Preparatory Department. 4
Alfred Alway. Duncan Murchison.
Sarah Alway, Rutersville. Hon. John Murchison, Fayette County.
C. L. Blair, Rutersville. Joseph Mendes, 5 Rutersville.
Francis Ayres. Edwin L. Moore, Rutersville.
Theodore Ayres. James J. Norton.
David Ayres, Center Hill. Dr. A. P. Manley, Rutersville.
Lionel Brown. William A. W. Nail.
Samuel Brown, Washington [County. Lewis M. Nail.
J. P. Bowles. P. M. Nail.
Henry S. Bowles. Quincy S. Nail.
E. Bowles. Clark B. Nail.
James H. Dennis. Joseph Nail, Rutersville.
William Evans. Z. P. M. Rabb.
Hon. Musgrove Evans. George W. Rabb.
Rufus Fisher. John W. Rabb.
Thomas D. Fisher, Rutersville. John Rabb, Rutersville.
Monroe Hill. Charles Randall.
Asa C. Hill. Jonas Randall, Rutersville.
John C. Hill. Enoch B. Simons
Asa Hill, Rutersville. Daniel Barrett.
Constantine Killough. Jordan Sweeny.
Mr. — Killough, Rutersville. Mr. — Sweeny, Matagorda County.
James Matson. James A. G. Smith.
Richard Matson. Dr. William P. Smith, Rutersville.
Captain Fuller, Washington. George C. Tennehill. 6
James L. Morrow. J. N. McD. Thompson. 7
John C. C. Moore. Alexander Thompson, Milam County. 8
Female Department.
Martha Ann Alway. Sarah A. Hill.
Celia Alway. Mary A. R. Hill.
Sarah Alway, Rutersville. Martha A. E. Hill.
Martha Davis. Asa Hill, Rutersville.
Rev. — Davis, Rutersville. Amanda Jarmon.
Mary A. Edwards. Col. R. B. Jarmon, Fayette County.
Dr. M. Barrier, Rutersville. Jane H. Kerr.
Isabella H. Fisher. William Kerr, Washington County.
Thomas D. Fisher, Rutersville. Mary J. A. Kerr.
Col. Lee Grey, Rutersville. George Kerr, Rutersville.
Indiana Grey. Eliza Moore.
Angelina H Gilbert. Lovick L. Moore, Washington County.
Abram Gilbert. A. M. F. Moore.
Mary H. Hall. Edwin L. Moore, Rutersville.
E. K. Hall, Columbia. Melissa C. Rabb.
Mary Jane Hayden, Rutersville. John Rabb, Rutersville.
N. Caroline T. King. Martha Reagan.
John A. King, Rutersville. Mr. — Reagan, Rutersville.
Elvira Nail. Mary A. Simons.
Joseph Nail, Rutersville. Daniel Barnett, Austin County.
Ann Sophia Richardson. Susan C. Thompson.
Rev. C. Richardson, Rutersville. Alexander Thompson, Milam County.
S. A. Hill. Clarissa M. Tennehill.
L. Elizabeth Hill. S. Ann Tennehill.
George Tennehill, 9 Rutersville.
Below I give the terms of admission to the classical course. They appear to me rather astonishing, I must confess; but it was probably not expected that the sons of pioneer Indian fighters should rise to the dignity of this course for many years to come. From the force of circumstances most of them would have to enter the Preparatory Department, and the requirements for entrance into the classical course were set before them only as a mark of a higher calling. Those admitted to this course were expected to know “the English Language, Davies' Arithmetic, Davies' Algebra as far as Quadratic Equations, Ancient and Modern Geography, Latin and Greek Grammar, Caesar's Commentaries, Cicero's Select Orations, the Georgies and Aeneid of Virgil, Jacob's Greek Reader, or St. John's Gospel in Greek.”
For the benefit of those who were unable to satisfy these requirements there existed the following provision: “Beginners in science and in literature will be admitted to the Preparatory Department, and also to the Female Department.” This was the opening for most of those who were to profit by the school and to obtain from it all the instruction they would perhaps ever get.
In the second term the names of Rev. C. W. Thomas, A. B., Professor of Ancient Languages and Mathematics, and Mr. Thomas Bell, Tutor, appear in the list of the faculty, and there is an advance from the sixty-three students enrolled during the first term to one hundred.
Among the papers transcribed from the records of the College and furnished me is the list of the donors to its endowment fund. Gifts of land are as follows:
The Texas Congress 17,776 acres.
Rutersville, for site of College 52 ``
Rutersville, for Female Department 24 ``
Then comes a list of donations obtained by the president subsequent to May 20, 1840, the aggregate being 24,516 acres.
In addition there is a list of subscriptions in par money, which I transcribe exactly as it was written.
Hon. Nathan Thomas, Member of Congress $50
S. S. B. Fields 50
Rev. D. R. Reid, Nov. 1840 25
A. W. Woolsey, due May 1841 200
P. H. Martin, Feb. 1841 50
Benjamin Phillips, Nov. 1840 25
H. Mathews, Jan. 1842 500
H. A. Adams, Jan. 1842 100
H. O. Campbell, June 1841 25
J. Campbell, June 1841 25
C. B. Shepherd, May 1841 20
James Cochran, May 1841 100
J. W. Harris, June 1841 25
L. W. Groce, June 1841 100
S. V. Samothe 50
Mr. Bracy, Sept. 1840 50
W. C. & A. H. Jones, June 1841 25
Oliver Jones, June 1841 25
J. W. Foster, June 1841 25
William Keesee, June 1841 25
John Grey, June 1841 25
N. W. Eastland, June 1841 40
W. Y. McFarland, Sept. 1841 25
S. Wright, Jan. 1842 25
J. L., Sept. 1841 20
H. Woodward 10
Wm. Menefee 100
M. Yanbudess, July 1841 10
W. P. Thorp, Oct. 1841 100
Wm. Price, Oct. 1841 50
J. G. Wilkinson, Oct. 1841 100
J. C. Bridgeman, Apr. 25
J. B. Alexander, Apr. 1841 25
F. W. Habert, Apr. 1841 50
James Stephens 25
J. W. Kenney, 1840 11
Then follows a list of subscriptions in par money, payable in five annual installments, the first falling due January 1, 1842:
Wm. R. Alexander $500
David Ayres 500
C. de Bland 500
James R. Isbell 500
John Rabb 500
R. S. McCormack 500
There is given also a list of donors to the College library:
Robert Martin, Nashville, Tenn 3 vols.
J. Shackleford, Courtland, Ala 5 ``
A. Kingly, Nashville, Tenn 35 ``
M. Eacham, Nashville, Tenn 10 ``
Mr. Watkins, Courtland, Ala 12
Mr. Tice, Tuscumbia, Ala 5 ``
H. A. Prout, Tuscumbia, Ala 9 ``
D. G. Burnet, Austin City, Texas 14 ``
Governor Polk, Tenn 10 ``
Mrs. Caldwell, Nashville, Tenn 2 ``
One donor, ``C. Richardson,'' gives to the College cabinet choice minerals and shells valued at $600.
However much it may have been denied by those concerned in bringing about at a later time the union of the Military Institute of Galveston with the College at Rutersville and the Monumental Committee of La Grange, the patronage and oversight of the Methodist Episcopal church shows itself throughout the early history of the College, and whatever success attended the beginnings of the institution was undoubtedly attributable to that energetic body. Of course, however, people of all denominations and of no denomination at all assisted; for it was one of the early efforts at honorable achievement in Fayette, in which all citizens of the county were interested.
The College was largely endowed with land, the gift of the State and of individuals, and there seemed never a fairer start for an educational venture. But, for want of patient waiting until time developed its resources, these very resources themselves melted away and left it too weak to become what it should have been—the alma mater of the youth of Fayette county—keeping at home the thousands that were eventually spent to build up distant schools. Even a nation in its beginnings can never take in at a glance the value of its own resources. This knowledge must be born of experience and nursed by patience and fortitude. Had the trustees at Rutersville College encouraged these virtues in themselves, better results would have been obtained; but they did not, and much was consumed in a day which would have furnished ample provision for a great and progressive future. Though such education as met the common needs of the people was given to many, very many, who would otherwise have been without it, and though its refining influence was scattered among many homes, brightening them by its presence, yet to pay the expense land was given in part; and though it was rated fairly as land was then going, the practice slowly but surely destroyed the hopes of the institution. What with the great scarcity of money, the Indian fighting, and the Mexican fighting, there came the idea that whatever was done must be done at once. This was the engrossing thought, and patience and the prospects of the College died together.
No doubt much of the land donated was given by the members of the Methodist Episcopal church, the activity of whose membership made it appear at first as if the institution were established in its interest.
For many years the College was under the control and supervision of Mr. William Halsey, Principal and Professor of Ancient and Modern Languages, assisted by Mr. Ulysses Chapman, A. M., Professor of Mathematics and Natural Science, Mrs. Mary Halsey being at the head of the Female Department. The commendation of Mr. Chapman in the quaint old document referred to at the outset is: “He is a regular classical scholar. He knows of no such words as `I can't do it.' He can lay down his books and do anything that any other man in our village can do.”
In 1856 Rutersville College was consolidated with the Military Institute, previously located at Galveston, and the “Monumental Committee” of La Grange, and it now becomes necessary to describe briefly the objects and organization of the last. The bill for its incorporation was approved January 19, 1850, and it begins as follows: “Be it enacted by the Legislature of Texas, that Albert L. Vail, George W. Sinks, John W. Dancy, Wm. J. Russell, Isaac B. McFarland, Thomas W. Cox, John T. Cox, Hamilton Ledbetter, D. G. Gregory, A. P. Manly, Wm. G. Webb, Wm. Menefee, Wm. P. Smith, Charles S. Longcope, R. B. Jarmon, and Joseph Shaw, be, and they are hereby constituted, a body politic and corporate, under the name and style of the `Monumental Committee.”' This committee was incorporated for the purpose of raising funds to build a monument to the decimated Mier prisoners and the Dawson soldiers. 13 To accomplish this, a paper was to be established, the proceeds of which, after paying expenses, were to go to the purpose. 14 Donations also were to be solicited. Among the contributors were R. B. Hudnal, ($5.00); Thomas Owen, Arley, Warwickshire, England, ($5.00); and John A. Green ($25.00).
It was an early thought to have a military school connected with this enterprise, but the monument was to be first erected. That, with the people, was something tangible, and those that contributed felt a sort of proprietorship in it. The military college was a dream that found its realization only in the failure of their own cherished idea. The feeling that afterwards swept the monumental fund from its proper and legitimate channel was based, no doubt, upon the original idea of a military school, but the end shows it was a mistake; for the monument was not raised, and the school proved ephemeral.
In 1856 an agreement was signed to lease to Col. C. G. Forshey the buildings and property of Rutersville College for the purpose of removing thither the Texas Military Institute from Galveston. It was further agreed that the board of trustees of the College should, if possible, obtain legislation ratifying the contract, consolidating the Institute with the College and the Monumental Committee, and repealing the provisions of the charter which gave the Methodist conference the privilege of supplying vacancies in the board. A new charter, obtained in August, accomplished the desired consolidation. But there resulted evident dissatisfaction in the minds of many, particularly the relatives of the dead whom the monument was to commemorate. They steadfastly refused to have the remains moved from the place where they were buried to Rutersville, 15 as contemplated, so that the monument, when built, should help to adorn that institution.
In defense of the change in the College, I find an article in “The True Issue,” (a paper that followed the “The Monument,” established to aid the monumental fund) of March 27, 1858, written by Captain C. S. Longcope, one of the trustees, “defending the permanency and proper conduct and successful management of the institution of Rutersville, known by the name of the Texas Monumental and Military Institute.” I find also a communication to The True Issue from William P. Smith, one of the original Monumental Committee, saying that he had added to the monumental fund two thousand dollars, 16 and being convinced that there should be a combination of utility with beauty, and having advised with several gentlemen, he had drawn up and presented to the legislature through Mr. J. L. Hill an amended charter differing from the old one in the following particulars:
1.For the name “Monumental Committee” it substituted “Monumental University.”
2.Instead of a committee of sixteen it required seventy, the major part composed of distinguished gentlemen residing in different sections of the State, out of whom a minority of seven, residing mostly in and about the town of La Grange, were to constitute a business quorum.
3.The funds under the management of this committee or board were to be appropriated for the purpose of erecting suitable buildings for the Texas Monumental University. The board was to have the privilege of educating in languages, science, and military tactics, indigent youths of the State, and especially the sons of the fallen heroes of the Texas Revolution.
This seems laudable, but the fact is that much had been subscribed by the relatives of the dead to whom the monument was to be erected, and the transfer without their consent appears like a breach of trust. It is singular, too, that one individual could exercise the right to draw up an amendment to the charter of a corporate body in which so many were joined and get it before the legislature without the concurrence of the others. This action was doubtless taken with the counsel and by the direction of the trustees, though it is not so stated; for those who thought the monument ought to be considered first had withdrawn, and had been replaced by those who were favorable to the change.
Aside from the disappointment caused by the diversion of the monument fund from its original purpose, the people felt very kindly towards Colonel Forshey and his faculty, with the exception of some members of the Methodist church who, remembering their former labors in behalf of the College, could not give up the idea that it of right ought to belong to their denomination. But investigations were made, and it was fully proved by the testimony of Rev. John Haynie, himself a Methodist, and of others, that, however much the progress of the institution, and almost its existence, in its early days, was due to the energy of Methodist ministers and the liberality and patronage of Methodist people, the church as an organization had no legal right to the property. The success of the reorganized school seemed quite satisfactory, and it really had a look of permanency. The great popularity of Colonel Forshey's two assistants, Colonel Timmons and Major Thornton, both men of genius, helped it no little. Colonel Forshey in his annual report in 1859 says: “The success we have had—and it has been unspeakably gratifying—has been in spite of hostility. We have without any organized or associated patronage advanced the Institute in a little more than three years from a private school with seven pupils to the dignity of a college with more collegiate students now than any institution in the State, and certainly more than any of the same age, and we have graduated a class of our own material on the spot where sixteen years' effort of the previous organization had never been able to arrange collegiate classes.”
Sixteen years of primary teaching had perhaps helped to prepare the way. Let us not despise the day of small things.
The short life of the reorganized institution was attributable in great measure to the war of Secession. Its students approaching graduation heard the shrill clarion with uplifted heads and prepared to depart. Though the last commencement address—or near the last—by the Hon. Ashbel Smith was eloquent for the Union, it fell on ears and hearts instinct with the desire for war, and its lesson bore no fruit.
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.
[In the preparation of this paper I have consulted the Journal of the Consultation, 1835, the Journal of the Convention, 1836, the Journals and Laws of the Congresses mentioned, and the archives in the Department of State, Austin.—C. W. R.]
The law for the present location of the seat of government in Texas is the first subject of the present paper; but before setting it out in full I shall enumerate, as a matter of interest, all the preceding capitals of American Texas with the circumstances which led to their selection as such.
Of the three departments into which Texas under the Mexican regime was divided, Bexar was practically all Mexican in race and sentiment; Nacogdoches had a large Mexican leaven; but Brazos was heart and head American. It was this department embracing Austin's colony that threw down the gauntlet of defiance to the usurping Santa Anna in 1835 and called for a consultation of all Texas at San Felipe de Austin.
The Brazos influence easily dominated the consultation, as Bexar failed to have any delegates therein, and it abolished the departmental system, making Texas a central republic, one and indivisible. Santa Anna was denounced for warring against the constitution of 1824, and a provisional government was established for Texas at large and San Felipe de Austin, the capital of Austin's colony, and the capital of the department of Brazos as well, became de facto et de jure the first capital of American Texas.
In despair of the Federal system in Mexico, the people of Texas through their representatives met in 1836, on the call of the provisional government, in Washington on the Brazos. Not a consultation was this, but a convention or constituent assembly in which all the powers of sovereignty were claimed and exercised in the declaration of independence and the formation of a constitution and the inauguration of a full corps of executive officers. After a stormy session of seventeen days beginning March 1, the Convention dissolved before the advance of Santa Anna's legions.
President Burnet for convenience selected for the seat of government Harrisburg on Buffalo Bayou, to which place he promptly repaired with the archives and part of his cabinet.
The deflection up the Brazos of the retreating Texan army left Harrisburg open to the enemy, and Santa Anna with 750 men made a dash on the capital. Arriving at 11 p. m. April 13th, the Mexican dictator learned that President Burnet and other officials had taken the archives and fled down the Bayou that afternoon in a steamboat. No official documents issued from the ephemeral capital, Harrisburg, save a few executive orders and proclamations.
It becomes difficult now to fix the exact situs of the Texan capital though the perambulations of the president may mark it with approximate correctness.
Despairing of Santa Anna's being arrested by a battle of Houston's fighting, Burnet with part of his cabinet abandoned the main land of Texas and taking refuge on Galveston island offered to share with the General the comforts of that sand-bank retreat if he deemed it still imprudent to give battle. But the long delayed fight for Texas as last came off at San Jacinto, effectually checkmating the further Mexican advance. Then the sovereignty of the Republic as represented in the person of the president was soon transferred from the sea-coast to the battlefield. Meanwhile the captive dictator by the arts of diplomacy retrieved in a measure the Mexican fortunes in effecting an arrangement with his conqueror for the unmolested retirement of the Mexican army across the Rio Grande. To this arrangement between Houston and Santa Anna President Burnet assented; and to fully consummate the proposed treaty the sovereign heads of Mexico and Texas hastened away on the historic steamer Yellowstone to Velasco, then the great seaport of the Republic.
In this capital (for the president and archives were here) was concluded and signed in person the agreement between Santa Anna and Burnet, known as the treaty of Velasco. The ill will towards the butcher of the Alamo and Goliad was so intense that his liberation under the provisions of the treaty was defeated by a popular commotion, which growing in virulence menaced the stability of the Texan government.
Wearied with the clamor of faction, President Burnet ordered in July the first general election under the constitution, and the officers elected met under his call in October at Columbia and organized the permanent government of the Republic.
Meanwhile the enterprising Messrs. Allen were laying out a new town called Houston at the head of navigation on Buffalo Bayon. What influences may have been brought to bear upon the government are not now known. It is certain, however, that the seat of government was, on December 15, 1836, ordered removed from Columbia on the Brazos to the town named in honor of the new President, where it was to remain from April 10, 1837, till the meeting of congress in 1840. And the president was authorized to cause to be erected the necessary buildings for the accommodation of the congress and of the different departments of the government at the place selected; provided the sum or sums so expended should not exceed $15,000. So the capital of Texas remained only about three months at Columbia, where the government of the Republic first went fully into operation.
The following account of the proceedings is given in the Senate Journal of the first Congress:
“The two houses in joint session in the Representative chamber proceeded to vote viva voce for the location of the seat of government.
Twenty-one being a majority of the whole number polled, the town of Houston was declared by the speaker of the house of representatives to be duly chosen as the place at which the two houses of congress had fixed the seat of government till 1840.
The congress met in the unfinished capitol building at the town of Houston on the 1st of May, 1837. It seems to have been thought that, because the law placed at the disposal of President Houston the sum of $15,000 for the needed public buildings, the government would erect its own capitol. On the contrary, a rental of $5,000 per annum was paid by the Republic to the Messrs. Allen for their building. Whether from this or from some other cause I do not know, opposition to the new capital soon began to show itself, and in a little more than a twelvemonth after there was a spirited contest for the honor temporarily conferred on Houston among Black's Place, Bastrop, San Felipe, Nacogdoches, Comanche, Mound League, and Eblin's League 31 as rival sites. The last was chosen by the second congress as the permanent seat of government for the Republic. The joint resolution to this effect perhaps fell through for want of the president's approval, as it does not appear among the printed laws of the Republic.
It was not until the session of the third congress that the question of a permanent capital was definitely settled. On the 19th of January, 1839, President Lamar approved the act herein described as one of the enduring laws of the Republic. It was entitled “An act for the permanent location of the seat of government,” and reads thus:
Section 1.Be it enacted by the Senate and House of Representatives of the Republic of Texas in Congress assembled:
That there shall be and are hereby created five commissioners, to be elected two by the Senate and three by the House of Representatives, whose duty shall be to select a site for the location of the seat of government, and that said site shall be selected at some point between the rivers Trinidad and Colorado and above the old San Antonio road.
Sec. 2.Be it further enacted, That the name of the said site shall be the City of Austin.
Sec. 3.Be it further enacted, That said commissioners or a majority of them be, and they are hereby required, to select not less than one nor more than four leagues of land for said site, and if the same cannot be obtained upon the public domain or by individual donation, then and in that case the said commissioners shall purchase the aforesaid quantity of land from any person or persons owning the same: Provided, that the price of the land so purchased shall not exceed three dollars per acre: And further provided, That not more than one league shall be purchased at such a price as three dollars per acre.
Should the site, however, be on individual property and the commissioners be unable to purchase it according to the authorized terms, they should proceed to acquire it under the law of condemnation as expressed in the act.
The salary of the commissioners while at work was to be eight dollars per day, but before beginning their labors they were to enter into bond with good security of one hundred thousand dollars each to be approved by the president, payable to him and his successors in office, conditioned on the faithful performance of the duties of their office, and take an oath to “faithfully and honestly” perform those duties.
Section 9 of the act required, “That immediately after the president receives the report of the commissioners, it shall be his duty to appoint an agent, whose duty it shall be to employ a surveyor at the expense of the government and have surveyed six hundred and forty acres of land on the site chosen by the commissioners into town lots under the direction of the president, which shall be by said agent advertised for sale for ninety days in all the public gazettes of the Republic, and also in the New Orleans Bulletin and Picayune, etc.
Section 12 made it the duty of the agent before the sale of said lots to set apart a sufficient number of the most eligible for a capitol, arsenal magazine, university, academy, churches, common schools, hospital, penitentiary, and for all other necessary public buildings and purposes. An act supplementary to the above and approved January 23, 1839, authorized the president to “have at the capital selected such buildings as he may deem necessary for the accommodation of the fourth annual congress of the Republic, together with the president and cabinet and other officers of the government,” and further made it the duty of the president, together with his cabinet officers, to proceed to the capital with the archives of the government previous to the first day of October, 1839. For the purposes of this supplemental act the sum of $20,000 was placed at the disposal of the president.
The commissioners selected by the Senate were A. C. Horton and I. W. Burton, and those selected by the House of Representatives were William Menefee, Isaac Campbell, and Louis Cooke. Edwin Waller was the surveyor. These gentlemen entered upon their duties with all convenient dispatch in the designated territory. According to their report 32 of April 1, 1839, to the president, the site of the hamlet of Waterloo, on the left bank of the Colorado, was selected as the proper place for the permanent seat of government, and a tract of land consisting of one league and two-thirds of a league and two labors, or about 7000 acres, was purchased at the maximum price of three dollars per acre.
The report is lengthy and somewhat verbose and grandiloquent in expression. The fertility of the soil, the beauty of the situation, the salubrity of the climate, and the grand mountain scenery are all noted by the enraptured commissioners, and, while stating that the chosen site for the capital is directly on the great trail of Mexicans and Indians from East Texas to Matamoras and at its, intersection with the main route for trade between the Gulf of Mexico and Santa Fe, they fail not to enlarge on the prospects of building upon this spot a great national city.
Later on, an area of one mile square extending from the river into the open prairie was surveyed by General Edwin Waller and laid out in lots for the prospective city of Austin, and the public buildings were erected on contract in due time. In October the president and cabinet approaching the new capital were welcomed by a crowd of citizens headed by Ed Burleson and Albert Sidney Johnston and escorted into the city. The distinguished officials were royally entertained at Bullock's Hotel, where were gathered the beauty and chivalry of the Republic. “The elegant dinner,” (we are told), “provided under the immediate supervision of Madame Bullock reflected great credit on that lady's taste and superior judgment, displayed in the arrangement of the table and the delicacies which graced the festive board.” 33
The fourth congress convened at the new capital on November 11, 1839.
The present city hall on the northeast corner of Eighth and Colorado streets, stands on the site of the first capitol building erected under contract for the Republic. It was a one-story frame structure of two large rooms separated by a wide corridor with offices in the rear for committees. From the gallery on the entire front of the building there was an unobstructed view to Congress Avenue, then, as now, the main throughfare of the city.
The Executive Mansion, where St. Mary's Academy now stands, was a neat two-story frame building painted white. It appears to have been the most stylish of the public buildings of the period; though occupied by only two presidents, for a short while by Lamar and for a still briefer period by Houston. The other government edifices were generally log cabins scattered along Congress Avenue.
With the succeeding administration came trouble to the town of Austin in an attempt of the seventh congress to remove the capital further back within the settlements. Disquieting rumors of a Mexican invasion perhaps causing this action against Austin, hastened, without doubt, the adjournment of congress. The Vasquez raid early in March, 1842, of seven hundred Mexican guerrillas on San Antonio furnished the pretext for executive interference. Under the clause of the constitution which provided for the removal of the archives from the seat of government in cases of emergency in time of war, the president issued his order of March 13 from Galveston for the return of the archives to the city of Houston for security. A few weeks after the more serious raid of Woll in September, the archives by executive order were sent off to Washington. Thus after divers and sundry dire perambulations on land and water over the Republic the archives first swelling and then sinking in volume, completed the circle in getting back to the capital so unceremoniously abandoned six years before.
The dreaded guerillas not taking San Antonio any more, the archives had no further cause for removal till annexation, and remained at Washington. In default of better accommodations here the houses of congress were forced to use the upper apartments of two grog-shops for their sessions during the closing days of the Republic.
As to the legality of the first removal of the archives from the seat of government, I will content myself with observing that the constitution warranted a removal in case of emergency; but it was not generally believed even then that the report of seven or eight hundred Mexican raiders in exciting fight eighty miles distant made the emergency contemplated. Nor is it my purpose to discuss in this paper the merits of the unseemly squabble over this removal between the archive committee and President Houston. However, it may be of interest to note that the discomfiture by the people at Austin of the military company sent out by the president to surreptitiously complete the removal of the archives, closed the forcible and unlawful efforts to change the seat of government.
But few even of those who justified the first removal of the archives would now defend the continued opposition of the two last presidents to the restoration to their proper place of custody at the legal capital.
Annexation, making ridiculous the further plea of the danger of Mexican raids, restored the lost prestige of Austin. The convention provided, in the constitution adopted, that Austin should remain the seat of government for the state till 1850, when the permanent capital should be determined by popular vote. In the election of that year to determine the question, Austin easily distanced all her competitors, receiving 7674 votes, while 1854 were cast for Palestine, 1143 for Tehuacana and a scattering vote for Washington, Huntsville, and other places. It required a majority of all the votes polled to elect, and Austin was chosen by about 1000 majority of the whole vote counted. The election, however, did not definitely settle the matter, as it was provided by law that the question should be submitted to the result of another election twenty years later. The State being at that time in the throes of reconstruction the question was not again submitted to the choice of the people till at the general election of 1872. The result showed for Houston, 35,188 votes; Waco, 12,776; and Austin, 63,297, or a clear majority of the whole vote. The city of Austin was accordingly declared to be, by popular choice twice expressed in a legal manner, the permanent seat of government of the State of Texas.
Since then there has been no serious attempt to disturb the verdict of the people on this matter now considered settled. Finally, the wisdom of the framers of the act in 1839 for the permanent location of the seat of government being so amply vindicated up to this time, the act itself is rightly classed among the enduring laws of the Republic.
On January 14, 1839, was approved by President Lamar “An act amending an act entitled an act adopting a National Seal and Standard for the Republic of Texas.” The original act approved in 1836 was but a substantial embodiment of President Burnet's order from Harrisburg prescribing the national standard. The substance of the act is in the subjoined portion:
Section 3. Be it further enacted that from and after the passage of this Act the national flag of Texas shall consist of a blue perpendicular stripe of the width of one-third of the whole length of the flag with a white star of five points in the center thereof; and two horizontal stripes of equal breadth, the upper stripe white, the lower red, of the length of two-thirds of the whole length of the flag; anything in the act to which this is an amendment to the contrary notwithstanding.
This is the present Lone Star Flag of Texas. Though coming after the triumphs of Bexar and San Jacinto, it sprang at once into great popularity. In all the subsequent battles of the Republic around Bexar and on the border from Santa Fe to Mier, the Lone Star Flag represented the sovereignty of Texas. It was not till February, 1846, that it was hauled down from the flag-staff of the old wooden capital of the Republic by Texan hands to give place to the Stars and Stripes. A flag though but a piece of bunting is an emblem of nationality; and the flag logically disappears with the death of a nation, as in the case of Poland, or with the blasted efforts for national life, as in the case of Hungary and of the Confederate States. The subsequent display of their defunct flags by those beaten communities might be a cause of offense to their conquerors.
Not so, however, with Texas. The demise of the Republic, or rather the merger of its sovereignty into that of the Union, was wholly voluntary; annexation itself being the joint act of two friendly sovereignties. Their flags never joined issue in battle. So the Lone Star Flag waving on stated occasion over the dome of our magnificent capitol, is no menace to the Union. This flag is simply a reminiscence, typifying the glories of the old Republic and the display of its bright folds in the sun never fails to awaken enthusiasm in all true Texans.
From the foregoing would it not follow that the law creating the flag became obsolete on the demise of the Republic? Perhaps so, technically speaking; but in a larger and better sense, the law had become functus officio, its object having been effected, and had become on the disappearance of the nation incapable of reform or repeal. Or transferred from perishing paper to the fleshly tablets of the heart, the law makes the Lone Star flag immortal, because the Texans will have it so. But aside from sentiment, does not the flag foster nationality? Undoubtedly, but as already remarked, as a cherished reminiscence only with but the innocent tendency to hold our territorial integrity inviolate.
And this in turn tends to settle the seat of government. It is inconceivable that the City of Austin, bearing the honored name of the father of the Texan colony, situate approximately to the center of territory and population of the State and possessing one of the costliest capitols in the Union could ever cease to be the seat of government of Texas; so long as the sentiment of nationality is unimpaired with the indivisible glories of Bexar and San Jacinto and the unspeakable sacrifices of the Alamo and Goliad alike indivisible.
Whatever may befall Texas, the Lone Star flag will forever live in song and story. To have devised such a flag was a greater honor to Oliver Jones, its author, than any other act of the long and useful life of this noble type of Austin's “Old Three Hundred.”
Of the permanence of the laws herein noted, no better reminder could be had than this flag floating over the capitol at Austin on the national holidays of the old Republic.
Official notes, entries, and reports made when the events occurred, being the lighted torch of actual observation and practical experience, enabling subsequent writers to correct or avoid popular errors, this article is intended to call attention to some Spanish data of this kind, with notice of the places where same may be found, without reflection upon anything heretofore written on the subject by authors of Texas history.
Under orders from Francisco Garay, then governor of Jamaica, in 1518-1519, Alonso Alvarez de Pineda ran the whole gulf coast from the southern cape of Florida to the mouth of the Pánuco river, and made a chart of it, showing thereon a bay he called “la Bahía del Espíritu Santo,” and noting some of the most prominent points in its surrounding topography; and it is probable that Pánfilo Narvaez had a copy of this chart when he sailed from Florida in 1527; for Alvar Nuñez Cabeça de Vaca says of the bay where he and Lope de Oviedo first heard of their three countrymen being with another tribe: “By what appeared to us from it and what we saw, it is the one called de Espíritu Santo,” showing that he knew already that there was a bay on that coast called by such a name.
In 1561, by virtue of a royal cedula, Angel de Villafanñe and Jorge Seron ran the same coast and made a descriptive chart of it, the original of which exists in the archives of Mexico. It also shows the same bay in about the same manner Pineda's does; and in view of it many consultations of the Consejo de Indias, information given by the viceroy and cedulas of the king were conceived in relation to the gulf coast.
Whether La Salle had copies of or extracts from these charts, which had been in the public archives of Spain and Mexico for over 120 years before he sailed for the mouth of the Mississippi, and knew its bearing from such sources, but was deceived by the effect of the gulf currents on his ships, of which he was ignorant, may not be certainly known now. But it is true he landed far to the westward of his aim; a circumstance having a direct connection with the history of la Bahía del Espíritu Santo.
Having landed and selected the site of his Fort St. Louis, La Salle sent out Jean Henrie to explore the country to the westward; and this man's experience and conduct form an important link in the chain of circumstances identifying Fort St. Louis with the “Presidio de la Bahía del Espíritu Santo.” After considerable exploration and the formation of an alliance with an Indian tribe, he was captured by Spanish scouts from Monclova and taken to Monterey and thence to the City of Mexico, and there made a detailed statement of all he knew of La Salle's expedition. And so minute was his description of the place where the French landed and of the site of the fort, that from the descriptive charts of the coast then in the archives, the viceroy readily determined it was on Espiritu Santo bay; and he immediately sent orders to Alonso de Leon, then governor of Coahuila, to march to Texas with what troops he already had and such as he could readily equip, to take from the French the lands they might have appropriated in the province and drive them out, or exterminate them, in order to secure the dominion and possession of New Spain in that region. And by means of such description de Leon was enabled to march directly to the French fort, where he arrived April 22, 1689, and found it already destroyed and the Frenchmen massacred, as he stated in his letter of May 16, 1689, to the viceroy, in which he asked for prisoners and permission to construct presidios to preserve the conquest of the country.
Some of the Frenchmen having escaped the massacre, obtained the compassion of a tribe of Indians near there, and were living with them when the Spaniards arrived. Two of these sought the protection of the Spaniards to get out from among the Indians, and were received with benevolence by Alonso de Leon and sent to the City of Mexico, where they gave the government detailed accounts of the sad events that happened to the French expedition in which they had figured.
With such sources of information, after having stood upon the ruins, de Leon certainly knew the site of Fort St. Louis, and there being no reason why he should misrepresent it, his report of its locality may be believed. His standing as an officer of the royal army and as the king's deputy in the province of Coahuila depended upon the truth of his statements in his report, and he cannot be presumed to have dealt in falsehood in regard to such matters.
The viceroy having granted the request of the letter of May 16, 1689, Alonso de Leon made another campaign to Texas in 1690 with 150 soldiers and a number of priests and other people to establish towns, presidios, and missions deemed convenient for the defense of the country and the conservation of the Spanish dominion therein. And among others founded, was the presidio and mission of la Bahía del Espíritu Santo upon the ruins of the French Fort St. Louis, which continued to be occupied until the French invasion caused the few colonists, priests, and converted Indians of this, as well as those of the other missions, to retreat to San Antonio de Bexar.
Then, under orders from the viceroy, the Marquis de San Miguel de Aguayo, who had succeeded Alonso de Leon as governor of Coahuila, with 500 cavalry and six pieces of artillery, marched against the invading Frenchmen, to drive them back to their ancient possessions and leave the limits well defined, so that they might be respected by the authorities of New Spain and those of Louisiana.
In Bexar, the priests and the families of citizens who had abandoned the frontiers, united with the expedition of the marquis.
After successfully marching to the borders of Red River without encountering any resistance from the French, the Marquis received a royal cedula containing, among other things, the following instructions: “That inasmuch as a treaty of peace had been agreed upon in the Spanish and French cabinets, the war against the Gallo-Americans should not be further prosecuted on the frontiers of Mobile; that he should only secure the recovery of the province of Texas, settle it in the best manner possible, and fortify it, especially at la Bahía del Espíritu Santo:” showing that the King of Spain then knew of the establishment of that name.
Under these instructions, the marquis withdrew his troops from their threatening position before the French, and engaged in the restoration of the presidios and missions they had demolished; and among others, he ordered to be fortified in the best manner then possible, the presidio of San Antonio de Bexar and that of la Bahía del Espíritu Santo; the latter, as he says, having been erected at the same place where Roberto de la Sala built the presidio of San Luis which had been been demolished by the Indians. So wherever La Salle's Fort St. Louis stood, there the presidio of la Bahía del Espíritu Santo was first founded; and if known events that followed identify the spot, the careful historian may point it out.
After Escandon was commissioned to carry on the conquest and settlement of Nuevo Santander, he sent a captain with soldiers and settlers to take possession of la Bahía del Espíritu Santo, claiming it as within his territory, and held it until ordered to remove his people to the south side of San Antonio river, then declared the boundary. Th