Vol. XIV. OCTOBER, 1910. No. 2.
The publication committee and the editors disclaim responsibility for views expressed by contributors to The Quarterly.
Although General Lee surrendered early in April, 1865, the break-up of the Confederacy did not occur in Texas until the end of May. Disorganization of all authority followed, and in the general confusion confederate and state property was appropriated by disbanded soldiers and even the state treasury at Austin was looted. The loss of property, however, was small and the disorder little when viewed against the background of bitter disappointment and uncertainty of the future which the people of the state felt on account of the downfall of the Confederacy.
The arrival at Galveston on the nineteenth of June of General Gordon Granger initiated the first provisional government—a mongrel of civil and military rule, but predominantly military. A. J. Hamilton, who had been appointed on June 17 provisional governor of Texas by President Johnson arrived at Galveston on July 21, and proceeded soon to Austin to take office. After some delay a registration of those citizens of the state who would take the oath of amnesty was made and an election of delegates to a constitutional convention was ordered. The convention met in Austin on February 7, 1866, and was in session eight weeks. In the election that followed the conservative ticket, or that endorsing President Johnson's policy for the restoration of the state governments, headed by J. W. Throckmorton, was successful, and the amendments to the constitution were adopted. The newly elected government took possession on August 13, 1866, and on August 20 President Johnson declared by proclamation that the insurrection in Texas was at an end. The restoration to a normal state of civil government that was being made and the amelioration of general conditions that was taking place were terminated, however, by the reversal by Congress of President Johnson's policy. Under the provisions of the so-called Reconstruction Acts, passed in March and July of 1867, Texas became a part of the Fifth Military District, and went again under a provisional form of government which lasted from August 8, 1867, to January, 1870. Again, also, the process of emergence from the provisional form was gone through with, and another constitution was adopted and another election of state officials was held. E. J. Davis was the new governor-elect, and his administration, which is known as the period of radical rule, lasted three full years. It was undermined by the election of a democratic legislature,—the famous thirteenth,—in November, 1872, and fell and was swept away by the election in December, 1873, and the inauguration on January 15, 1874, of Richard Coke as governor.
Although the Reconstruction as a political condition ended at the close of 1873, and though the financial policy came under the control of new hands at the beginning of that year, the finances of the state were slow in recovering from the effects of the war and radical rule, and it was nearly a decade before a normal condition was again reached. The period treated in this study, however, extends from the close of the war through August 31, 1874.
The character and movement of expenditures are exhibited in Appendix A (page 110). The table there presented shows only the amount of warrants drawn during each fiscal year; and, owing to a continued treasury deficit, in only one year, 1868, are the amount of cash paid out of the treasury and the amount of warrants drawn the same. However, as the warrants drawn were demands upon the treasury which were eventually met, the table represents the policy pursued with respect to expenditures.
The cost of administering the state government was fluctuating but on the whole showed an upward tendency until 1870, and after that year took a violent rise. The multiplication of state employees and especially the increase in salaries and contingent expenses worked to swell the cost of running the several departments. The constitution of 1866 extended the term of office of the governor to four years and provided for a salary of $4000, which was an increase of $1000 over the former figure. This was further increased in 1870 to $5000. The secretary of state, the treasurer, and the comptroller each received annual salaries of $1800, and the commissioner of the general land office, $2000, until 1866, when all were increased to $2500, and in 1870 they were further increased to $3000. Chief clerks after 1870 received $1400 to $1600. By the constitution of 1866 the number of judges of the supreme court was enlarged from three to five, and the minimum salary raised from $3000 to $4500. The minimum salary of district judges also was raised from $2250 to $3500. These substantial increases in salaries were ill-timed and were beyond the ability of the tax-paying public. The claim for an increase on account of high prices was stronger during the war, but neither the general price level nor the opportunities in private life at this time warranted the increases provided.
Occasions of large annual expenditures were the sessions of the legislature, and to this cost of law-making may be added that on account of the constitutional conventions. Legislative sessions were frequent and long and were taken up largely with private legislation which could have been avoided to a great extent by a general corporation law. 1 The legislature, however, was not extravagant in the matter of outlays on itself either to the same degree or in the same fashion that characterized other southern legislatures of this period. Expensive chamber furniture and other furnishings, and champagne and cigars to enable committees to endure better their arduous labor do not shame Texas legislative annals as they do those of states which, like South Carolina, were ridden by carpet-baggers. There were, though, improper expenditures which were cloaked under the blanket appropriation for contingent expenses; pet partisan newspapers were generously subscribed for; and the mileage and per diem provided were unprecedentedly liberal. 2
While the state departments and the legislature claim a part of the growth of expenditures after 1870, the bulk of the growth is ascribable to other objects. The cost of the judiciary more than doubled, but the organization of new courts and the activity of the state's prosecuting agents account largely for this. The increase in fee payments to sheriffs and prosecuting attorneys was marked, but the fee system was no more abused at this time than under later administrations. After 1871 disbursements from the available school fund took a leading place among the state's expenditures. The use of the assets of the school fund during the war and the failure, due chiefly to inability, to make restoration or reparation to that fund resulted in a suspension of its functions until their revival by the act of 1871. There was expended out of this fund during 1872, 1873, and 1874, $1,489,675, as against $37,885 from 1865 through 1871. Beginning in 1871 the protection of the frontier settlements against marauding Indians and Mexicans called for large annual outlays. The need of protection became manifest immediately after the war, and failure of the federal government to extend it forced the state to perform the duty. Despite expenditures during the four years, 1871-1874, of $524,963, the protection extended was held to be inadequate. 3 The expenditures on this account were subsequently refunded to the state by the national government, but not during the period of the Reconstruction. In 1888, $922,541.52 was refunded; in 1891, $148,615.97. These amounts were refunded under the act of Congress of June 27, 1882, and reimbursed the state for all expenditures of this character between 1866 and 1882. Expenditures for the asylums, especially for the insane, increased during this period, but no exception can be taken to the better provision for the unfortunate wards of the State. There appears to have been some jobbery, however, in connection with the purchase of supplies for the asylums and the repairs of public buildings. 4 Except in 1869, when a large amount was expended for support, the penitentiary was not an expensive institution. The expediency of leasing it and the labor of the convicts was suggested in 1868 and was carried out in 1871. Thereafter the only expense of the state in connection with it was for the transportation of prisoners.
Perhaps the most obnoxious of the measures of the E. J. Davis administration was that providing for a system of state police. Warrants drawn on account of the state police and the state militia,—almost wholly, however, for the police,—amounted during the period 1871-1874 to $688,091, or 15 per cent of the total of warrants drawn on the general revenue fund. The personnel of the police body, their abuse of authority, and the fact that they performed functions which belonged to the local governments, led to the abolition of the system by the democratic legislature in 1871. 5
Texas narrowly escaped during this period the subsidizing of railroads with bonds,—a policy that characterized a number of southern reconstruction governments and which resulted in grievous financial burdens to the states. The constitution of 1866 empowered the legislature to guarantee the bonds of railroad companies to any amount not exceeding the sum of $15,000 per mile. No resort was made to this provision because the constitution of 1866 was short lived, and the provision was believed to be in conflict with section 33 of the constitution, which prohibited the legislature from contracting a debt to exceed $100,000, except in case of war, to repel invasion, or suppress insurrection. 6 The constitution of 1869 shut out land grants to any but actual settlers, but permitted bond subsidies to internal improvements. By the act of August 5, 1870, incorporating the International Railroad Company, a subsidy in 8 per cent, thirty-year bonds of $10,000 a mile, was granted, and an ad valorem tax upon all taxable property sufficient to pay the interest and contribute to a 2 per cent sinking fund was authorized. The state pledged itself in this act that its bond subsidies to works of internal improvement should not exceed $12,000,000. 7 An act carrying a subsidy of $6,000,000 in 8 per cent, thirty-year bonds to a road that should cross the state from east to west and reach the Pacific Ocean was opposed by the governor, and it was only when the bill had passed the legislature after two vetoes that he withdrew his opposition. 8 A bill that proposed to subsidize the East Line and Red River Railroad Company with 7 per cent bonds to the amount of $30,000 a mile was effectively vetoed. 9 It was provided in the act chartering and subsidizing the Pacific road that when the state should have power under the constitution to grant lands in aid of internal improvements, a land grant should be substituted for the bond subsidy, and this substitution was made in 1873, following the adoption of an amendment to the constitution authorizing land donations. Bonds for the subsidy to the International road were signed by the governor, but when presented to the comptroller to be countersigned and registered, that officer refused. The company thereupon brought suit to compel the signature of the comptroller, but the supreme court of the state reversed the judgment of the district court awarding a peremptory mandamus and dismissed the case on the ground that the judicial department of the government had no authority to interfere with the executive department in the performance of duties not ministerial in character. 10 Unblushing bribery was charged in connection with the passage of this International subsidy, and though the jury of a district court found the allegation of fraud to be untrue, the charges were so rife and upon such high authority as to give them credence. 11 It was a cause of wonder at the time that members of the twelfth legislature whose income was their per diem should at the end of the session be able to buy fine horses and furniture and to travel north. 12
Except for the increase in salaries under the Throckmorton government and the wastefulness of the constitutional convention of 1868, the expenditures to 1870 were not excessive. This is not true, however, for the period of the Reconstruction thereafter. Expenditures then were beyond the ability of the state, and the best evidence thereof is that despite heavy taxation, bonds were sold to pay current expenses and a large floating debt was accumulated. The twelfth legislature exhibited a degree of profligacy and of open disregard of the state's economic condition that clinches it in the niche of notoriety that it holds in Texas legislative history. Matters might have been worse, though, and that they were not so was due mainly to the integrity of the governor in the administration of the public finances. 13
The chief source of receipts during this period was taxation, and the main tax was, as in previous periods, the ad valorem tax upon real and personal property. The work of assessment and collection was performed until 1870 by an assessor and collector, but thereafter assessment was by the justices of the peace, and collection by the sheriff of each county. Under the provisional governments assessment and collection were subject to special difficulties. The war had disorganized the machinery of administration, and in many of the counties it was impossible, owing to the opposition of the people to military authority, to secure an assessor and collector. In 1868, for example, thirty-nine counties out of one hundred and twenty-five had vacancies in the office. It was not infrequent, too, that those who qualified were inexperienced, inefficient, or corrupt. 15 Despite these difficulties, however, receipts from taxes before 1870 were, proportionately to the rate and the total assessments, more satisfactory than after 1870. This better showing was due, in the first place, to the more rigid collection under the military authorities, and, in the second place, to less burdensome rates. A number of circumstances contributed to the disarrangement of the tax system during this period, however. The escape and undervaluation of real estate was favored by the provision of the laws which permitted its rendition either in the county of its situs or in the county of residence of the owner or agent. Furthermore, the failure to get tax titles sustained by the courts because of the seeming impossibility for assessors and collectors to comply strictly with all the details of the laws regarding sale for taxes, robbed legal coercion of payment of its terrors. 16 Further, the tax year ended December 1, which resulted in the collection of taxes during the summer or fall, or the seasons of greatest scarcity of money for the farmers. 17 Back taxes piled up as a consequence of these circumstances, and strenuous efforts were made to collect them. The act of November 12, 1866, required the compilation of a list of all lands on which taxes were due from 1849 to 1866, and provided for their sale. In 1865 and 1866, 791,000 acres, and in 1867 and 1868 the unprecedented number of 7,800,000 acres, were sold to the state for unpaid taxes. 18 This act was later nullified, and the attempt was again made in 1870 to collect back taxes, but failed because of the governor's veto of the appropriation to carry it out. 19 Subsequent attempts were of the nature of commutation for all unpaid amounts by payment of three or five times the amount of the current taxes.
The feature of taxation under radical rule and the circumstance which more than any other explains the ill-working of the tax system is that state and local taxes together constituted too great a burden. In 1865, the state ad valorem rate was 12½ cents on the $100 valuation; in 1866 and 1867, 20 cents; in 1868, 1869, and 1870, 15 cents; in 1871, 1872, 1873 and 1874, 50 cents. In 1868, there was in addition to the regular tax of 15 cents, a special tax of 20 cents to pay the expenses of the constitutional convention. In 1868, the state and county ad valorem taxes amounted in Bexar county, for example, to $1.10 on the $100 valuation, and in 1870, to $1.12½. Besides these there were state and county income, salary, poll, and occupation taxes, and city taxes. 20 In 1871, combined state and county ad valorem rates amounted at a conservative estimate to $2.175, and there were besides the state and county poll and occupation taxes, and city taxes. 21 In 1869, collected state and local taxes of all kinds aggregated $1,129,577; in 1872, assessed state and county ad valorem and occupation taxes and local taxes for public schools amounted to $4,584,275. 22 All of our statistics indicate an increase in taxation that was enormous. Assuming 10 per cent as a low average rate of interest on loanable capital, state and county taxes of $2.17 would be equivalent to an income tax of 21 per cent. No government would dare to levy an income tax at such a figure, and it should be no surprise that the imposition of this rate indirectly through the property tax occasioned bitter complaint and led to the undervaluation and escape of property. Conventions of tax-payers were held in a number of counties, and as a culminating protest a convention of the tax-payers of the state was held in Austin on September 22, 23 and 25, 1871, with two hundred and seventeen delegates present representing ninety-four counties. 23 This convention was called by the radicals, “a body of sulks and soreheads,” but these epithets ill apply to ex-Governors Throckmorton, Pease and Hamilton and to the other leading men who were delegates. 24
In estimating the weight of taxation upon the people of the state during this period certain federal taxes need to be considered. The sum of the direct tax of 1861 apportioned to Texas was $355,106.66. By an ordinance of the convention of 1866, the state assumed the payment of this tax, and the comptroller was authorized to effect settlement if possible by setting off against the amount due the amount owed Texas by the national government on account of advances by the state for frontier defence, unpaid bonds of the United States held by the state, etc. 25 Nothing came of this, and by an act of November 13, 1866, the governor was authorized to have assessed and collected upon all real property a tax of 28 cents on each $100 of value of such property rendered for the year 1861, and any deficiency was to be made up from the state revenue account. 26 Nothing came of this measure either, however, and all that was collected of the tax was the effected by the United States internal revenue agents in 1865 and 1866. Up to the time of the suspension of collection by the act of Congress of July 28, 1866, there was credited to Texas $180,841.51, leaving the amount uncollected $174,265.16. 27
More burdensome than the direct tax was the federal tax upon cotton which was levied from 1864 to 1867. It was 2 and 3 cents a pound and its collection was rigidly enforced. The total paid by Texas was $5,502,401. 28
Besides the general property tax, the state levied income, business and poll taxes. The income tax levied during the war was not an income tax in the strict sense of the term but was really an occupation tax. Governor Throckmorton recommended certain changes in it, the chief ones being that the rates should be graduated and that there should be an exemption. 29 His suggestions were carried out in the act of November 6, 1866. 30 This act provided that there should “be levied on and collected from every person, firm, corporation, or association, doing business within this state, at any time during the year 1866, and in every year thereafter, an annual income tax, as follows: on the first $1000 of net taxable income, a tax of 1 per cent; on the second, a tax of 1 1/3 per cent; on the third, fourth and fifth, a tax of 2 per cent; and on all taxable income above $5000, a tax of 3 per cent.”
This tax was known as the “income tax.” It was provided also “that upon the salaries of all salaried persons, serving in any capacity whatever, except upon persons in the army or navy of the United States, or those whose salaries are $600 or less per annum, an annual tax of one-half of 1 per cent on all sums over $600 so received” should be levied. This tax was known as the “salary tax.”
In the assessment of the income tax the sworn schedule provided for a statement of the gross income and the deductions therefrom. The following deductions were allowed: from all incomes, when returned by heads of families, $600; losses on real estate, if purchased within the year; interest, taxes; amount actually paid for rent of homestead; and salaries. In addition to these, rent, insurance, and other expenses were allowed to be deducted from the profits of trade; from the rent of land, the average annual outlay for the repair of fences was deductible; and from the rent of buildings, actual repairs, not to exceed 10 per cent of the rent and insurance paid by the owner; from farming operations, the amounts paid for labor, repairs, live stock bought and sold during the year, insurance, and interest on any incumbrance upon the farm. 31
It is to be noted in regard to the assessment of the income tax that no use whatever was made of the principle of stoppage at the source. The salary tax also was self-assessed.
The income and salary taxes were in operation five years, or from 1866 to 1870. The returns, and especially those of the salary tax, were small. The law was poorly drawn and laxly administered, and evasion was wholesale. In 1867, no incomes were assessed in forty-two and no salaries in one hundred and one out of one hundred and thirty-three counties; in 1868, no incomes were assessed in sixty-one out of one hundred and thirty-six counties, and no salaries in one hundred and fifteen counties. 32
The business taxes levied during this period were the customary specific occupation taxes, the income tax as described above, and the special tax upon the receipts of railroad, telegraph and insurance companies. The occupation tax embraced a widening range of vocations as time went on, and especially after the discontinuance of the income tax in 1870. It is interesting to note that in 1866 an ad valorem tax on money loaned and on merchandise higher than the general ad valorem tax was levied under the guise of an occupation tax. This feature, which was observable in antebellum taxation and represented a spirit of hostility to money lenders and merchants, does not reappear in subsequent acts. The occupation taxes were frequently changed, and those upon the retail liquor business particularly showed violent fluctuations. There were defects in the laws levying them and laxity of administration, especially in the matter of light penalties for non-payment and of the absence of checks upon collections. 33
This period is important in the history of corporation taxation by the state for the attempt to make use of special corporation taxes. Until 1870, the method of taxing corporations was by the property tax and the income tax. In 1870, there was levied, in addition to the general property tax, an annual tax of 2 per cent upon the gross receipts of railroad, insurance, and telegraph companies. 34 In 1871, this was changed, and railroad and telegraph companies became subject to a tax of 1 per cent upon net receipts, life insurance companies to an annual occupation tax of $500, fire and marine insurance companies to one of $250. A few days later a tax of 1 per cent upon gross receipts was substituted for the 2 per cent tax upon net receipts. This combined use of the property and the receipts tax was thought to operate unfairly upon railroads as compared with telegraph companies because of the greater amount of tangible property owned by the railroads, and an increase in the tax upon telegraph companies to 5 per cent of their gross receipts was suggested. 35 The legislature, however, passed a bill which relieved railroads of taxation by the property tax, but it was vetoed by the governor on the ground that since the counties were not allowed to tax the receipts of railroads, fairness required that the ad valorem tax should not be remitted. 36 The result of this difference of opinion between the governor and the legislature was the repeal of the receipts tax, leaving only the ad valorem property tax applicable. 37 Corporations got off with comparatively light taxation, and for the first time in the state's tax history there appeared complaints of the working of the property tax as applied to corporations. 38
A poll tax of $1 was levied throughout the Reconstruction period. Until 1871 it applied to all males over twenty-one years of age, thereafter to those only between twenty-one and sixty years, with the usual exceptions of Indians and persons non compos mentis. The tax of 1871 and thereafter was for the benefit of the public schools. The penalty for failure to pay this tax was that the person failing should not receive any money due him from the state or the county until the tax with interest had been paid. That there was considerable evasion of the tax may be inferred from the fact that whereas the census of 1870 reported the number of males of twenty-one years of age and upward at 169,258, the number assessed for the poll tax in 1869 was only 95,895. 39
Next to taxation the chief source of receipts was the sale and hypothecation of bonds. The attempt was made during the Throckmorton administration to issue frontier defence bonds, but it was unsuccessful. Upon the establishment of the Davis administration, however, the issue and sale of bonds began. Receipts from sale and hypothecation during the four years 1871-4 amounted to $1,406,650.60 as compared with $3,900,766 derived from taxation.
Receipts from the sale of land were neglibly small on account of the policy of giving away the public domain to actual settlers. Heads of families without a homestead were entitled to one hundred and sixty, single men to eighty, acres. The conditions attached to the gift were three years' residence upon the land and payment of the land office fees. The convention of 1868 granted to Texans who had served in the Union army a bounty of land which varied from eighty to three hundred and twenty acres per man. Previous to the constitution of 1869 and after the adoption of the constitutional amendment of 1873 grants also were made to railroads, and nine of the roads chartered during 1873 and 1874 received grants. School lands and certain other lands were reserved from location by settlers or railroads, but only a small amount of them were sold, and that during the early part of the period. One of the merits of the Reconstruction governments is that the school, university, and asylum lands were not suffered to be spoliated. No provision for their sale was really made until 1874.
At the beginning of this period the assets to the credit of the school fund were $1,753,317 of 6 per cent railroad bonds, $320,367.13 of 6 per cent state bonds, and $19,474 in state warrants.
The amended constitution of 1866 reserved to the school fund its former endowments of securities and lands, but it did not provide, as had the old constitution, that a part of the annual revenue of the state derived from taxation should belong to the fund. As a result, the receipts during the five years 1866-1870 were from lands and railroad bonds only and were insignificant in amount. The constitution of 1869 made some important changes. Endowments theretofore made were confirmed, and all of the proceeds of the public domain, one-fourth of the annual revenue from taxation, and a poll tax of $1 were granted. By the act of August 13, 1870, the present division of the school funds into a permanent fund and an available fund was made. Under the new tax provisions a total of $1,053,625 was received by the available fund during the four years 1871-1874. Apportionment, which had been suspended since the war, was begun in 1872, the per capita varying between $1.81 and $1.95. As there was little local taxation to supplement the state apportioned funds, the school facilities afforded were meager, but any facilities at all represented a step forward. Such opposition as was expressed to taxation for schools was not against the state taxes but against the taxes which the county or school districts were empowered to levy. Most strongly protested was the 1 per cent ad valorem tax which the directors of each school district could, by the act of April 17, 1871, levy for the purpose of building schoolhouses and maintaining schools. 40
A question which came up for consideration during this period, and which was of great importance to the school fund, was the adjustment of the indebtedness of the railroad companies to the fund. The act of November 10, 1866, gave the companies the privilege of paying the interest past due in installments, the last payment to be made June 1, 1870. During 1867 and 1868, $60,871.73 was paid. On March 1, 1868, the companies owed $450,140.08 on account of accrued interest, and $1,753,317 as principal, or a total of $2,203,457.08. 41 The Reconstruction Convention of 1868-9 was disposed not to be lenient with the companies. It granted relief to the Houston and Texas Central, to which was joined the Washington County railroad, and to the Southern Pacific, but the Houston Tap and Brazoria and the Texas and New Orleans were ordered sold. 42 Relief was extended to all the roads by the act of August 13, 1870, permitting payment every six months of interest and in addition 1 per cent toward a sinking fund. The only road sold for failure to accept these provisions was the Houston Tap and Brazoria. The amount obtained from this sale was $130,000. 43 The Houston and Texas Central and the Southern Pacific were permitted to exchange for their indebtedness new 7 per cent bonds, and the Central was further favored by having credit allowed it for the sums paid for interest in treasury warrants during 1864 and 1865. 44 The validity of the payments of state warrants during the war was subsequently contested, however, but settled in favor of the railroads. Interest payments were resumed by the companies in 1871, but the experience with them was responsible for the constitutional provision that future investments of the school fund should be in United States bonds.
In 1868, $82,168.82 in 5 per cent state bonds appeared among the assets of the permanent school fund. These bonds replaced that amount of cash which was derived from the payment of United States bonds belonging to the fund and which had been used by the state government. They were regarded as a valid debt of the state, but no interest was paid on them. The 6 per cent bonds for $320,367.13 which were executed to the fund during the war in funding state treasury warrants received from railroads in payment of the interest and principal of their indebtedness, were not recognized as a valid debt during this period. 45
The university fund had been depleted of its assets by the legislation of 1860 and was possessed of nothing at the beginning of this period except some state warrants and a comptroller's certificate of indebtedness, both of which were of doubtful validity.
The constitution of 1866 reserved to university purposes the previous grants, but the constitution of 1869 made no reference whatever to the subject. The act of November 12, 1866, provided for the issue to the fund of $134,472.26 of 5 per cent state bonds to replace the United States bonds and interest on same which were appropriated in 1860. No interest was paid on this debt, however, during this period. Measures were passed in 1870 and 1871 authorizing the sale of the university lands, but they were vetoed by Governor Davis on the ground that there existed no necessity for sacrificing these lands. 46 The act of April 8, 1874, provided for the sale of the lands, however, and the receipts under this act are the only ones accruing to the fund from any source during the Reconstruction period.
By the act of Congress of 1862 and the supplementary act of 1866, Texas received from the United States land scrip for 180,000 acres for the purpose of establishing an agricultural and mechanical college. This scrip was sold in 1871 at 87 cents an acre, the amount realized being $156,600. This was quite as well as other states did in the sale of their scrip, but representing as it did some of the best land of the national domain, it was unfortunate that it could not have been held for sale till a later date. 47 The proceeds were invested in $174,000 7 per cent frontier defence bonds of the state and in $12,000 10 per cent bonds of Brazos county; $12,000 of the proceeds were drawn under the pretence that it was necessary to purchase the lands required for the location of the college, but the money was loaned and the comptroller held unpaid notes for it; $21,096 also was expended for a worthless foundation for the main building. 48
The amended constitution of 1866 limited the debt that could be contracted by the legislature to $100,000, except in case of war, to repel invasion, or suppress insurrection. And the convention of 1866, in conformity with the fourteenth amendment to the constitution of the United States, declared the debt created in aid of the war null and void, and the civil debt contracted between January 28, 1861, and August 5, 1865, except warrants issued in payment of services, or liabilities incurred, before January 28, 1861, also was nullified. 49 The arguments advanced in support of repudiating the civil debt were: first, that it consisted largely of treasury warrants which had been issued with the intention of their circulation as money, and were therefore in violation of article VII, section 8 of the amended constitution of 1861; second, that the assumption of this debt would bankrupt the state; third, that the warrants were in the hands of domestic speculators who had evaded military service during the war; and, fourth, that a large amount of the debt had been contracted for the persecution of Union sympathizers. 50 Opposing arguments were based on the injustice to those who had furnished their services and goods to the state institutions and civil departments and on the effect the repudiation would have on the credit of the state. 51
The Throckmorton administration of 1866 authorized the issue of $500,000 8 per cent frontier defence bonds, and created an auditorial board. None of the frontier bonds were issued, but pursuant to the convention ordinance of April 2, 1866, providing for the issue of 5 per cent bonds to take the place of the United States bonds and interest coupons transferred from the university fund in 1860 and those appropriated since the close of the war belonging to the common school fund, $134,472.26 of 5 per cent state bonds were issued to the university fund and $82,168.82 to the school fund. 52
The auditorial board of 1866, up to the time of the close of its work, estimated the valid debt of the state at $332,436.90, but of this amount it had audited only $149,145.34. Of this latter amount $6894.24 had been issued since the close of the war. The board issued $125,000 6 per cent bonds, known as the Throckmorton bonds, to take up a part of the audited debt, the balance, or $24,045.34, being represented by certificates of debt. This determination of the debt was not regarded as a full statement and, besides, was not thought to adhere to the requirements of the constitution. 53
The constitution of 1869 is unique among Texas constitutions for the absence of any limit to the debt-creating power of the legislature. It said simply that upon the creation of state debt, adequate means for the payment of the current interest and a 2 per cent sinking fund should be provided. This constitution also contained the provision which pronounced the war debt, military and civil, void, and went a step beyond the ordinance of 1866 with the provision that “all unpaid balances, whether of salary, per diem, or monthly allowances, due to employes of the state, who were in the service thereof on the said 28th day of January, 1861, civil or military, and who gave their aid, countenance or support to the rebellion then inaugurated against the government of the United States,” were forfeited, and all the 10 per cent interest warrants issued during the war for non-interest warrants were declared paid and discharged. The repudiation of the civil debt in 1866 and this additional repudiation by the constitution of 1869 were not enjoined by national law and they can not be justified by any moral sense.
A bill was introduced in the called session of the twelfth legislature in 1870 to audit and ascertain the public debt, but it was not passed until the eve of adjournment and did not receive the signature of the governor. 54 At the regular session, however, a similar measure was passed and became a law. 55 The auditorial board created by it reported under date of September 1, 1871. 56 It stated that it had been unable to find any error in the auditing by the board of 1866, with the exception of $10,283.13 allowed as interest on non-interest warrants. In regard to the unpaid balances due on January 28, 1861, and the 10 per cent interest warrants exchanged during the war for non-interest warrants, the validity of which was interdicted by the constitution of 1869, the board said that the former character of claims would not exceed $10,000, that the warrants exchanged amounted to $78,466.51, and that the board of 1866 had funded $40,000 of these claims in 6 per cent bonds. The new board further stated that the holders of these bonds refused to submit them for cancellation. On account of the higher interest (10 per cent) which the valid portion of the claims would bear if re-audited as compared with the 6 per cent interest which the bonds bore, it was estimated that the state would save only about $25,000 by repudiating the claims. In view of these circumstances, the board recommended that the action of the board of 1866 be confirmed, and this was adopted by the act of November 13, 1871. 57 As a result of the action of the two auditorial boards a total debt of $251,047.84 was recognized. 58 While a small portion of this amount,—the records do not disclose how much,—was incurred after the close of the war, it may be regarded as the pre-Reconstruction debt due individuals.
The beginning of the Reconstruction debt proper was in 1870. By the act of August 5, 1870, the issue of $750,000 of 7 per cent gold bonds, redeemable after twenty years and payable after forty years, was authorized to meet the appropriations made for maintaining ranging companies on the frontier. 59 Authority was given also to levy a tax sufficient to pay the interest and provide a sinking fund for the bonds, and the governor was empowered to sell or hypothecate the issues at the best price obtainable, the commission on sale, however, being restricted to not more than 1 per cent. The governor and the comptroller and treasurer were at logger-heads for a time, the latter officers declining to give their signatures to the engraver on the ground that it would place the credit of the state in the engraver's hands. 60 Only three hundred and fifty of the bonds were sold during this period and these in the year 1871 and at an average price of 89.4. The gross amount received was $313,200, which, after deducting commissions, left a net amount of $312,200. 61 Of the three hundred and fifty sold, one hundred and seventy-four were exchanged for cash held in the Agricultural and Mechanical College fund, leaving only one hundred and seventy-six disposed of to outsiders. These circumstances attest a difficulty of sale due to lack of faith in the state's credit. The interest on these bonds was met and a sinking fund was established. The sinking fund, however, was not invested in United States bonds, but was used to retire the frontier defence bonds, and up to August 31, 1874, $53,000 of these bonds had been redeemed.
Beginning with the fiscal year 1870 there were annual deficiencies in the current revenue, and bond sales were resorted to for the purpose of making ends meet. In May, 1871, $400,000 10 per cent bonds, redeemable in lawful currency of the United States after two years and payable after five years, were authorized to cover the deficiencies of 1871 and 1872, and in December, 1871, an issue of $2,000,000 7 per cent, twenty year bonds, were authorized for deficiency purposes. There were no restrictions as to the price at which these bonds should be sold, and in the case of the December issue no limit as to the commission that might be paid for sale. 62 In May, 1873, $500,000 10 per cent bonds, redeemable after three years and payable after ten years, were authorized for the purpose of funding state warrants. 63 There were sold in 1871 and 1872 two hundred and fifty-two of the deficiency bonds authorized by the act of May 2, 1871. At an average price of 93.5 they yielded gross $235,870.74, but with commissions deducted the net amount received was $229,375.94, and $156,433.47 of this amount was received in state warrants. 64 None of the deficiency bonds authorized by the act of December 2, 1871, were sold, and only $89,800 of the 10 per cent funding bonds were issued up to August 31, 1874. In addition to bonds sold, three hundred and fifty of the frontier defence and one hundred of the deficiency bonds were hypothecated with Williams and Guion of New York for $327,074.70.
Excluding $650,000 of debt authorized by the act of March 4, 1874, because it represents a measure of the administration which succeeded the Reconstruction, there was added to the funded debt of the state up to August 31, 1874, a gross amount of $900,900. There was redeemed during the period $57,100 of debt, so that the net addition was $843,800. There was besides a floating debt of $1,568,826.31, making a total debt contracted before January 14, 1874, or the date when the democratic administration succeeded the radical, of $2,412,626.31. There was also the debt due the school and university funds which was classed as of doubtful validity and which amounted to $809,311.67. The sum of the recognized and the doubtful debt is $3,221,937.98. Deducting $950,321.88,—which is the sum of the debt ascertained by the auditorial boards of 1866 and 1871 ($251,047.84), the debt of doubtful validity with accrued interest due the university fund, and the indebtedness to the school fund under the act of November 15, 1864,—as the amount of pre-reconstruction debt, there remains $2,271,606.10. This latter amount is the debt imputable to Reconstruction. The portion of this which was incurred during the Davis administration is approximately $2,172,262.21.
The debt policy of the reconstructionists is open to sharp criticism. The issue of bonds to meet deficiencies in the revenue when caused by extravagance in expenditures is illegitimate financiering and is to be wholly condemned. The funded debt also existed in five different shapes and was issued under as many different statutes. A debt issued under more uniform provisions would probably have been more inviting to capitalists. Considering, however, the character of the state government at this time and the doubtfulness of state credit generally, the prices at which the bonds were sold were fair.
The result of the large floating debt was injustice to creditors, an added cost to the state for supplies purchased, and collusion between officials and creditors in the payment of warrants. 65 The discount on warrants was as much as 50 per cent, and the spectacle was presented of men and boys employed by merchants to stand in the treasurer's office from morning until night to watch for deposits. 66 Suggestions were made for paying warrants according to their date or number, and for making them receivable at the treasury in discharge of debts due the state, but neither of these was adopted, though the former would seem to have been desirable. As soon as the new administration came into power the payment of warrants dated before January 15, 1874, was temporarily arrested, but they were allowed 8 per cent interest from date of registration with the comptroller. 67
But for the chance obstinacy of the comptroller and the opposition of the governor, Texas would have issued from the Reconstruction period saddled with a heavy debt representing subsidies to railroads. The state was under moral obligation to the International Railroad Company to adjust its claim to a subsidy, because construction of the road had begun and the company had otherwise met the conditions of the chartering act. The blocking of the will of the legislature and of the governor in this matter by the comptroller, while his action redounded to the welfare of the state, was, to put it mildly, extraordinarily presumptious. In the adjustment of the matter a very respectable element favored a subsidy and thought that this kind of aid generally would be the most effective in securing railroads. The cost, however, which this policy would have involved would have been beyond the ability of the state, and the grant of land and exemption from taxation for twenty-five years to the International company and land grants to other companies is to be regarded as a wise solution of the vexed question.
The salient features of the Reconstruction financial period of Texas history are the large growth of expenditures, the great increase in taxation, and the rapid accumulation of a comparatively heavy debt. The finances do not indicate the rule, however, of such venal and pillaging adventurers as infested other southern states with carpet-bag governments. At the same time there was more open abuse of public trust than at any other period of the state's history. An adjutant-general was guilty of defalcation of about $30,000, 68 the funds of the treasury department were used for a time to abet private ends and its books fell into “reckless disorder, 69 petty jobbery existed in supplying state institutions, and bribery was charged on high authority to have been instrumental in securing the subsidy to the International railroad.
The ground on which the City of Austin is built was selected as the proper place for the Capital of the Republic of Texas in 1839, six years before annexation to the United States.
How it happened that the seat of government was thus located, what public houses were then built for the Republic, when and how they were erected, and other matters of public interest connected with the early history of Austin should be made known to this generation before a knowledge of them fades into vague tradition. Many events that illustrate the conditions that surrounded the settlers on the upper Colorado over seventy years ago were of deep interest to them, but have never been recorded on the elevated plane of general history.
When I moved to Austin fifty-eight years ago, nearly all of the pioneer citizens of Austin's Colony were living; many of them I knew, as I did also all the Presidents of the Republic and governors of the State except Anson Jones.
General Lamar, in the autumn of 1837 or 1838, weary with official duties, came to the upper Colorado on a buffalo hunt. He procured an escort of six rangers at the old fort that stood in Fort Prairie, six miles below where Austin now is. Among them were James O. Rice and Willis Avery, both of whom long afterwards became my clients. From them and from the Rev. Edward Fontaine (a great-grandson of Patrick Henry), then the Episcopal minister in Austin, who for years was my friend and neighbor, I learned what I am about to state regarding Lamar's buffalo hunt and other matters.
Jacob Harrell was then the only white frontier settler where Austin is located, and no white man lived on the waters of the Colorado above him. His cabin, and a stockade made of split logs to protect his horses from the Indians, were built at the mouth of Shoal Creek, near the river ford. There Lamar and Fontaine (who was his private secretary), and their ranger escort camped for the night, and were awakened next morning early by Jake Harrell's little son, who told them that the prairie was full of buffalo. Lamar and his men were soon in the saddle, and after killing all the buffalo they wanted were assembled by a recall sounded by the bugler on the very hill where now stands the State Capitol building. Lamar, while looking from that hill on the valley covered with wild rye,—the mountains up the river, and the charming view to the south, remarked, “This should be the seat of future Empire.” The night before Harrell had told Lamar that he had gone up the Colorado for thirty miles in the dark of the moon, when he could go with safety (for Indians always made their forays in the light of the moon),—that he had not found a valley as “big as a saddle blanket,”—that the mountains were covered with cedar, and that he had found in abundance “grindstone rocks” and “speckled rock that would strike fire.”
General Lamar was a man of culture, and then knew that he was near an igneous or primary geological formation, which no one then believed existed in Texas. Mr. Fontaine thought the abundance of stone and wood for building, and the natural beauty of the location, which was at the northern limit of the alluvial valley of the Colorado, inspired the remark of General Lamar. Willis Avery, whose posterity still live in Texas, told me that Lamar killed on that hunt with his holster pistol near where the Avenue Hotel now stands the largest buffalo bull he ever saw.
When afterwards in 1839 Lamar was president he approved the Act of Congress of January 16, 1839, which provided for the appointment of Commissioners to select a site for the Capital. He appointed among them A. C. Horton, whom I knew well, and instructed them to go to Jake Harrell's cabin and look carefully at that location. Fontaine was present when the President talked to the Commissioners, and thought that Lamar's admiration of the ground near Harrell's cabin had much to do with the report of the Commissioners. 70
A few cabins had been built on the river two and a half miles below Harrell's cabin, and they called the place “Montopolis.” The site selected for the Capital extended below and above that place so as to include Harrell's cabin. Two or three other setlers had built their cabins in 1839 at the river ford near Harrell's and they called the place “Waterloo.”
The Congress, mindful of the exalted character and patriotic service of Stephen F. Austin, provided, in Section 2 of the act to appoint Commissioners, as follows:
“Sec. 2. Be it further enacted that the name of said site shall be `The City of Austin.' ”
The first section of the act required that the site for the Capital “should be selected at some point between the rivers `Trinidad and Colorado,' ” and above the San Antonio road. That road was then a noted trail, which was often called for in the early prairie surveys of Travis and other counties. It started from a Mission Church in Louisiana and had been traveled for over a hundred years by Mission priests, led by an “Intendant,” and protected by an escort of Spanish cavalry in their annual visitations of the Missions of San José, Concepción and San Juan near San Antonio,—then they visited the mission on the San Saba until after the priests there were massacred by the Indians. The annual visitations continued to the Missions at El Paso, on to the Gila River in Mexico and terminated at the Missions in California. 71 That old San Antonio trail crossed the Colorado eighteen miles below Austin before the town of Bastrop was built. After Bastrop was settled it crossed the Colorado at that point. Its location could be traced across Texas in many places as late as 1852. 72
After selecting the ground for the Capital, the Commissioners surveyed one mile square, laying it off in blocks and lots between Shoal Creek and Waller Creek, and designated locations for the public buildings. Their report to Congress was made on April 13, 1839, and so rapidly was the work of building pushed that in October, 1839, houses for the accommodation of most of the various departments of government had been erected.
The United States Census of 1850, taken five years after annexation, gave for Austin a population of 629. Two years after that I first saw the city and then the population did not, I think, exceed 800. The slowness of its growth resulted not only from the fact that it was on the very border of the upper settlements and exposed at all times to Mexican invasions and Indian forays, but because of continued opposition from prominent public men, and from other sections of the Republic to the location. Commissioners had been appointed three times by as many sessions of Congress to locate a State Capital. The first Commission 73 was created under a resolution offered by Thos. J. Rusk, in October, 1837, then a man of great influence and afterwards a colleague of General Houston in the United States Senate. He was a member of the House from Eastern Texas, and his influence prevailed to incorporate in the first act to select a seat of government the provision that the place chosen should not be over twenty miles north of the San Antonio road. In this policy of going north of the San Antonio road, General Houston never concurred. 74 No mention was made of the San Antonio road in the joint resolution under which the second set of commissioners were appointed, though President Houston vetoed a bill which located the seat of government under the report of the Commissioners, on the Colorado River below La Grange, and Congress continued for a time at Houston. But the Act of January 14, 1839, approved by President Lamar, did provide for the location north of the San Antonio road, and shows that the influence of Eastern Texas, combined with the West, led by General Ed. Burleson and John Caldwell, was too strong for those who desired the seat of government to be established in Houston, or at old Washington, on the Brazos.
Edwin Waller, protected by a company of armed citizens, began in Austin the work of building houses for the use of the Republic of Texas in May, 1839; and though no lumber mill had been established to furnish plank, houses had been built by October, 1839, in which forty wagon loads of archives, books, paper and furniture of the Republic were stored.
It was a proud day for the citizens of Austin when on the 17th day of October, 1839, President Lamar and his cabinet reached there with a cavalcade, at the head of which was Albert Sidney Johnston and Col. Ed. Burleson. A bugler heralded their approach. That night they enjoyed in the Bullock Hotel (kept then by Mrs. Ebberly) a sumptuous repast. Mrs. Ebberly was a sister of Col. Bailey Peyton of Mexican War celebrity in 1846, and who represented General Jackson's district in Congress. Mrs. Ebberly became a great favorite with the early settlers of Austin on account of her heroic conduct when the effort was made to remove the archives.
At that supper many toasts were drunk, among them the following:
“Sam Houston and San Jacinto! They will be remembered as long as Texas possesses a single freeman.”
“General Albert Sidney Johnston—a scholar, a soldier, and a gentleman; the highest qualities a man can possess.”
“The memory or Stephen F. Austin; whatever may be the pretensions of others to the paternity of Texas, we recognize him alone as the father of this Republic.” 75
The houses were generally built of hewed logs, being double log houses, with a passage between. The plank for building was sawed near Bastrop. Pine logs were squared with a broadaxe and then placed on a scaffold. One man on the top of the log and another below, after lining the log, sawed the plank with a whipsaw. Mr. J. W. Darlington, now ninety years old, with mind and memory well preserved, assisted in hauling the plank to Austin. He now lives in Austin. All the public houses were covered with split boards, rived by hand with a froe. Instead of being nailed, they were at first weighted down and held in place by straight logs. After a time the houses were covered with shingles, which were nailed on. A double log house with a passage between was built in 1839 on the east side of Congress Avenue at its intersection with Eighth Street, on the southwest corner of Block 97, above the present Avenue Hotel, and retired about fifteen paces from Congress Avenue. There Lamar, Houston and Anson Jones, as Presidents, had their business office. There Houston received M. de Saligney, the Minister of France to Texas, and there Governors J. Pinckney Henderson, Wood, Bell and Pease had their offices until 1855. Governor Bell occupied it when I reached Austin in 1852.
The first Land Office stood in the rear of that house and was one and a half stories high. It remained there until after our Civil War, and in it Morgan C. Hamilton, who never married, had his bedroom and office in 1868. On the block where the Avenue Hotel now stands (Block 84) were three double log houses (on the east side of Congress Avenue) for the War Department and Adjutant General. In similar log houses the State Department was established on Lot 6 in Block 83 (on the west side of Congress Avenue, between Seventh and Eighth Streets), and the Navy Department on Lot 1 of the same block. The log houses built in 1839 were of post-oak logs that grew where Hyde Park now is. 76 They were there cut and not hewed, on account of danger from Indians, until they were hauled to places where they were to be used. There was a post-oak forest at Hyde Park. The Ebberly (or Bullock) Hotel, across Sixth Street from the Scarbrough corner on Congress Avenue and on the southeast corner of Block 70, was built in 1839, the first story of hewed logs; the upper story of cottonwood plank, which in later years, about 1841, was removed, and the entire house weather-boarded with pine plank. The lot on which the old treasury building stood (Lot 4, Block 55) was sold by the State in 1853 to George Hancock, who, in 1856, sold the lumber in the house to Alex. Eanes, who used it in building a house on Sabine Street, between Seventeenth and Eighteenth. I know of no other remnant of buildings erected in 1839 except this house on Sabine Street. The house of the French Minister to the Republic, built afterwards with the gold of Louis Philippe, still remains on Robertson Hill.
The old Supreme Courthouse built in 1839 was erected south of Pecan Street and east of Congress Avenue, on the lot now owned by the heirs of Mr. Baron.
The Temporary Capitol for the use of Congress was built on Lots 9, 10 and 11, in Block 98, very near the spot now occupied by the Austin City Hall. It fronted to the east and was but one story high. A broad hall extended east and west, behind which were the committee rooms. The Senate Chamber was in the north end and the Hall of the House in the south. I attended one session of the district court held in the Hall of Representatives in that old building in 1854.
The President's house was more pretentious, being a two-story frame house and built on Block 85, where now stands St. Mary's Academy. It fronted to the south and was afterwards burned. 77
The first Austin sale of city lots (August 1, 1839) was made under a clump of live-oak trees, on the public square between Fifth and Fourth Streets (Pine and Cedar on original map), and between Blocks 45 and 46. The old trees still stand there, but commercial vandalism has been at work on them, for the tops have been mutilated for an electric or telephone wire. They stand on the north side of the public square, not over a hundred paces east of the residence of Mrs. A. J. Hamilton. George Durham's spring was near there. Mr. Darlington identified the spot.
The camp for the laborers who built the houses in 1839 was also near George Durham's spring at the intersection of Sixth and Nueces Streets.
For a short time emigrants came rapidly and built houses. The first store house was built by one Russell in the summer of 1839 at the corner of Congress Avenue and Sixth Street, where now stands the elegant eight-story building of Mr. Scarbrough. The house was a two-story frame, extending west about eighty feet; the studding, sills and joists were of hewed mountain cedar, and the plank for floors and weather-boarding were sawed with a whip-saw by hand. Russell sold the place to George Hancock, who, with Morgan Hamilton as his partner, sold dry goods and groceries there for several years, and then Hancock continued business on his own account until the Civil War in 1861. After the war Hamilton was elected to the United States Senate. George Hancock retailed salt, bacon, whisky and other groceries on one side of his store, and calico and dry goods on the other side, as all merchants did in those days. In 1853, Hancock built a two-story brick house on West Sixth Street, joining his old frame building and on the ground now covered by the west end of the new Scarbrough building. After the Civil War he tore down the old frame house and extended the brick house to Congress Avenue.
In the upper story of that brick house (first built) the district court held a session in 1854. In 1861 a company of “Union men” called “home guards” drilled there in the manual of arms until a short time after Fort Sumter was assaulted. Then many of them crossed the Rio Grande. Amongst those whom I saw drilling in that upper story were Thos. H. Duval, United States District Judge; James H. Bell, one of the Judges of the Supreme Court of Texas; E. B. Turner, who after the war was appointed United States District Judge; John Hancock, afterwards a member of Congress; A. J. Hamilton, my law partner when I was elected district judge in 1857, and United States Congressman from Texas when the Civil War began; Morgan Hamilton, Wm. P. DeNormandie, ex-Governor E. M. Pease, Doctors Lane and Litten, John T. Allen, Buddington, and still others. Morgan Hamilton, George Hancock, E. M. Pease, Judge Bell, Dr. Litten and a few other Union men remained in Austin until the close of the Civil War; but their opposition to secession was not concealed, and that fact made their condition one of great disquiet during the war.
Governor A. J. Hamilton was in the prime of manhood when the Civil War began in 1861. He was a man of great eloquence. Now that he is dead and the feelings, engendered by the war, which once alienated us no longer exist, I here record my admiration of his exalted patriotism and devotion to duty—as he understood it.
The Hancock corner (now the Scarbrough corner), at the intersection of Congress Avenue and Sixth Street, has always been a favorite resort. There the lawyers of Austin would meet before the Civil War on horseback in the afternoons of July and August and ride to Barton's Creek for a cool bath, for then we had no ice, telegraphs, telephones, barbed wire fences, or modern conveniences, and a cool bath was a great luxury. All of those lawyers are now dead except myself, James Smith, W. M. Walton, and many of them,—John Marshall, Ben Carter, Dick Browning, General Wm. R. Scurry, and still others, died on some battlefield.
On that old Hancock corner George Hancock planted a tall flagpole in 1860, and floated from it the United States flag until Fort Sumter was assaulted in 1861, when he was compelled to take down his flag. When the first United States troops entered Austin after the Civil War on the 25th of July, 1865, they halted at that flagpole, for Hancock had again hoisted his flag, and the troops called on him for a speech. He was no speaker, but a man of fine common sense, and George W. Paschal and E. B. Turner did the speaking. I was not present, but Frank Brown and Major Wm. M. Walton were there.
On Lot 4 in Block 55, about sixty feet below the old Hancock store, which stood on the corner of the Avenue and Sixth Street, a large one-story frame structure was built to serve as an office for the treasurer and comptroller. The building was retired some fifteen paces from the street; it had a broad hall running east and west. In it was also the Auditor's office, where the debt of the Republic was scaled, which gave great offense to the creditors. Thomas J. Jennings, Attorney General of the State, had his office there after the new Treasury building was constructed in 1853. That new structure was built of sawed white stone, and stood northeast of the present State Capitol within the Capitol enclosure. 78
Judge W. S. Oldham, Walton and Bledsoe, Thomas E. Sneed, A. J. Hamilton, Ben Carter and myself had our law offices in the old Treasury building below Hancock's store in 1855. There were in 1852 over sixty names of attorneys on the attorneys' roll of the Austin Bar. James Smith, who had just come to the bar in 1852 and myself, alone survive. Major Wm. M. Walton, who still lives, came to Austin in 1853.
The yard in front of the old frame Treasury building was always a favorite resort on summer afternoons. There Lamar, Houston and Anson Jones, as Presidents, and after them J. Pinckney Henderson, Wood, and Bell as Governors, would meet the Treasurer and heads of departments and receive pay for public service, sometimes in “Red Backs” and “Star Money,” which fluctuated in value with the fortunes of the Republic. It was at one time so depreciated that it required ten dollars of paper to purchase a Mexican silver dollar. To that old Treasury building also came the Ranger Captains of the frontier,—the two McCullochs, Andy Walker, Add Gillespie, Jim Rice, Jack Hays, Colonel Moore, Burleson, Dick Scurry and others,—to receive their pay, to speak of their scouts and Indian fights, and to discuss the outlook for Texas.
Adjoining the old Hancock store on Congress Avenue and Sixth Street was a small one-story house, where Chief Justice John Hemphill lived until 1853. He never married, but the domestic economy was looked after by old Sabina, his African slave. In 1853 he moved to a larger house just south of the present Catholic Church, where he lived until he was elected to the United States Senate before the Civil War. Just below his small house on Congress Avenue stood the old Treasury and Comptroller's office above referred to.
The records of the General Land Office were moved in 1852 to a new two-story stone house that stood just north of the west end of our present Capitol building. In the upper story of that house the Supreme Court held its sessions for many years, and the Land Office remained there until about 1856, when the new Land Office was finished, where it now stands.
On the original map of the city the west half of Block 170, where the Land Office now stands, was designated for the “President's House.” Governor E. M. Pease, in 1855, thought the ground where the Executive Mansion now stands, was a better place and had the Governor's Mansion built there. The half blocks joining the Capitol square on the west and marked “Attorney General,” and “General Land Office” were never built on for department use.
General Albert Sidney Johnston while paymaster in the United States Army, lived on Block 135, fronting the Capitol square on the west. That house was built in 1850 by Dr. Haynie, and was moved to the east end of block by its owner, Mr. Andrews. On the ground where it first stood is now the residence of Mr. Ernest Nalle.
I knew General Johnston; he had once been Commander-in-Chief of the Army of the Republic of Texas, and was respected and beloved by all the old settlers. The only storehouses now standing on Congress Avenue that were built before the Civil War are a three-story house built by Geo. Sampson at the intersection of Congress Avenue and Seventh Street, erected in 1858, and the Lamar Moore house, built in 1850, on the corner of Seventh Street, fronting the Avenue. The United States District Court held its sessions in the Sampson house before the Civil War.
From 1836 to 1846 the unequal contest with Mexico and the hostile Indians on the frontier was appalling. There were less than 6000 fighting men in all Texas in 1836 when San Jacinto was fought. 79 Mexico contained a population of over 8,000,000. General Lamar afterwards in his message to Congress in 1839 estimated the entire population of the Republic at 100,000, or less than 20,000 men.
General Houston was a member of the first Congress that met in Austin and did not conceal his objection to the Capital remaining there; though after his election the second time as President he stayed in Austin with the heads of Department until after San Antonio was captured in March, 1842.
The invasion by the Mexicans under Flores occurred in the spring of 1839, while the public buildings in Austin were being built. He crossed the Colorado a few miles above town with ammunition for the Cherokee Indians, but was intercepted by citizen soldiers under James O. Rice on the North Fork of the Gabriel and defeated,—his soldiers scattered and he killed.
About the same time the Coleman family were massacred eighteen miles below Austin, and from then until 1844 massacres by Indians were frequent. Black and Dolson were killed on Barton's Creek near the spring; Baker and Sauls were killed south of the river near Austin, while hunting. James was killed just north of the town. Simpson was killed one mile below town and one White was killed near the present lunatic asylum, one and a half miles northwest of town. 80 Jake Burleson was killed some distance northeast of town. 81 Under such conditions Austin could not grow, for there were only a few scattered settlements north or northwest of Austin until after annexation to the United States in 1845.
In 1842 there was not a house between Austin and San Antonio. 82 In March of that year San Antonio was captured by the Mexicans, and again in the autumn. The district judge who was holding court was taken prisoner, and he, with the lawyers and principal citizens, were handcuffed and marched on foot as prisoners into Mexico. Among the prisoners were Maverick, Colquohoun and John Twohig, all of whom I knew. About the same time occurred the Dawson massacre near San Antonio, in which nearly forty Texans were killed.
President Houston then called a session of Congress to meet in Washington on the Brazos. It deliberated there, and afterwards in Houston in regular and called sessions, from 1842 to 1845, without access to the former archives of the government which were detained in defiance of President Houston by the citizens of Austin; for to surrender them they thought would result in an abandonment of the frontier. So intense was the feeling among the settlers on the upper Colorado that an effort to move the archives would have resulted in civil war. This President Houston knew. He therefore sent Capt. Thos. Smith with wagons to secretly move the archives to Washington on the Brazos. It transpired afterwards that Col. Thos. Wm. Ward, Commissioner of the General Land Office, was the only one in Austin who was in the confidence of President Houston. Smith reached Austin at midnight, December 30, 1842, with his escort and wagons and was first discovered by Mrs. Ebberly (afterwards Mrs. Bullock), while he was loading his wagons in the alley west of the old Hancock store. She was near, for she kept the hotel just across the street where now stands the three-story building which belongs to Capt. Joseph Nalle. To arouse the citizens, she went quickly to where a six-pound cannon loaded with grape stood in Congress Avenue, and aiming it at the Land Office where other wagons were being loaded with archives, fired it. Several of the shot struck the building. 83 Captain Smith retreated hastily with his wagons but was overtaken early next morning by the infuriated citizens with the cannon, who were commanded by Mark Lewis. The archives were recaptured and brought back. 84 Many of the citizens wished to hang Colonel Ward, the Land Commissioner, though he had lost a leg in 1835 at the storming of Bexar and an arm while firing a cannon on San Jacinto day.
The archives, after their return, were sealed up in tin boxes and placed in the custody of Mrs. Ebberly. After that they were kept for some time under guard in an old log store house on Congress Avenue. The citizens of Austin and the settlers on the upper Colorado would not permit the government to remove the archives to Washington or Houston, where Congress was in session, or for Ward to keep the records of the Land Office. The archives of the Land Office, after being guarded by citizens for a few months, were buried in the ground, as a precaution against future raids, either by Mexicans or people from other sections of the State. They were not restored to lawful custody until January 1, 1844.
General Houston in his message to Congress in January, 1844, justified his action, and referred to the lawless conduct of Austin people with much severity. He stated in that message that they had said they would give up the archives if they could get hold of the President!
In the backyard of the old Bullock Hotel, on the northwest corner of Sixth Street and the Avenue (once kept by Mrs. Ebberly, and afterwards in 1852 called the Swisher House), was the last joint discussion, one hot August afternoon, over secession, before the War. Judge Jas. H. Bell and E. B. Turner spoke against secession, and Geo. Flournoy, Attorney General, for it. In November, 1860, General Houston, then Governor, made the last plea for the Union to a great audience in the open air just north of the old Baptist Church, which stands fronting the Executive Mansion. He spoke from an elevated platform on the north side of the church; with prophetic eloquence he mapped out the struggle before the South, and predicted our defeat with the causes that would lead to it. He spoke with fervid eloquence for nearly two hours. He was even then the finest-looking man I ever saw. Six feet two inches high, with majestic bearing, and fine voice, he thrilled the vast audience with his impressive speech. I knew him well, being the district judge in Austin in 1860 and 1861, while he was Governor. He and Mrs. Houston were members of the same Baptist Church to which my wife belonged, and at her sick bedside partook with her of her last sacrament in 1860.
It is difficult for this generation to understand the wonderful self-reliance of the pioneer settlers of Austin, under the difficulties that confronted them. Men are largely the result of their environments; those men grew up on the frontier of civilization and were inured to its dangers. We will not see their like again. General Houston once said to me that he had absolute confidence in his men at San Jacinto, and, though the Mexicans outnumbered them two to one, he never for a moment doubted the result of the battle.
I am tempted to relate an incident that occurred on Robertson Hill within the limits of Austin in 1843, which will illustrate the character of Austin's colonists. Reuben Hornsby lived six miles below the town and sent his three boys to look for his loose horses, fearing an Indian raid, for it was the light of the moon. From the top of Robertson Hill they saw several Indians on horseback coming up directly toward them and whipping before them with their unstrung bow strings a dwarf tailor named Coleman, whom they had caught while he was fishing in the river. Coleman was on foot, with hands tied behind him. The Hornsby boys were concealed from view in the post-oak thicket, and had but one pistol. One of them proposed to fire the pistol, dash out of the brush with a whoop and give Coleman a chance to escape, saying “They'll think we are rangers.” This was done, the Indians fled and Coleman escaped. Froissart in the days of old never recorded a more chivalrous act.
It was said in 1843 during the archive troubles that but five women remained at one time in Austin. 85 But enough men remained, backed by the settlers on the upper Colorado, to successfully defy the rest of the Republic, and keep the archives.
After the Mexican War of 1846 the United States established for several years the headquarters of the military department in Austin. But few troops were ever kept there, for they were posted at the forts on the frontier built by the United States. The United States Arsenal was where a public schoolhouse now stands on the block marked “Armory,” it being the southeast corner block of the original town.
One of the old landmarks was the “Harney cottage.” General Harney of the United States army in 1847, after Texas was annexed to the United States, built a residence on a large outlot which embraced the ground covered now by the residences of Mr. Scarbrough, the Driskill residence, Grace Hall, and Bishop Kinsolving. A long row of stables extended east from Harney's residence to about where Grace Hall now is. There Robert E. Lee, Joseph E. Johnston, Albert Sidney Johnston, Generals Walker and Hood (then captains) stabled their horses, when they lodged with Harney, for all of them served on the Texas frontier after the war of 1846. After 1850 the headquarters were removed to San Antonio. As late as 1852 there was not a house between the Harney cottage and where our Capitol building stands and but four residences between the Harney cottage and Georgetown, viz., Enoch Johnson, Nelson Merrill, McKinzie, and a house at the crossing of the creek where old Round Rock was built.
On the ground just in the rear of the present city hall, President Anson Jones delivered in front of the Old Capitol his last address. He closed it with the remark, “The Republic of Texas is no more” and, lowering the flag of Texas, hoisted that of the United States. Then Governor J. Pinckney Henderson delivered his inaugural address. Captain James G. Swisher and Morgan Hamilton both told me that the hillside was covered with people, and that many a strong man wept to see the Lone Star flag go down. They had sustained that flag for ten years on many a battlefield, and dreaded a future conflict over African slavery in the United States; for war clouds were even then gathering.
The country now covered with farms will never again look as beautiful as it then was. The prairies were clothed with waving grass hip high, and abounded with deer and antelope. It was a hunter's paradise until 1857, when a disease called “black tongue” almost destroyed the deer.
I am quite aware that much of the foregoing will be deemed unimportant, but sometimes the sidelights of history reveal conditions of a past era that serve to interest the antiquary, even when destitute of historic value.
In the last days of the summer of 1863 Major John Tyler, son of an ex-President of the United States, and at that time an aid on the staff of General Sterling Price, C. S. A., was making the slow and toilsome journey from his headquarters at Arkadelphia, Arkansas, to Austin, Texas. This had been a disastrous summer for the Confederacy. At Gettysburg General Lee had been thrust back and put a second time upon the defensive in Virginia; Vicksburg had been lost, the Mississippi had been seized by the Federals and the Trans-Mississippi Department cut off from Richmond. In the Trans-Mississippi Department itself, the whole of Missouri, nearly of Arkansas, and the most important part of Louisiana were in the hands of the Union forces. Texas alone was untouched by the enemy. In this desperate situation men's eyes again and again turned anxiously to Europe for some indications of the promised intervention in behalf of “King Cotton” that would secure them independence. This intervention once so confidently expected had for a brief time seemed at hand when, in the latter part of 1862, Napoleon III had addressed notes to England and Russia suggesting friendly joint offers of mediation in the American conflict; and even when this opportunity had come to nothing through the hesitation of England and Russia and the positive refusal of Lincoln and Seward to entertain the suggestion, confidence was still high in the good intentions of the French emperor. But months passed on, the inexorable enemy pushed his lines farther and farther into Confederate territory, and Napoleon III, now busied with Mexico, remained inactive as to mediation, though still protesting his good will.
Some time after Major Tyler arrived at Austin he presented a lengthy memorial to “His Excellency the Governor, the Governor-elect, and the Authorities of the State of Texas.” The essential part of that memorial is printed below. It is an appeal for Texas to take the initiative in demanding protection of France upon the basis of the guarantees in the Louisiana Purchase Treaty of 1803, on the assumption that Texas was a part of the Territory of Louisiana at that time. Obviously, the importance of the memorial lies quite as much in its origin as in its content. With whom did the plan originate? Was it Major Tyler's own independent scheme, or was Tyler only an agent of higher authorities? Could the plan have been prompted by the tortuous counsels of Napoleon III or by some of his officials in Mexico? Did it originate with the hard-pressed Confederate authorities at Richmond or with the military commanders of the Trans-Mississippi Department?
The whole memorial is based upon the belief, confidently expressed, that the French emperor is willing enough to intervene, if given the proper opportunity. There were not wanting proofs that the independence of the Confederate States was an important desideratum of his larger policies. Is it possible that Napoleon III had inspired Tyler's plan? If we accept the argument of the memorial, namely, that because of the diplomatic situation the French emperor was in no position to take the initiative but must await an appeal founded upon some definite obligation, such an assumption would do no violence to our knowledge of Napoleon's tactics. Just a year before the French consul at Galveston, M. Théron, had sent a note to Governor Lubbock suggesting that Texas might find it desirable to withdraw from the Confederacy and re-establish the old Republic—presumably under the protection of France—a suggestion which Lubbock denounced as evidence of “an incipient intrigue” and revealed to Jefferson Davis, who promptly expelled Théron from Confederate territory. However, it could not be found that the French consul had been inspired from Paris. 86 It is not likely that the French would have gone to Arkansas to secure an agent. There is nothing to show that the officials in Mexico had anything to do with Tyler's mission; for, though rumors were abroad that Marshal Bazaine had some sort of instructions to co-operate with the Confederate authorities or those of Texas if a favorable opportunity offered, these rumors have never yet been substantiated. A search through the archives of Paris or Mexico might reveal more of Napoleon's intentions.
Then if the scheme did not originate abroad, is it traceable to Jefferson Davis? It may well seem strange that Tyler should undertake a mission without the knowledge of the President, which, if successful, would be of the greatest moment to the Confederate government. We also know that Major Tyler was within a few weeks afterward promoted to a position in the War Department at Richmond, a fact which argues that he must have enjoyed the confidence of the officials there. But there is absolutely nothing discoverable in the Confederate papers to indicate that Davis or Benjamin, then Secretary of State, ever had any knowledge whatever of the memorial. Moreover, Governor Lubbock, who shortly afterward became a member of Davis's staff, seems never to have heard anything of it from Davis himself, who would certainly have sounded the ex-governor of Texas if he had had any such scheme in mind. Above all, it would have been wholly inconsistent with the character and policies of the Confederate president to revive French claims to a part of the Confederacy, claims which in view of what was transpiring in Mexico, were more likely to prove dangerous than helpful.
That Tyler could have taken up the matter on his own initiative seems equally improbable. Why should he be allowed to absent himself from his post of duty at Price's headquarters, on a five hundred mile journey, at a critical period of the campaign? 87 Is it possible that he would have undertaken a project of this kind without receiving the permission of his friend and commander? Then, was Tyler the agent of General Price or of the commander of the Trans-Mississippi Department, General E. Kirby Smith? The isolation of this department, through the capture of the Mississippi by the Federals, had caused the authorities at Richmond to grant the Trans-Mississippi commander almost complete governmental powers; and at a conference of the governors of the states in that department, held at Marshall, Texas, in August, 1863, it was recommended among other things that General Smith enter into negotiations with the French in Mexico. Shortly afterward he wrote Mr. Slidell, envoy and minister of the Confederate states at Paris, to urge the necessity of an alliance between the Confederacy and France in order to protect French interests in Mexico? 88 He said nothing, however, of the treaty of 1803; and while he at once sent a copy of this letter to Jefferson Davis, he never at any time said anything of any authority given to Tyler. If Tyler was acting for the military commanders, why did he not say so in his memorial? If he was acting without their knowledge or consent, why was he not reprimanded instead of promoted?
The most probable explanation seems to be that Major Tyler was sent by his commander, Sterling Price, to induce the state officials to take the initiative in appealing to France, since the military could not themselves act in the name of the state. Moreover, we have a statement, at second hand, from Captain N. L. Norton that he accompanied Major Tyler from Price's headquarters at Austin “with instructions to secure if possible suitable action upon the part of the Texas authorities to bring to a head the proposal that it was said Marshal Bazaine was ready to make in Mexico looking to French intervention.” 89 Though this seems the most probable answer to the question, it is impossible now to determine definitely the authorship of the scheme; and it is hoped that the printing of a part of the document may attract the attention of some one who can supply the needed information. 90
Governor Lubbock never acted upon the suggestion in the memorial. He stated then that he could not do so without first consulting Mr. Davis, and the end of his term of office was too near for that. Lubbock seems also to have thought the scheme involved the secession of Texas from the Confederacy, an idea which he refused to entertain for an instant. His successor, Governor Murrah, seems never to have taken the matter under consideration at all, and what might have been an interesting and important diplomatic matter became a forgotten incident.
Of the document itself approximately the first half is omitted here, a verbose and highly rhetorical introduction for which a summary will suffice. With a candor that could never have found expression in public speech or print at that day, Major Tyler declares at the outset that the Confederacy is in a most desperate condition, that it is gradually growing weaker, that without foreign aid all the states east of the Mississippi except perhaps Virginia and the Carolinas will be in the grasp of the enemy within less than a year, that west of the Mississippi Texas alone is free and that preparations are being made even now for her invasion. 91 It is impossible to believe, he says, that the Confederacy can ever recover its lost territory and win its independence unaided. Foreign intervention is absolutely essential.
Turning now to that subject, he quotes at considerable length from an article in De Bow's Review, of 1862, in which the writer attempts to explain the diplomatic situation abroad. Great Britain is represented as having realized her great error in freeing the slaves in her tropical colonies in 1833, by which act she had diminished her tropical products and seriously endangered her trade supremacy. Fearing the competition of the semi-tropical agriculture of the Southern states, based upon slave labor, and the growing commerce of the North based upon its monopoly of the Southern market, she had set to work to undermine both by developing abolition sentiment in Europe and the Northern states. She had succeeded beyond her expectations, for now the war of subjugation waged by the free states upon the South would not only destroy the slave system and the agriculture of that region, but would inevitably crush in reaction the economic power of the North also. Great Britain believed this would relieve her of her most dangerous commercial rival, restore to her the carrying trade of the seas, discredit republican government, and maintain British political institutions in the interest of the ruling classes. Therefore she was content to see the two sections wear each other down, and had rejected Napoleon's offer of joint mediation. The Russian Czar is represented as fearing to arouse the anger of his nobles, whose serfs he had recently liberated, by inconsistently interfering in behalf of a slave-holding people. For this reason he had held aloof with Great Britain.
The “profound” and “sagacious” emperor of the French determined to elevate France to the highest position among the nations, is credited with understanding both the designs of Great Britain and the predicament of the Czar. He has no desire to see the South conquered, for then the United States is likely to become a militant empire, stretching out over Mexico, Central America and the West Indies, and thus grasping and monopolizing every great tropical product of the western world. Nor does he intend for Great Britain to reap the profits of the ruin of American commerce, if that should be the result of the war. Both contingencies must be defeated since “either would circumscribe the importance of France, diminish the influence of the French empire, wound the vanity of the French people, and endanger the present dynasty upon the throne.” To this great end he had seized upon Mexico, forestalling the United States and securing to France a rich tropical region from which could be drawn the raw materials of manufactures, a region in which the existent institution of peonage could easily be converted into the institution of slavery. It could be no part of his plans to suffer the South to be subjugated for that would inevitably bring him into conflict with the undivided United States; it must be his purpose first to secure himself in Mexico and then intervene in behalf of the South. This would break the power of the North, foil Great Britain, create an immense French empire and carry France to a higher position than she had ever held even in the days of the great Napoleon.
Closing the long quotation, Major Tyler points out that the Polish revolution and the fear of French interference there had lately caused the Czar to draw closer to the United States and Great Britain, and had forced Napoleon III to conciliate Austria by offering the crown of Mexico to Maximilian. The Emperor could not afford to risk fighting the United States, Great Britain and Russia combined, by intervening alone in the American struggle upon the vague principles of humanity and in consideration of his own selfish advantages. The principle of European balance of power would admit only of a joint intervention, and then not in behalf of the South, but in accordance with the doctrine of uti possidetis, whereby the South would be stripped of all its states now held by the North. This would leave the South weak, divided, and a possible prey to the greed of the intervening powers. How this danger could be avoided while securing effective intervention is the substance of the remainder of the document, which follows herewith. 92
Having thus, gentlemen, sincerely, according to my best judgment and conviction, unfolded our “Status,” both at Home and in respect to Foreign Nations, in the light of existing facts and future probabilities, permit me now to say it is proposed to shun all the evils that have been shadowed forth, whether to be derived from the arms of the United States, or whether from an Armed Intervention of the European Powers. It is believed that the arms of the one and the schemes of the other may be defeated; that the Confederate Cause may be made to prevail against both; that the Confederate Government may be maintained in its integrity; and that Human Liberty and Republican principles may be established triumphantly; without jeoparding the peace of Europe; and this through the instrumentality of Texas, springing out of the Wilderness, as she has done, like Israel's Host of old. Let us proceed now to this issue.
Some years ago, in the course of the career of that miracle of Genius, Napoleon the Great, while conducting the Arms of France against the combined Powers of Europe, Spain, then in possession of all South America and the greater part of North America, ceded to France the “District of Orleans and the Territory of Louisiana.” Afterwards, Napoleon, fearing that the Purchase might be seized by the Superior Maritime strength of Great Britain, and that, in conjunction with the Canadas, it would give to that Nation a Territorial extent in North America entirely surrounding and envelopeing the United States, furnishing the ultimate means of crushing out the young Republic and grasping a range of Commerce before which no other Empire could stand, sold this Purchase to the United States in the hope of substantiating those States against Great Britain and building them up into a powerful Commercial and Manufacturing Rival, but stipulating in the Deed, or Treaty of Sale, among other things, with his usual clearness of perception and sense of Justice, that, “the Inhabitants of the ceded District and Territory shall be maintained and protected by the United States in the free enjoyment of their liberty, property, and the Religion they profess”; and, in approving the Treaty, he thus wrote to the Inhabitants, “let the Louisianians know that we separate from them with regrets, but that we stipulate in their favor everything that they can desire.” Similar guarantees in behalf of the Inhabitants had been given by France to Spain. The whole world at the time acknowledged “property” in Slaves and Slave Labor, and Negro-Slavery existed among the Inhabitants and, by the local law, extended over the whole District and Territory from the Nueces, if not the Rio Grande, to Vancouver's Island, for the Purchase itself embraced not only the States and Territories now attached to the Trans-Mississippi Department, but extended over Iowa, Minnesota, Dakota, Kansas, Nebraska, Washington and Oregon.
Here, then, were solemn Treaty Stipulations, in perfect accordance with the sense of the age, binding upon the United States to “Maintain and protect” the institution of Negro-Slavery and property in Negro-Slaves among the Inhabitants of the Louisianas, and resting in the National honor and good faith of France and Spain to exact the full measure and observance of for all time to come so long as the Inhabitants should desire it. And by the Constitution of the United States this Treaty stood as a part of “the Supreme Law of the Land.” Nevertheless, this Treaty, thus circumstanced, has been violated time and again by the United States, but never during the reign of Napoleon. Before the United States proceeded to violate it for the first time, in 1819-20, through the vote of the North in the Congress at Washington, upon the question of the admission of Missouri into the Union as a Slaveholding State, and by the application of the “Compromise line” cutting off and excluding Negro-Slaves from among the Inhabitants of the Territory north of that line, Napoleon was overthrown in France and chained to the rock of Helena, and the Bourbons, whose policy it was to ignore his acts where they could not be set aside, acceded to the Thrones of France and Spain, and those Governments lost sight of their guarantees to the Inhabitants of the Louisianas. This State of things continued, necessarily, until the resubversion of the Bourbons and the reaccession of the Napoleonic Dynasty to the Throne of France in the person of Louis Napoleon. By the fact of the reaccession of the Napoleonic Dynasty this Treaty becomes re-established in the honor of France and upon the conscience of the Emperor. And as Louis Napoleon is now recognized and acknowledged as the Lawful Sovereign of France, in right of his uncle and the French People, by the European Powers, International Law will justify him in the assertion of the guarantees of this Treaty against the United States in favor of the Inhabitants of the Louisianas, and deprives those Powers of the pretext of war for his so doing. The United States, taking advantage of the situation in France, and in contempt of their own Constitution, have not only, through the force of the North in the Union, time and again, violated this Treaty, as we have said, but they have finally driven the Inhabitants of the country who still own slaves to arms in defence of their rights under its stipulations; and now the United States threaten utterly to extinguish these rights by depriving these Inhabitants of their liberties, robbing them of their property, and abolishing Negro-Slavery. So far from maintaining and protecting the Inhabitants in the “free enjoyment” of their liberty, property and religion, the course of the United States has been and still is utterly to deprive them of liberty, property and religion, together with Life itself;—even their lands are confiscated.
All the States of the Trans-Mississippi Department would have the right, under this Treaty, not only to Appeal to France and Spain for protection, but to demand of those Governments the fulfillment of its conditions as against the United States, in the past as in the present, had they equally the power of speech and of action. But, as has been stated, Missouri with the remorseless sword of the Enemy at her throat is rendered utterly nerveless, while her Inhabitants are being ruthlessly despoiled alike of liberty and property; and Arkansas and Louisiana are so far shackled and reduced that neither of them can speak, or act, with authority. Texas alone, among them all, remains free, sovereign and independent, with the full power of speech and of action, and it is for her to decide whether she will assert the true dignity of her position, or remain silent on the subject, suffering events still to proceed until the war shall close around her borders and enfold her in its Anaconda grasp. Should she determine upon action it will be her high duty and privilege to speak to the issue not only for herself, but to represent the situation and condition of Missouri, Arkansas and Louisiana, and to embrace them in her Petition and demand. That Texas was originally a part of the Louisiana Territory, suffered to lapse through the neglect of the United States controlled by the policy of the North in the Government, can scarcely admit of a doubt. Those best versed in the history of the times of the Purchase always so asserted; and Mr. Benton in his annals of “Thirty Years” service in the Senate, as well as in his speeches upon the question of the admission of Texas into the Union, invariably styles the measure, not one of “annexation,” but of “reannexation.” She can, at this time, claim it to be her especial province to take action under the Treaty with France, and that between France and Spain, since, heretofore, while in an anomalous condition, she was debarred from speech, like an Infant at Law, and it was not until she was “reannexed” to the United States that she recovered her Status beneath the folds of its stipulations and guarantees that are now being threatened by the United States with invasion, subversion and destruction, and in defence of which she has been driven to the direful necessity of Revolution and War.
This action on the part of Texas is urged, not for the purpose of severing her from the Confederacy, but for the purpose of restoring her connections with the Confederacy. We have seen that she is isolated and cut off from the Government at Richmond, and from nearly all resources exterior to herself, and that before these connections can be re-established the Enemy must be hurled back from Louisiana and Arkansas, overwhelmed in Mississippi as well as in Tennessee, and his Fleets be expelled from the Mississippi River and destroyed in the Gulf of Mexico. These results can only be achieved by bringing to bear against the Enemy superior forces, and these forces can only be obtained from France, or from France and Spain combined. Otherwise the struggle has to be made with forty thousand men, at the most, numbering those now in the service with those that hereafter may be raised, unsupported by a Navy and a blockaded Coast, against ninety thousand, at the least, that may be increased to two hundred thousand, supported by powerful and unopposed Fleets, a mercantile marine the largest in the world, and the markets of the universe open to them for supplies. In considering the subject let us not deceive ourselves. The necessity for Foreign aid is becoming, if, indeed, it has not already become absolute, and yet, we can not afford the risk of an “armed intervention” of the Commercial Powers and the application of the doctrine of “Uti possidetis.”
But why should Texas take this step rather than the Government at Richmond, or, in other words, why should Texas originate the step though final action were had at Richmond? She should do so for the reasons that have been assigned, and because our Confederate authorities can only act through a general agency and a general delegation of powers, and, in so acting, must act for the whole, as a whole, rather than for a part in reference to the whole. To act for a part only would be to act invidiously, to regate their general authority, and to attract, in all probability, odium and denunciation. Reasons both of policy and propriety would, very likely, prevent such action though never so urgent and desirable. Doubtless, our authorities have done and are doing everything regitimately in their power to induce friendly Intervention, as they have done and are doing to repel the Enemy; but do they object to any assistance that Texas may now bring them in the way of Men and Materials of War that she alone can control, and will they object to her assistance through measures which she alone can command and inaugurate? It would be illogical so to conclude. They will be, unless I greatly err, only too happy to receive such assistance in relief of the delicacy of their position. It could not be viewed in the light of a violation of the Treaty making power confided by the States to the Confederate Government, for it would not be in the line of any new contract, or alliance, with a Foreign Power, but simply an appeal and demand that an existing contract and alliance shall be duly executed. But, under the pressure of our necessities, we willingly close our eyes to many departures from the strict rule of Civil right and Constitutional formalities in order to secure vigor and energy in the Common Cause and Success to our efforts for the general good. Let us not then impede this movement on the part of Texas by objections founded in casuistry, or oversensitive regard to the mode and manner of its conduct, its object and termination being the interests of us all and the substantiation of the Confederacy.
There is one feature associated with this Treaty that must be of an exceedingly interesting and attractive character to France, and which can not fail to excite the indignation of the French People by reason of its desecration. It will be remembered that out of the lands embraced in the “District of Orleans” the United States made an extensive donation, now comprehending much of the City of Orleans, to Gilbert Mortier de La Fayette, in consideration of his distinguished Revolutionary services, and large sums of money expended out of his private purse in support of our Troops and Arms during the War of the Revolution. This donation he consented to accept, but on discovering that the lands were, already, for the most part, occupied by Settlers, he generously and unreservedly, with his usual liberality and magnanimity of soul, confirmed them in their possessions without restriction upon their domestic usages. These Settlers were, at the time, Slaveholders, and all their usages partook of the Institution of Slavery. The United States after first oppressively compelling these “Inhabitants” to proclaim their Constitutional privilege to secede from the Union in defence of their Rights and Liberties, have now proceeded, sword in hand, to rob them of their slaves, to confiscate their Real Estate, and to deprive them even of life if prompted by revenge, or policy, equally in contempt of the Donation, of the Bounty of La Fayette under it, and of the Treaty with France. Surely neither the French Government, nor the French People, will suffer the memory of La Fayette to be thus desecrated and their National honor to be thus despised in disregard of the fundamental principles of International Law. It would be entirely proper to embrace the case in any official proceedings had upon the subject of the Treaty.
These proceedings should be, as has been suggested, in the Nature of an Appeal, or demand, upon the Emperor of the French, by Texas, endorsed, if need be and time permitted, by the Government at Richmond, covering all the “Inhabitants” of the States and Territories of the Trans-Mississippi Department, in the full light of the Provisions of the Treaty, the violations of these provisions and the oppressions of the “Inhabitants,” and the general and special circumstances involved in the conduct of the United States.
Should France, through the action of Texas in the manner indicated, be induced to interpose in behalf of the “Inhabitants” of the States and Territories of the Trans-Mississippi Department, on the basis of the Treaty of Purchase of the Louisianas, the advantages derived to the Confederacy would be incalculable, not only during the War, but after the declaration of Peace. The Power of Spain would be unavoidably involved in the direction of the action of France; and Brazil, Mexico, Italy and Austria, would be placed in the position of armed Neutrals leading to the side of France and Spain, compelling Great Britain to look well to herself before she hazarded the repose of Europe, though she were disposed to question the grounds of the interposition of France. Indeed, Great Britain, in view of her Commercial and Manufacturing interests, would, under the new situation of affairs, soon see the necessity on her part, not of opposing, but of joining in the movement. In the meanwhile, it is reasonable to suppose, the Polish difficulty would be adjusted and a Confederate Fleet liberated from the Ports of Europe to operate along the Atlantic Coast in recovery of the Cities and Harbors captured by the Enemy. As matters began to assume this shape the probabilities are that the North would gladly agree to an Armistice and negotiations for peace. But should they, under these circumstances, determine upon continuing the War their destruction would be inevitable, seeing which Great Britain would not only refuse to stir in their behalf but would immediately spring to their overthrow, as the real policy of the British Ministry is founded in the idea of the annihilation of their commercial and Manufacturing systems resting on Southern products. These products would be now for distribution throughout the world, and no longer confined to the States of the North, neither would the North any longer command and monopolize the Carrying trade of the South. They would be stripped of all their exclusive privileges heretofore enjoyed under their navigation acts, and fall like Lucifer to rise no more. A French and Spanish Fleet, and a Franco-Mexican Army, stand in readiness in the Gulf of Mexico and along its shores, almost at our doors and within our call, to advance, in conjunction with the Confederate forces under Smith, Magruder and Price, against Banks in Louisiana, and Steele and Davidson in Arkansas, while raising the blockade of New Orleans and clearing out the Mississippi River. Thus the power of the Northwestern States on this side the Mississippi would be broken, while that of the Middle and the Eastern States on the other side would be crushed beneath the hammering blows of Lee, Beauregard, Johnston and Bragg. Finally, it would remain for the Confederacy and its Allies to dictate to the Government of the North their own terms of adjustment, and everywhere the abolition sentiment would expire.
These terms of adjustment could only be such as to assure the impoverishment of the North, following their overthrow and the declaration of peace. The Northern States would be deprived of the trade of the South and the markets of the South; their ships would rot at their wharfs for the want of employment, and their Factories would crumble to their foundations. The Trade of the South would be no longer confined to Philadelphia, New York and Boston, but would be extended to London, Liverpool, Havre, Paris, Lisbon, Madrid, Vienna, Genoa, Florence, Rome, Havana and Rio Janeiro. The shipping of the South would be no longer restricted to Northern bottoms, but would command the Mercantile Marine of the World. The Staples of the South would be no longer monopolized by twenty millions of people at the North, but would be competed for by fifty millions in Great Britain and her Colonies, fifty millions in France and her Colonies, forty millions in Spain and her Colonies, forty millions in Austria, and twenty-seven millions in Italy, without regard to Brazil and Mexico. All that the South could raise would not supply her markets; and she would grow to be the richest and most glorious Confederated Republic the world ever saw, upon the ruins of the North. Thus from the thistle danger should we pluck the flower safety, avoid the doctrine of “Uti possidetis,” establish our Independence, preserve Liberty, increase our Wealth and Power, and annihilate our Enemy.
We have said that it is for Texas to accomplish these results. Eighteen months ago a writer in the “Richmond Whig,” foreseeing the time when Texas would probably be called upon thus to act and to assume the Confederate Cause, in discanting upon the aspect of public affairs and the events of the future, thus spoke:
“The Cause of Liberty is never lost. It survives the chain and the dungeon, the axe and the halter. It is immortal. Age, that brings to everything else decay and death, gives to it increase of vigor and perennial youth. Sanctified in heaven it is perpetuated on Earth. Its spirit alone animates to a noble and lofty destiny. With the sword it strikes down the oppressor's rod as the waves of the sea lashed Canute from the Shore. Who shall bid its strong pulsations to cease, or shackle its unconquerable arm? When General Washington was asked what he would do if the British forces should come to possess all of our Cities and the Country bordering the Atlantic Ocean, constituting nearly the whole of the settled portions of the thirteen original States, he unhesitatingly replied, “We shall retire across the Alleghanies and still keep up the War of Independence.” So let it be now asked what shall we do if the Enemy comes to possess himself of our Commercial Marts on the Atlantic and Gulf of Mexico, and maintains occupation of all the adjacent Country, and the instant reply should be, “retire to the frontier lines of Texas with our Armies, and remove into that State our domestic Altars—our men servants and our maid servants—and there defy the World in Arms.”
“This great State, in point of geographical extent, is divided into three parts. Beginning on the shores of the Gulf of Mexico, the first division is a vast Coast Prairie, extending four hundred miles in length, from the Sabine to the Rio Grande, with an average width of forty miles. In addition to the two Rivers mentioned, the Brazos, the Colorado, the Guadalupe, the Trinity, the San Antonio, and the Nueces, make their exit to the Gulf across this region and, within its bounds, their waters may be said to be navigable. The soil is a black alluvial, the deposit of unnumbered ages, formed by the recession of the waters of the Gulf, and for productiveness equal to any in the world. Under full cultivation here alone would be garnered as much Sugar and Cotton as are now produced in all America. The second division extends along the Red River and its Tributaries, covering a space as large as that occupied by either one of the older States, and consists of a soil well adapted to tobacco and the cereals, and favorably comparing with the richest grain growing and tobacco lands of the Earth. The third division, embracing the remainder of the State, in extent from three to four times the magnitude of Tennessee, or Georgia, reposes on the upper waters of the Rivers mentioned, and consist for the most part, of an elevated, rolling and perfectly salubrious Country. There is not to be found a region more productive in the natural grasses than this and, consequently, it is unexcelled for stock-raising purposes.
“Thus is this magnificent domain spread out on the map, beneath a temperate sun and in the midst of a genial clime, a glory and a blessing to the Family of Man, and the eternal abode of Liberty. Capable of maintaining in comfort a population of fifty millions of Inhabitants, the addition of ten millions would only serve to develop its agricultural resources, to give form and refinement to its social system, and strength and beauty to its political Institutions. With a Coast line, through natural advantages, of easy defence, and Vast interior Plains as inhospitable to an invading Enemy as the Steppes of Russia, alike impenetrable and unassailable if properly guarded, here might Freedom repose though surrounded by the wrecks of crushed Republics, and in the midst of the rage and agonies of groaning Kingdoms and Empires. With this Refuge and this Hope abiding with us forever, whether prostrate in defeat, or victoriously erect, let us bravely fight on, confident of reaching, in the end, the radiant goal of honor and Independence.”
With these views and sentiments, constituting Texas the Palladium of Liberty and the Home of Humanity, all will agree. Let us then, from those States oppressed by the Enemy, gather our Wives and our Children within her ample fold; unite our energies and concentrate our Armies in defence of her frontiers; rivet an Alliance with France and Spain; and lead her own People and those of Louisiana, Arkansas and Missouri, together with the entire Confederacy, to victory over the foe and the triumph of our Cause.
Not only are France and Spain interested in the Wellfare of the `Inhabitants' of the Trans-Mississippi Department, but Spain is moreover called upon to assert against the United States the provisions of the Treaty for the purchase of the Floridas, stipulating in favor of the People there no less extensive privileges than those embraced in the Treaty with France. These Stipulations, to preserve which Florida felt herself compelled to secede from the Old Union, the United States have as little regarded as those of the Treaty with France. The Rights of Property and the Rights of Persons, Life, Liberty, Religious privileges, and the pursuit of happiness, are no less desecrated and spurned in the Floridas than in the Louisianas: and it is but reasonable to suppose that Spain will appeal to the fact in taking action with France in behalf of the Confederacy.
The special advantages to be derived to Spain and France from intervening in our behalf, on the basis proposed, apart from the incentives of National honor bound by the Treaties to which reference has been made, would be secured by Commercial arrangements with the Confederate States assuring to them the chief benefits of our Carrying Trade, of our Markets, and in our Raw Materials for Manufactures. And when it is remembered that the products and exchanges of the South, alone, have already given rise to an Export and Import trade of four hundred millions a year, conducted by the North, these advantages bid sufficiently high, in themselves, apart from all other considerations, to induce their interference. Gaining these advantages they would not desire to be complicated in our Domestic Affairs and burthened with our Government, though the `Balance of Power Principle' in Europe should permit it. Similar advantages, but on a much more limited scale, having been secured in Mexico they now cast away the Government on Maximilian. While we, on our part, though restricted in our dealings to these two Nations and their Colonies, which, however, would not be the case, could very well afford to transfer our Shipping and Markets from twenty millions at the North, to ninety millions in France and Spain and their Dependencies, more advanced in Civilization and equally Wealthy. In this age the extension of Commerce and Trade, rather than the pride of Dominion, controls the policy of Nations, makes War and contracts Peace.
In conclusion, Gentlemen, again suffer me to entreat you to view our Status and that of the Enemy, not in the light of our hopes and wishes, but devoid of feeling and with a clear and unprejudiced eye; not for the purpose of generating despondency and abating our exertions, but rather to excite, if possible, to still more vigorous measures and to bring into play more potent agencies. It is true that Texas, as yet, has not felt the oppression of this War at her own doors. It is true that the fire and sword of the Enemy, and the devastation of contending armies, has not yet spread havoc and ruin throughout her borders, as in other States less favourably circumstanced. It is true that heretofore she had been the market of supplies for our Service in Beef and Oxen, horses and mules, adding to her wealth in reality; and that she is now becoming the beneficient granary, and the chief dealer in Cotton, in the line of wants of the Government, receiving much money justly in return. But thousands of her brave Sons have already fallen upon the battlefields of Arkansas, and Louisiana, and Missouri, and Mississippi, and Tennessee, and Kentucky, and Virginia, where the sword has reeked itself in blood; where fire has consumed the family rooftree; where innumerable farms, once verdant in culture, have been ravaged and left desolate; and from whence thousands upon thousands of patriotic hearts beating in the breasts of Southern Wives and Mothers, and grey-haired Sires, and pratling Infancy, have been driven out and exiled sooner than submit to the Invader. From these States the wail of suffering is heard, even now, throughout the length and breadth of Texas, along all of her thoroughfares, appealing not only for an asylum, but for sterner and more effective resistence, and retributive Justice to the foe. Every where the War is pressing upon our subsistance. Every where the War is exhausting our male population; and, I pray God, that its worst calamities, felt elsewhere, may be averted, forever, from Texas. But how is it with the North? Their land is still full of supplies, and still swarms with a superabundant population drawn from the teeming womb of Europe, converting their armies into Hydraheaded Monsters so that as fast as the head of one is crushed in another springs out to avenge its loss and inflict its deadly wounds. The waste of the battle-field is scarcely felt or cared for there. The Commercial, Manufacturing, and Mercantile Classes at the North, wielding the indigent masses of both Hemispheres concentrated there, and controlling the Government to suit themselves, feel not the War save in the increase of their gains through unlimited Army and Navy Contracts for grain, for flour, for sugar, for Coffee, for blankets, for Tents, for clothing, for medicines, for Hospitals and Hospital Stores, for Wagons and Ambulances, for Rail-road and Steamboat Transportation, for military equipments, for ordnance and ordnance stores, for ammunition and arms of all kinds, for Ship-building, for Coal and iron, and all the other means and appliances and requirements of a service that, in itself, has generated with them new and abundant fields of industrial application and profit, in the place of the old channels of occupation and investment subverted by the Civil disturbance in the Country. Their wharfs are still loaded with goods and luxuries drawn from every clime—linnens and silks and broadcloths taking the place of cotton drills and muslins;—and from the Ball Room to the Dining Room still issue the sounds of fulness and of Joy, as of yore. Why should this not be so, when the thunder of battle that has swept through the Confederacy, decimating our People, devastating our Estates, and crimsoning our land with blood, has never struck its wild alarum in their ears, save for an instant on the borders of Pennsylvania, and they only know by telegrahpic dispatches and official reports on paper that battles have been fought? No greater mistake is made by the South than the Supposition that the North is hopelessly suffering from the War, save that other mistake in which we indulge leading to the idea that the War can be made to cease, by our own exertions, without the sacrifice of either Party. It is a war of Annihilation to the one, or to the other, at least in the estimation of the North. The South must be subjugated, or the North must perish, is the only view entertained by the North. To this complexion the issue has come, and to substantiate the South and overthrow the North foreign alliances should be successfully solicited.
In the hope of the speedy accomplishment of these ends I have ventured to address you, Gentlemen; and you will pardon me if I do not condescend to notice the idle rumours afloat as to the object of my visit to Texas. They are alike unworthy of myself, of your attention, and of the sources from whence they emanate. I have approached you unreservedly, and having now performed a duty residing in my Conscience, I shall silently leave the rest to God and the Country.
Believe me to be With the profoundest respect and consideration, Your friend and Servant, John Tyler. October 27, 1863.
The subject of this sketch was born in Oxford county, Maine, October 22, 1809.
He had the usual experiences of a bright, ambitious New England boy. In the intervals of labor on the farm, he attended school near his home and finally entered Bloomfield Academy, and afterwards Waterfield College. His excellent record while at college so won the admiration of an uncle who was practicing law in Mississippi that he was invited to study law and go into partnership with him. In 1832, young Howard left home and went to Mississippi, but upon his arrival there learned that his uncle had just died. He at once began the study of law, was soon admitted to the bar, and began practice at Brandon. He rapidly rose to distinction. In 1836, he was elected a member of the legislature, and, in the same year, was selected to carry the electoral vote of the state to Washington. While in that city, he was married to Catherine Elizabeth Gooch, a native of Massachusetts, and a young lady of rare literary accomplishments. Upon his return to Mississippi, he was appointed reporter of the supreme court, and the eleven volumes of Howard's Mississippi reports attest his industry and capacity. It was during this time that he purchased the Missippian and made it the leading Democratic newspaper of the Southwest. In 1840, he was nominated as the candidate of the Democratic party for a seat in the United States congress and, although he ran 1000 votes ahead of his ticket, he was defeated by his Whig opponent, Governor Tucker.
During his legislative career, the Union Bank monopolized the politics of Mississippi. He voted against the bill by which the state guaranteed the bank's issue, and while he pledged himself to abide by the action of the legislature, he predicted the insolvency of the bank and the repudiation of the state's obligation by the friends of the bill, in the event of its passage, a predic- tion that in a few years came to pass. He was severely criticized by the press, and he as severely retorted through his paper and on the stump. In the midst of public discussion upon the subject, he was chosen by the Democratic party of Mississippi to answer the challenge of Sargeant S. Prentiss to a joint discussion at Jackson. This meeting has ever since been regarded as a famous event in the political history of Mississippi. The partisans of the respective sides both claimed that their champion won the victory, but all admitted that Howard carried his end of the discussion with matchless skill and ability. It was during this stormy period that Hiram G. Runnels, the president and manager of the bank, challenged Howard to fight a duel. The challenge was promptly accepted and the duel was fought at Columbus. Howard was shot, the ball striking a rib and coursing through the breast. As he had predicted, the bank became insolvent and the question of repudiation came before the legislature. This was strenuously opposed by Howard in the most scathing and denunciatory language, but the measure carried, greatly to his disgust. Immediately afterward, he shook the dust of Mississippi politics from his feet and moved to New Orleans, where he again resumed the practice of law.
Mr. Polk having been elected President in 1844, Howard saw the immediate prospect of Texas becoming a state of the Union, and late in December moved with his family to San Antonio, Texas. Within a few months after his arrival he was elected a delegate to the first state constitutional convention and was active and prominent in framing the constitution of 1845. Immediately after organizing the state government, Governor Henderson, on the 27th of February, 1846, appointed Howard attorney general of the state, but he had just previously been elected to the state senate, and declined the appointment.
In 1849, he was elected to represent the western district of Texas in the United States congress to succeed Timothy Pilsbury, also a native of Maine; he was re-elected in 1851 and served out his full term. His addresses before the House in the discussion of the Compromise Measure of 1850 are models of logic, pure diction, and oratory. He omitted no phase of the Texas question, even delving into all the available sources of information on the Texas boundary.
At the expiration of his second term in congress, Howard was appointed by President Pierce United States attorney to the land commission in California, and he went there in that capacity but, after serving a few months, resigned and began the practice of law in San Francisco. There he continued until 1856, when the celebrated vigilance committee was organized. It declared martial law in San Francisco and virtually governed the state at the point of the bayonet. Howard was an uncompromising advocate of the supremacy of the law, and strenuously opposed the policy of the Vigilantes. The governor issued a proclamation ordering them to disband, but they defied his order. He then called out the militia and appointed Howard to command, but the strength of the Vigilantes was too great to be overcome by the militia. The enmity to General Howard in San Francisco resulting from his course prompted him to move to Sacramento in 1858. In 1861, he located in Los Angeles, where he assiduously devoted himself to the practice of law for about ten years. He accepted the office of district attorney several terms; was a member of the convention which framed the present constitution of California; was elected judge of the superior court in 1880; and during his incumbency in that office was nominated to a place on the supreme bench, but declined. His term expired in 1884, when, owing to advancing years and declining strength, he retired, and died in 1885.
In noticing his death, a leading daily newspaper of Los Angeles, said:
With the death of Volney E. Howard passed one of the most distinguished citizens of California and of the Republic. It would be difficult to name an eminent American who has figured at the bar and in the forum during the last fifty years of whom General Howard was not the peer in all the qualities that go to make up a personality of intellectual distinction. As a jurist and constitutional lawyer, he was perhaps without an equal in this state. His oratorical powers were graced by a diction of surpassing purity and style of captivating charm. He was always interesting and at times rose to a height of eloquence which is only reached by the greatest orators. His celebrated speech in the constitutional convention, on the relation of the corporations to the people, was pronounced, by even the very eminent men upon the floor who took issue with him as the most masterly speech of the whole convention. His logic was clear and striking; his sarcasm keen as the edge of Saladin's scimitar; his power of statement luminous and graphic. In terms of epigrammatic sentence he was fertile and even profuse. In impassioned arraignment, especially when his sense of wrong or injustice was aroused, he was withering and overwhelming. He was most dangerous when his expressive lip was curled with a smile and a peculiar sparkle, as if of humor, lurked in his piercing eyes. When in this vein and the occasion called it forth, he was a terror to those who fell athwart the lacerating excoriation of his invective. This country has produced but few men with a more comprehensive or absorbing mind, and none stored with a wider or more judiciously selected range of literature. His memory was one of great strength and tenacity. Whatever he read was stored away, and subject to call when required. No subject, however recondite or complex, had escaped the tireless industry of his research, and he was always ready to invest it with an interest and originality of treatment that stamped him as one whose investigations were accompanied with the penetrating power of the deep thinker.
He was a statesman in the highest sense. A graduate of the Jacksonian schools, he was firm and immovable in his political principles. His party might, in the hands of trimmers and time-servers, veer to the right or left, but he was as true as the needle to the pole.
His courageous nature was incapable of fear and when he knew and felt he was right, his firmness became so fixed in its purpose that no amount of danger could turn him from his course. Had he been more politic, more suave and bending in his character, more flexible to his own personal interests, he might have left his children greater riches as the world goes, but he could not have left them a more lofty and honorable heritage than that which descends to them from his pure and unsullied name and his great and lasting fame.
Such was the man who gave Texas eight years of his most vigorous manhood. The Legislature of Texas, in 1876, gratefully remembered his services and erected a monument to him by naming Howard county in his honor.
Albert Triplett Burnley was born on the 15th day of April, 1800, in Hanover county, Virginia. His grandfather, General Zachariah Burnley, was an officer of the revolution and an intimate friend of General Sumter, of South Carolina. General Burnley was one of three brothers who came to Virginia in the early years of the eighteenth century. One of the brothers, Hardin Burnley, returned to England when hostilities commenced, and remained. His descendants have occupied prominent positions in England; one of them represented that country as the head of the British Embassy at Washington during the Civil War.
Albert's father, William Reuben Burnley, died when Albert was about ten years old, and a few years after, his mother married Judge Nooe, of Alabama, and removed to that State. For some reason my father did not accompany her, but remained with her relatives in Virginia and was brought up by them. He lived first with his uncle, John Richards Triplett, of Richmond, but later with his mother's cousin, Mrs. Charles Smith, of Norfolk, whom he always considered his real mother, and her children as his brothers and sisters.
All these were people of the highest character, and from them he imbibed those principles and standards of honor and integrity which regulated his conduct through life. He had no collegiate education, only the teachings of the best schools the country afforded, but had a fine taste for reading and mental improvement of every kind. Added to this he grew up strikingly handsome and with a grace of manner and distinction of appearance which lasted him through life. I think no Virginian has ever been accused of indifference to his native State, but my father's attachment to Virginia was something particularly deep and romantic. Nevertheless, at the age of twenty-two, he decided to try his fortunes in Kentucky. He brought letters to the prominent men in Frankfort, Hon. J. J. Crittenden, Hon. George M. Bibb and others, and decided to remain in Frankfort and study law with Judge Bibb, who was at that time chief justice of Kentucky.
After a few years, however, finding this slow work, he and his uncle, Robert Triplett, near his own age, bought some coal mines near Owensboro, Kentucky, which they operated successfully for some years. In 1827 he married Frances Ann Bibb, daughter of Judge Bibb, and they lived for some years on a farm near Owensboro, where his interests were.
In 1834, Judge Bibb was appointed first chancellor of Louisville and made my father his deputy, when he removed with his family to Louisville.
I can not remember the exact date of his becoming interested in the struggling Republic of Texas. I think it was greatly through his friendship with General Albert Sidney Johnston, though I recall many names familiar to my childish ears, Colonel Love, Mr. Peter Grayson, General Houston and others. They bought many thousands of acres of land there and took the deepest interest in the welfare of the country. The archives of the State will probably show the date of his appointment as commissioner to negotiate a loan for the Republic. It was probably about 1839, 94 as he was much pleased in England to be presented to the young Queen Victoria, just crowned, though he rather criticised her, allowing the Duke of Wellington to stand during the whole performance in her box at the theater. He thought it would have been more graceful to have invited a person of his age and distinction to be seated. Though this mission was unsuccessful, as was a second one a year later, he flattered himself that he had by his descriptions and representations at least brought Texas to the notice of the great world. He had letters to the prominent people in England, France and Spain, which he presented and was the recipient of much attention. He also in Paris had his fortune told by Madame Le Normand, who had foretold the Empress Josephine of her future grandeur, and was also in England a guest of the celebrated Eglinton Tournament, where Mrs. Norton, the poetess, was crowned “Queen of love and beauty.”
When he returned from his second mission he was accompanied by Senor Fuñez, a relative of the then queen of Spain. Why this gentleman came to America I do not remember, or perhaps never knew, as I was a small child at the time. I think perhaps there was some hope of a loan from Spain, which was never realized. However, he remained for some years in this country and was engaged with my father in a commission business in New Orleans; the style of the firm was A. T. Burnley, Johnson &Co., the royal name appearing only as the company.
In 1842, by father thought of making his home in Texas, and we spent some months in Galveston in the spring of that year, but my mother's health was delicate and conditions very unsettled. I remember my childish terrors as night would come on lest we should be awakened by the bombardment of the city from a Mexican battleship. I feel quite sure now that they had no battleship. During that year we returned to Louisville, Kentucky, my father continuing his business in New Orleans and spending his winters there. Of course, he was much pleased when the annexation of Texas took place. At that time he had a cotton plantation in Brazoria county, Texas, but he soon after removed these interests to Issaquena county, Mississippi. His business in New Orleans prospered for some years, but about the close of the Mexican War they had heavy losses which led to the dissolution of the firm.
When General Taylor was elected president, my father joined with his friend Mr. Alex G. Bullitt, of Louisville, in establishing in Washington, a Whig newspaper, called The Republic, which was the official organ of the administration. When General Taylor died and Mr. Fillmore became President, the same conditions obtained, and in 1850 he removed with his family to Washington. His friend Hon. John J. Crittenden was then attorney general, and, having lost his wife some little time before, lived with us for some years. My father, whose tastes were all in that direction, dispensed a generous hospitality, and the house was the resort of all that was notable, socially and politically, in Washington at that time; Mr. Webster, Mr. Thomas Corwin, General Winfield Scott, General Houston and others were frequent visitors, as also the younger and gayer of the resident society and the diplomatic corps. General Scott received the news of his defeat for president at our house. My father had invited him and a few of his friends to an oyster supper and made arrangements to have the telegrams of the news brought to the house. Of course, they grew more and more discouraging and the last one saying “New York gone Democratic by large majority; accounts look bad from every quarter,” closed the incident. The General, however, received it calmly and said he would sleep as well as he ever had in his life.
In all this my father never forgot his interest in Texas, both financial and friendly. He spent some months there every year, and was also a frequent visitor to his plantation in Mississippi, always doing all in his power for the welfare of his slaves, even to paying a chaplain to give them religious services once a month.
In 1854 he returned to Kentucky, taking up his residence this time in Frankfort. Here he spent some quiet, happy years with his old friends. A part of every winter he spent in Texas or on his plantation, always taking a deep interest in politics for his friends, but entirely without political aspirations for himself.
About the year 1858 his health began to fail and symptoms of tuberculosis developed. All was done that could be done to stay its course. He went for two summers camping on the plains, towards the Red River of the North, and improved a little, but the disease was not so well understood then as now, and progressed steadily for three years. Like almost all Virginians up to the War Proclamation, he was much opposed to secession, though an ardent Southerner in all his feelings. He was very, very weak and reduced, but I well remember his look of distress when the news came of the firing on Fort Sumter. From that time he seemed to take but little interest in anything and sank gradually. On the eleventh of May he received the Holy Communion of the Episcopal Church and soon after lapsed into unconsciousness, breathing his last in the early morning of the thirteenth of May, 1861, surrounded by his family and his oldest and best friends.
There were other mourners besides his family. He had many devoted friends and was himself most loyal and unselfish in his friendships. He was generous to an extreme and no one in need ever applied to him in vain, so far as his means would allow. We found among his papers after his death notes of persons to whom he had loaned money, usually in small sums, amounting to nearly thirty thousand dollars. He was also quite ingenious in devising ways and means of giving pleasure and advantages to some who could not well afford these things. In all transactions where strict integrity and a delicate sense of honor were concerned he was considered authority, and questions were often referred to him in such cases for decision.
Of course, in all his ill health his business interests had suffered and the result of the war destroyed the value of his plantation; but he never knew the worst, and the memory of his blameless life will always be a precious heritage to his children and grandchildren.
My mother, three daughters and one son survived him, but only my sister, Mrs. Crittenden, and myself are now living. His only son, Lieutenant George Bibb Burnley, of the Fourth Kentucky Infantry, C. S. A., was wounded at Shiloh and recovered, but was killed on the second of Janary, 1863, in the famous charge of Breckenridge's Division at the battle of Murfreesboro, gallantly fighting for the Southern Cause.
[The autograph letter printed below is found among the Lamar Papers. At the time when it was written, the writer, Peter W. Grayson, was attorney general, and M. B. Lamar, the recipient, was vice-president of the Republic of Texas.
“The Prison Journal of Stephen F. Austin,” printed in The Quarterly, II, 183-210, presents a narrative of his movements from December 10, 1833, to February 13, 1834, the date on which he was placed in the Exinquisition prison, and of his life in that prison from February 13 to April 29, 1834. The Journal ceases abruptly on the latter date, although Austin continued in the same prison until June 12, 1834. Additional information concerning himself while in prison is found in a letter which he wrote to James F. Perry, August 25, 1834. It is printed in Edward, History of Texas, 211-220. The important features of the letter below are: (1) the light it sheds upon the efforts of the colonists to comfort and aid Austin; (2) the nature of the evidence put forward against Austin by the prosecution, and (3) the statement of the successive steps in his release from prison and his final liberation and return home.—E. W. W.]
PETER W. GRAYSON TO MIRABEAU B. LAMAR
Columbia [Texas] Feby 14 1837 Dr Sir
The request you have made of me to give you some account of the imprisonment in Mexico of our lamented fellow citizen Genl Stephen F. Austin with the circumstances attending it as I had occasion to observe them, during my stay there with him, I take the first leisure to comply with, assuring you that it gives me much satisfaction to furnish all the little information in my power with respect to the interesting life of the individual whose late untimely death 95 we have all been left to deplore. I may in passing take this occasion to express to you the pleasure I felt on learning your determination to collect and throw into the form of biography the many interesting incidents connected with the first settlement of Texas, and its various succeeding interests, in all of which the deceased is known to have borne so conspicuous a part. 96 For such an undertaking the present seems plainly to be the most propitious time that could have been chosen,—as there are many persons yet living among us, from whom information of the greatest value for your purpose may now be derived and whom a few years of the ordinary course of Nature may remove beyond the reach of enquiry. I may add, too, in support of your undertaking an assurance I feel of the interest its successful execution can not fail to excite in all minds that have a relish for the achievements of enterprise and a turn to contemplate with curiosity and pleasure the rude beginnings of infant settlements—their progressive improvements, and final advance to the condition of States.
As you are no doubt well informed of the circumstances which called the subject of the Life you are writing to the City of Mexico, with his long stay there, on the business of his mission—its unsuccessful termination, and the cause of his subsequent arrest at Saltillo, on his way home, it will be unnecessary for me to go into any detail of these particulars—my purpose being merely to give you in this account what I know of the treatment he received, from the time of his arrest at Saltillo up to the time of his final release in Mexico.
As he informed me, on the occasion of his arrest, which I think took place some time in Jany 97 1834, he was unable to learn from any source whatever, the particular cause which had led to so unexpected a procedure and was consequently left to conjecture merely what it might be. The officer, who came to take custody of his person, could only inform him that he was acting in obedience to the orders of the Vice President, Farias, then Acting President of the Republic, which, as he said, were to conduct him back to Mexico and deliver him over to the authorities there. This was accordingly done after a journey of some twenty-five days, over a distance of about 700 miles, passing somewhat out of the direct way to Mexico.
On his arrival there, 98 he was taken to the famous prison of the Exinquisition, in front of which he sat upon his horse for some time, 100exposed to the gaze of the multitude in the street, awaiting the despatch of orders for his admission into one of the cells of that gloomy edifice. He was presently delivered over to one of the officers of the prison, and conducted through many dark and winding passages to an interior apartment which, he was informed, had been appropriated to receive him. It was a room without any other light than that which came in from above, through an aperture, which was kept open, only for a few hours during the day. 99 Here he remained for three months in solitary confinement, without books, writing materials or any other means being allowed him, to relieve the tedium of existence through the dull hours of captivity. His only employment as he informed me, during the few hours of light, he was permitted to enjoy during the day, was to draw with a fire coal upon the wall, as well as he could, rude outlines of interesting landscapes he remembered to have seen, and now and then, with his penknife and a few sticks putting together rough models of whatever came into his head of easy imitation.
During all this time no intimation was made to him of the cause of his confinement, or of any formal prosecution going on against him, for the offence he might be supposed to have committed. At the end of the time before mentioned, Sant Anna coming up to Mexico, and resuming the reins of Government issued an order for his removal from the prison of the Exinquisition and transfer to another (the Acordada) in a different part of of the City. Here he was placed 99 in an apartment which was comparatively comfortable, having for society a fellow prisoner, and enjoying the further privilege of communication with his friends and such other persons as might choose to call and visit him. Without any material change such continued to be his condition for many months—in which time he wrote to his friends in Texas a few letters giving some account of the circumstances of his confinement, in mild and uncomplaining terms, particularly requesting that there should be no excitement got up among the people on his account, but, on the contrary, that all should await patiently and tranquilly the disposition of the Government, upon his case, which he appeared to think with tolerable confidence, would soon have a favorable termination. Such was in substance the character of the first few letters he addressed to his friends about this time; but there was one which came into my hands, about the last of July of the year '34 in which though he expressed no particular impatience or distress at his condition, seemed, I thought, to breathe a kind of suppressed feeling of mortification, that he had been permitted to remain so long in prison, and among strangers, without receiving any notices of kindness from his friends or manifestations of interest for his fate. This it must be owned was a natural feeling for him to entertain, and yet it is but justice to the people of Texas, to say that they had been lulled into this inactivity and apparent indifference, through the influence of his advice, which recommended mildness and forbearance on their part.
It was this letter which determined me to make the offer to his friends of my service of going on to Mexico, and bearing to him the consolations of our personal sympathy at least, if no other good;—Mr. Spencer H. Jack who was present agreeing to accompany me. It happened about that time that Colo[nel] Almonte, now so well known to the people of Texas, was passing through the country in the character of a Commissioner, principally no doubt to observe and report upon the apparent dispositions of the people, toward the Government of their adoption. This it is natural to suppose was the object, since we knew that he was despatched from Mexico, about the time of Genl. Austin's arrest at Saltillo, which was no doubt predicated upon suspicions that were entertained of his loyalty and future intentions, the letter 101 which he wrote from Mexico—under date of Oct. [2] '33 to the Ayuntamiento of Bejar recommending the organization of a State Government, without the consent of the general congress, having been interpreted by the rules of Spanish logic, as meaning no less than a move for Independence. I took at the time the first opportunity to solicit a conversation with Colo[nel] Almonte, on the subject of Gen. Austin's imprisonment—the causes of it, and the probabilities of his release. He frankly acknowledged to me that he saw no sufficient reason for his longer detention; and on my telling him that I thought of going on to Mexico, with a view to do all the little in my power toward effecting his release, he gave it to me as his opinion that such exertions would have a favorable effect, and that for his part, on his arrival at Mexico, he would cheerfully co-operate to the same end;—a pledge which it is proper I should acknowledge he faithfully redeemed. In a few days thereafter, Mr. Jack and myself accordingly set out for Mexico, taking with us addresses to the President Sant Anna from the various Ayuntamientos of Texas, soliciting the release of our fellow citizen. Passing through Monclova, then the seat of Government of the State of Coahuila and Texas, we obtained through the influence of Don Juan Padilla, a known and well tried friend of the Colonists, at the time Secretary of State, an urgent address from the Governor, to the President, to the same effect.
On our arrival at Mexico, which we reached on the 15th of October, we laid those various addresses before his Excellency Genl. Sant Anna.
On enquiring for our friend Genl. Austin, we found that he had now been removed to still another prison of the City—where his condition was in no material respect different, from what it had been in the one he had last left. We had no difficulty in procuring admittance to the room in which he was confined; with some three other prisoners who were Mexicans.
The delight he experienced on seeing us may be more easily imagined than described, as he was now convinced that there was at least some sympathy felt for his condition, on the part of those from whom he had naturally a right to expect it, however poor might be the prospect of any relief at their hands. After much conversation on various matters, I asked him to inform me what was the nature of the charge or prosecution against him, and what the law, which it was said he had offended. He replied . . . 102 that on that subject he was as entirely uninformed as myself, that he had not seen an official paper of any kind whatever relating to his case, and that he merely supposed, his letter to the Ayuntamiento of Bexar, before referred to, had been the cause of the proceeding against him. It is worth while to observe that he had now been confined about 9 months.
The first thing we thought it most prudent to attempt was merely to procure his release on bail. This could only be effected by the exertion of personal influence with the Judge, before whom his case was now in some sort pending, jurisdiction of it having been declined previously, as I understood, by one or two functionaries of that class. 103 It is needless to detail here, the various efforts that were made to influence the Judge to grant bail to the prisoner. Whilst these means were being employed, the papers of the cause as it was called, we[re] brought and delivered to the accused in compliance with the form usually observed in such matters.
On examination they were found to be a huge mass of documents, if indeed such stuff deserved the name, a great part of which purported to be evidence. Much of this evidence, to our surprise we saw consisted of floating and indefinite rumors that had been reduced to writing and thus made to assume a more imposing form. Among other things of this sort, I remember there was a letter, which had been written by an unknown writer at Matagorda, during the time of Genl. Austin's confinement, to the Editor of a newspaper in New Orleans in allusion to his case, as connected with the affairs of Texas generally—now formally translated into Spanish and made to cut a serious figure in the prosecution. Of a character in no degree more relevant, was all the rest of the evidence which came under my observation.
We looked in vain for any paper in the nature of an Indictment, which might present the precise form and substance of the accusation. Everything was left to be guessed at and gathered, as one best might, from the chaos of papers such as I have described them. Which had all been manufactured, in the spirit of the Inquisition, entirely ex parte.
The cause however had been thus sent to the prisoner, that he might be enabled to make out his answer or Defense. This he employed an Advocate to do for him—it was accordingly done—and as I think in a very able manner.
Of this Gentleman who was an advocate of much note in the City I remember we enquired the Law upon which the prosecution was proceeding. He frankly told us that he did not know it himself; remarking that neither he or any one else could say with any certainty what was Law in Mexico either in civil or criminal matters—that a Congress, shortly after the close of the revolution, had passed a statute declaring that all laws previously in force, which were inconsistent with a republican form of Government were thereby repealed, whilst all that were not so, should continue in force.
It is easy to conceive the uncertainty of practice, necessarily attending so undefined a state of the Law as this.
Through all this uncertainty however, and after much delay, bail was granted upon high security on the 25th December and the accused set at liberty within the bounds of the City.
He who was accepted as security was a wealthy Mexican of the City, by the name of Pascual Villar. The American Consul Doctr. Parrot generously offered his name which was however not required.
The discharge on bail, we were disposed to regard in substance as an acquittal;—in a country where mere rumor and suspicion stand in the place of legitimate evidence, and imprisonment for an indefinite period, at the pleasure of the Government, is the only means relied upon for securing the person of any one they expect to punish.
These things wore a startling and monstrous appearance to us who have been accustomed to see criminal law administered with so much indulgence to supposed guilt; everything previous to trial being done on the liberal presumption of innocence till the contrary appears; whilst in Mexico, the opposition presumption prevails, and the party is taken for guilty until he proves his innocence. Such a proceeding as that under our Habeas Corpus, being so entirely at war with the whole spirit of their Criminal Jurisprudence, has of course never been dreamed of.
To my mind all their proceedings in criminal matters at least, bear evidently the stamp of the Inquisition which in Spain [?], upon mere rumor or suspicion no matter how vague or irrelevant, was in the practice of carrying on the greatest prosecutions by ex parte management, in the absence of the accused—oftentimes whilst he was pining in prison, ignorant of all that was going on against him.
From a Government deformed with such a system of Laws as this I have here given you a notion of, it has been our fortune to separate; a consideration which should incline us all I think to bear with the greater patience, the inconveniences and ills, which our new condition may bring upon us.
A few more words will suffice to close this account. Immediately after Genl. Austin's discharge on bail, suitable efforts were made to bring the cause to a final hearing, but this could by no means be effected; as the Judge fearing, no doubt the imputation of partiality to foreigners, and thinking perhaps he had already done enough for Justice, declined for the time, any further action on the matter.
It happened fortunately about this time, that the Congress of the Nation convened 104—and passed after a discussion and delay of some months an Amnesty Bill as it was called: which had the effect of doing away all political offenses that had been or were supposed to have been committed up to a given period. In the meanwhile Genl. Austin had written a clear and lengthy exposition 105 of the affairs of Texas, in which he successfully vindicated not only his own motives and conduct but those also of his fellow citizens the Colonists. This Exposition was printed in pamphlet form, and distributed among the members of Congress and most other dignitaries of the Government. It made I do not doubt, a very favorable impression; as, when the Amnesty Bill came out, there was no exception in it as to him.
The consequence was that after a good deal more perplexity with the Judge, he obtained his complete discharge, which took place I think some time in June, following his liberation on bail.
Soon after this, providing himself with a passport he took the stage from Mexico, to return home by the way of Vera Cruz. Arriving at the latter place, he encountered a new, and unexpected difficulty, from the Commandant of the military there, who peremptorily informed him that he could not yet be permitted to leave the country. That officer persisting in his arbitrary position, Genl. Austin made a visit to the President Sant Anna, who was then at his Hacienda about five leagues distant from Vera Cruz, and representing to him the obstruction offered to his departure, obtained from him a peremptory order to the Commandant, to permit his free egress from the country.
This difficulty being removed, he immediately went on board a vessel bound for N. Orleans where he arrived some time about the 10th of August—and where, happening to be myself at the time I had the pleasure of meeting him.
I can not conclude this account without bearing testimony to the extraordinary patience and forbearance with which he endured the long delays—vexations and sufferings which attended him during his stay in Mexico. He seemed, by a great effort to have formed his mind to the necessity of his condition, in so much that during all the time I spent with him, which was near four months, I do not remember to have heard him use an intemperate expression of any kind with respect to any person or circumstance connected with his imprisonment. As I was in the habit of visiting him in prison, daily, I had the best opportunity of observing the amiable character of his disposition—as well as his unexampled patience and fortitude.
From what I have here written hastily and imperfectly I hope you will be able to extract enough for the purpose you have in view.
Very respectfully, Yr Obt Servt. P. W. Grayson. The Honble. M. B. Lamar.
NOTES AND FRAGMENTS.
Records of the Mission of Nuestra Senora del Refugio.— It has been supposed by writers that the mission of Nuestra Señora del Refugio, more commonly called the mission of Refugio, situated near Copano Bay, Texas, ceased to exist as an active mission as early as 1812. But the discovery of two original record books of this mission in the archives of the parish church of Matamoros, Tamaulipas, shows that this supposition is incorrect, and that, on the contrary, the mission continued in operation, till 1828.
One of the books referred to is a record of baptisms from 1807 to 1828, while the other is a record of burials from 1807 to 1825. They are bound in leather and are in a good state of preservation. The tradition is that they were taken to Matamoros during the Texas revolution, which is an altogether plausible explanation when we know from positive evidence that important secular records were taken there from Goliad at that time. It is not improbable that the reason why they have remained at Matamoros till the present is that it has been erroneously supposed, through a confusion of names, that they related to the parish church where they are preserved, whose early name was Nuestra Señora del Refugio de los Esteros, or, more commonly, Nuestra Señora del Refugio.
The cover-title of the book of baptisms is “Libro No. 2. 1807. Bautismos. Confirmaciones del Año 1868.” The inside, and correct, title is “Libro II de Bautism[o]s Hechos en la Mision de Ntra. Sra. del Refugio de la Bahia Desde el año de 1807.” The record shows 214 baptisms, the earliest being April 21, 1807, and the latest February 21, 1828. A number of the persons baptised were Spaniards. A note on folio 35 states that “all of the baptisms made after the ninth of July, 1824, were performed at the Parochial Church (la Parroquia) of la Bahia, because the Minister could not remain in the Mission, on account of the hostilities of the Comanches.” The implication is plain that up to July 9, 1824, the mission activities were conducted at Refugio, and that thereafter until February, 1828, the mission continued to exist, but that its functions were performed at Bahia (Goliad). The cause of the abandonment is seen to be the Comanche depredations. Baptisms are shown for every year except 1826. The average number for the twenty-one years was slightly more than ten per year. The period of greatest activity was between 1808 and 1819, when the average was about fifteen baptisms per year.
Lest it be supposed that the persons baptized were all children of survivors of a long dead mission, it may be noted that a considerable percentage up to the last were children of “gentiles,” fresh from the woods. The tribes represented were the Carancahuases, Pihuiques (Piguiques), Copanes, Huapites (Coapites), Pamaques, Cujanes, Malaguites, (Malaquites, Malahuites), Pajalaches, Tobosos, Cocos, Xaranames (from the mission of Espíritu Santo), and Lipanes.
The title on the cover of the book of burials is, strangely enough, “Entierros, Mision Mision (sic) de Ntro. Padre Sor. S. José de Camargo. XX. No. 4.” The inside, and correct, title is “Libro II De Entierros. Hechos en la Mision de Ntra. Sra. del Refugio de la Bahia Desde el año de 1807.” It contains 157 entries, between May 16, 1807, and Nov. 18, 1825. A number of these, as of the baptisms, were of Spaniards. When we note that twenty-seven of the one hundred and seven, or one-fourth, of the persons buried during the last eleven years were killed by the Indians, we can understand that Indian depredations furnished a sufficient reason for deserting the unprotected mission. Fifteen of these twenty-seven, buried in 1814 all at one time, were persons killed at Rancho Diexmero, on the Nueces.
From the signatures affixed to the records we learn the names of the missionaries in charge of the congregation during the period covered. Most of the baptisms and burials between 1807 and 1817 were performed by Fray José Manuel Gaitán, “minister of this mission of Ntra. Sra. del Refugio.” Fray Juan Maria Sepulveda signed entries in 1810 and 1811. An entry shows that this father died and was himself buried at Refugio on June 28, 1815. At the time of his death he was minister of the mision of Espíritu Santo de Zuñiga, and was about thirty-four years of age. In 1817 and 1818 some of the entries were signed by Fray Antonio José Diaz De León. After 1818 all of the entries were signed by Fray Miguel Muñoz.
These brief notes have been prepared from much fuller ones with the hope that they may supply welcome information regarding the little known Refugio mission at the same time that they bring to light these precious records of the Old Regime. It will be observed that each of the books is No. II of a series. The earlier ones, covering the period from 1791, when the mission was established, to 1807, were not found.
Herbert E. Bolton.
Imanuel Frederick Gibenrath, the German Drummer of Goliad.—[The following sketch appeared in the Houston Post of July 31, 1910.] When volunteers were being enlisted in Kentucky during the fall of 1835 for the assistance of the Texans in their revolt against Mexico there was in the city of Louisville a young German named Imanuel Frederick Gibenrath. The place which gave him birth was Wittenberg, and there he had left his wife, two little girls, the younger still in infancy, when, a few years before, he had emigrated to America, the land of promise.
Having landed first at Baltimore, he there made acquaintances and friends, but the spirit of adventure beckoned him toward the West, and in the city of Louisville, Kentucky, he found profitable employment in a factory. He was eagerly looking forward to the time when his earnings would permit him to send for his family to join him. But a call was made for volunteers to aid the liberty-loving Texans, a vision of a fairer land arose before him, his martial spirit took fire, he had served in the army of his fatherland as a drummer boy, and his skill with the flying sticks now did good service in calling together volunteers. He joined one of the companies and marched with his young comrades to Texas. How the merry music of his drum quickened their steps on the long and tedious march, how its rumblings and bellowings seemed to tell of coming battle and its thrilling reverberations sounded the note of certain victory!
History tells us nothing of his adventures on the way, whether he entertained hopes or fears, but we find on one of its bloodiest pages the record that among the dead who were massacred with Fannin at La Bahia on that memorable Palm Sunday, 1836, was Frederick Gibenrath, a member of Captain Peyton S. Wyatt's company, Oliver Smith in command.
How brief the record of many a gallant soldier's fate: “Dead on the field of honor.”
In the city of Goliad, in Fannin Park, there stands a noble marble shaft; on the north side is engraved the battle cry of San Jacinto, “Remember the Alamo! Remember Goliad!” on the west, “Independence declared March 2, A. D. 1836, consummated April 21, A. D. 1836”; on the south, “Fannin; erected in memory of Fannin and his comrades”; and on the east, “Massacred March 27, A. D. 1836.” It forms at once an epitome of history, and the epitaph of the German drummer and his companions, whose bodies, after lying for more than two months unburied, were deposited with military honors near the old mission church of La Bahia.
When the widow of Imanuel Frederick Gibenrath, with her two children, reached Texas in 1839, she met and talked with men who told her particulars of the last days of her husband. One said that Gibenrath foresaw that the Mexicans were deceiving the Texans, and told his comrades that they were going to be butchered instead of being paroled, as they had been led to believe. Among articles picked up on the field of slaughter were pieces of brass bands of the drum of the German drummer, which were given to his widow and cherished by her as a precious memento.
After her husband's death, Mrs. Gibenrath, whose maiden name was Christina Johanna Hildwein, was married to John Frederick Hassmann, and she died in Houston many years ago. Her two children, daughters of Gibenrath, grew to womanhood, and the elder, Rosanna Balistier, died in New Orleans at the Little Sisters of the Poor, an institution which she had assisted in founding; the other, Katharine Gibenrath Hooker, now in her eighty-first year, lives in Houston at the home of her grandson, George Allien.
Mrs. Hooker was married four times; her first husband was Frank B. Allien, the father of Captain Fred Allien, a well known citizen living at Morgan's Point.
Mrs. Hooker has passed through many thrilling scenes. Living in New Orleans during the war between the States, she was under military surveillance while the Federals were in possession, and her ardent Southern feeling subjected her to danger of arrest on several occasions. Her familiarity with four languages, German, English, French and Spanish, combined with her ready wit, enabled her to extricate herself from severely trying situations at this period.
She is still strong and lively in spite of her four score years; her life has been full of good work; many a sick bed has she tended; many a helpless orphan has she soothed and cared for; after all the trials of her long and varied life she still wears a cheerful smile, and her heart beats in sympathy with the young and hopeful. As the daughter of a man who gave his life for Texas, and the widow of Mr. Hooker, a Confederate soldier, she is identified with two important epochs of this country's history. Scores of family letters written in German and yellow with age, which she carefully treasures, tell of the Gibenraths and the Hildweins for many generations away back in Suabia, but her pride centers on the Gibenrath, her father, who was one of “Fannin's men” and a Texan.
Adele B. Looscan.
Professor John A. Lomax, of the University of Texas, is collecting Folk-Songs of the United States, and would appreciate assistance from members of the Historical Association. “Whenever,” says Professor Lomax, “people, from whatever cause, live for a time in primitive isolation they make songs that reflect the feelings of the whole community. Such songs also spring up from groups of unlettered men following a particular occupation, especially one that calls for supreme physical effort. In most cases the authorship can be traced to no one person. The songs are perhaps rarely written out, and less seldom find their way into print. They are often crude in form and matter, sometimes vulgar, but always interesting as a reflection of the intimate life of the people. These are the Folk-Songs, either handed down by `word of mouth' from generation to generation, or entirely submerged in the rush of progress or lost through the dominion of the newspaper.”
Types of the ballad in which he is interested are the lumber songs of the Northern forests, sailor songs, mining songs, army songs, fishing songs, cowboy songs, negro songs, etc., etc. He has already more than a hundred cowboy songs, and thinks that his collection is far from complete.
Professor Lomax particularly desires information concerning the romance of “Mustang Gray,” and wishes to complete the Texas revolutionary balled which begins: To Houston at Gonzales town Ride, Ranger, for your life; Nor stop nor stay This day to say Good-bye to child or wife.
Judge Z. T. Fulmore, whose sketch of General Volney E. Howard appears in this number of The Quarterly, is preparing a volume, which will be published during the winter by Rand, McNally &Company, giving in compendious form the history of the county names of Texas.
Mrs. Adele B. Looscan is preparing for The Quarterly a history of Harris county. It will be based largely on the records in the country clerk's office. This is an important phase of local history, and it is to be hoped that other members of the Association will take up the work in their own counties.
AFFAIRS OF THE ASSOCIATION.
The passing of Dr. George Pierce Garrison, the senior member of the Faculty of the University of Texas and head of the Department of History, is one of the severest losses that the state of Texas could have sustained. He was equipped by nature for the wonderful study of history. He was broad-minded, liberal, understanding personal values, at the same time sympathetic and keenly observant.
As the author of several volumes on various periods of American history, of a most attractive and resourceful volume “Texas”; as editor of two large volumes of the “Diplomatic Correspondence of the Republic of Texas,” and as an explorer of the archives of Mexico and of Texas, he has contributed to our historical treasures as no teacher or student before him has done. He was the leading spirit of the Texas State Historical Association and editor of The Quarterly.
He was an excellent judge of human nature—an indispensable quality in the successful teacher—making due allowance for all of its frailties, as well as giving full appreciation for its strength.
Few men in the South were as well prepared from the stand-point of scholarship. His educational opportunity in this country and in Europe was of the best, and he held high place in the estimates of his fellow educators.
In the class-room his dignity, quiet reserve, but positive interest in each individual student, impressed every member of the class with the feeling that his privilege to be present in that particular class on that particular day was a very valuable one. Always genuine, full of a kind understanding of the overzealous student, or the one of passive interests, he made his presence felt and remembered.
His students, as they passed from his class-room, kept their places in his affectionate regard, and his interest followed them wherever their duties called. Busy as he was, he constantly assisted the absent ones who were inclined to follow up historical work after leaving the University.
He was a blessing and a strength, and well may the hundreds of students of the University of Texas place a memorial to their dear friend. Let those men and women who have profited by his training honor themselves by expressing their appreciation of him in some noble, substantial form.
I am grateful for the opportunity to have been his student, to have followed his wise guidance, and to have enjoyed his friendship.
Such lives do not end, for such service as he gave is eternal, and the good which he accomplished will be felt by the uncounted hundreds, who, in the years to come, will have the advantage of studying history in our University. The direction which he gave to this department will be felt every day that the University exists.
Katie Daffan.
2. Reconstruction Journal, 1868, p. 47; the San Antonio Daily Herald, June 11, December 22 and 29, 1868; Flake's Daily Bulletin, August 27, 1868; message of Governor Davis, January 14, 1873.
3. The San Antonio Daily Herald, September 6, 1871.
4. Report of Committee on Asylums, House Journal, 14th Legislature, p. 14; report of Committee on Public Buildings. Ibid., p. 161.
5. Ramsdell, Reconstruction in Texas, 302, 312.
6. Report of Committee on Judiciary, House Journal, 11th Legislature, p. 733.
7. Act of August 5, 1870, Section 10. Gammel, Laws of Texas, V, 606.
8. House Journal, 12th Legislature, p. 1688.
9. House Journal, 12th Legislature, p. 881.
10. Bledsoe v. the International Railroad Company, 40 Tex., 537.
11. Bledsoe v. the International Railroad Company, 40 Tex., 537; message of Governor Coke, January 12, 1875; the San Atonio Daily Herald, October 4 and 20, and November 24, 1870; the Houston Daily Telegraph, February 23 and October 19, 1871.
12. Clippings from the State Gazette and Flake's Bulletin in the San Antonio Daily Herald, September 27 and October 20, 1870.
13. Ramsdell, Reconstruction in Texas, 318.
14. See Appendix B, page 112.
15. Comptroller's report, 1868-9, p. 4. In 1870 defaulting and delinquent officers were due the State $350,000. Comptroller's Report, 1870, p. 20.
16. Acting-Provisional Comptroller's Report, 1866; Comptroller's Report, 1868-9, p. 7; message of Governor Coke, April 19, 1876.
17. Comptroller's Report, 1874, p. 3.
18. Comptroller's Report, 1868-9, p. 110.
19. Message of Governor Davis, January 10, 1871.
20. The San Antonio Daily Herald, April 9, 1868, November 18, 22, 26, and December 22, 1870.
21. Proceedings of the Taxpayers' Convention, Austin, 1871, p. 22. See also Clegg v. the State, 42 Tex., 605.
22. Census of 1870, Vol. III; message of Governor Davis, January 14, 1873.
23. Proceedings of the Taxpayers' Convention, Austin, 1871, pp. 5-8; the Houston Daily Telegraph, August 13, 25, September 5, 8, 19, 20, 1871; the San Antonio Daily Herald, September 26 and 27, 1871; the Austin Democratic Statesman, September 23 and 26, 1871.
24. The Austin Daily Journal, September 21, 1871, et passim.
25. Gammel, Laws of Texas, V, 891.
26. Gammel, Laws of Texas, V, 1175.
27. House Executive Document, No. 159. Forty-ninth Congress, Second Session; Dunbar, “The Direct Tax of 1861,” in Quarterly Journal of Economics, III, 450, 453; the Southern Intelligencer, May 10 and June 7, 1866. By the act of Congress of March 2, 1891, refunding the direct tax, Texas received $180,886.72. This amount was held in trust for, and distributed to, those who paid or their heirs, until March 2, 1897, when the balance of $66,197.89 reverted to the general treasury of the state.
28. 51 Cong., 1 Sess., House Report, No. 683.
29. House Journal, 11th Legislature, Regular Session, p. 79.
30. Gammel, Laws of Texas, V, 1009.
31. Act of November 10, 1866, Gammel, Laws of Texas, V, 1058. See Millar v. Douglass, 42 Tex., 288.
32. Comptroller's Report, 1868-9. Income tax assessed in 1867, $38,892; salary tax assessed in 1867, $1186; ad valorem and poll taxes assessed in 1867, $354,418; income tax assessed in 1868, $14,600; salary tax assessed in 1868, $1086; ad valorem and poll taxes assessed in 1868, $310,626; per cent of income and salary taxes to total assessed taxes in 1867, 10; in 1868, 4.8.
33. Comptroller's Report, 1874, p. 56.
34. Gammel, Laws of Texas, VI, 373, 390.
35. Message of Governor Davis, April 24, 1871. House Journal, 12th Legislature, Second Session, p. 1198.
36. Message of Governor Davis, November 28, 1871. Senate Journal, 12th Legislature, Second Session, p. 466.
37. Act of December 1, 1871. Gammel, Laws of Texas, VII, 57.
38. Message of Governor Davis, January 14, 1873. House Journal, 13th Legislature, p. 20.
39. Census of 1870, Vol. I; Comptroller's Report, 1870, p. 85.
40. Proceedings of the Tax-payers' Convention, Austin, 1871, pp. 17, 22 and 27; Kinney v. Zimpleman, 36 Tex., 554. See also Clegg v. the State, 42 Tex., 605.
41. Comptroller's Report, 1868-9.
42. Gammel, Laws of Texas, VI, 58, 89, 47 and 48.
43. Comptroller's Report, 1871.
44. Gammel, Laws of Texas, VI, 58, 89 and 325.
45. Message of Governor Davis, August 6, 1870.
46. Veto message of May 29, 1871.
47. The San Antonio Daily Herald, April 14, 1871.
48. House Journal, 14th Legislature, p. 119.
49. Gammel, Laws of Texas, V, 887, 900.
50. Ramsdell, Reconstruction in Texas, 102.
51. Convention Journal, 1866, p. 117; House Journal, 11th Legislature, p. 193.
52. Gammel, Laws of Texas, V, 1126; Comptroller's Report, 1870.
53. Comptroller's Report, 1868-9, p. 1; Comptroller's Report, 1870, p. 8.
54. Comptroller's Report, 1870, 10.
55. Act of May 2, 1871, Gammel, Laws of Texas, VI, 969.
56. House Journal, 12th Legislature, Second Session, p. 66.
57. Gammel, Laws of Texas, VII, 27.
58. Comptroller's Report, 1874, p. 77.
59. Gammel, Laws of Texas, VI, 219. These are known as the frontier defence bonds.
60. The San Antonio Daily Herald, September 7, 1870.
61. Statement of the Comptroller. House Journal, 16th Legislature, First Session, p. 79.
62. Gammel, Laws of Texas, VI, 1008; VII, 65.
63. Gammel, Laws of Texas, VII, 571.
64. House Journal, 16th Legislature, First Session, p. 79.
65. Message of Governor Coke, February 10, 1874. Warrants outstanding on the general revenue fund amounted on August 31, 1872, to $544,745.24; on August 31, 1873, to $679,404.83; on August 31, 1874, to $628,370.23, and warrants outstanding on the school fund at the latter date amounted to $104,577.74.
66. House Journal, 12th Legislature, Second Session, p. 435; message of Governor Davis, January 14, 1873; message of Governor Coke, February 10, 1874.
67. Act of March 7, 1874. Gammel, Laws of Texas, VIII, 241.
68. House Journal, 13th Legislature, p. 34.
69. House Journal, 13th Legislature, p. 27.
70. The foregoing account of Lamar's remark on Capitol hill may seem to have the odor of romance; but there are still living in Austin a few persons who knew Mr. Fontaine. I never had cause to doubt his veracity. Both James O. Rice and Willis Avery verified to me all the incidents of the buffalo hunt, except Lamar's remark about “the seat of future Empire.”
71. When in 1858 or 1859 the title to the eight leagues of land granted by the King of Spain to San Antonio was tried before me as judge in San Antonio, the annual visitations of the Missions across the continent was revealed in the testimony. Navarro and Manchaca, then old men, remembered seeing the annual arrival of the priests.
72. The early Spanish grants to land in Travis and Hays counties made before 1836 often called for the San Antonio road in the field notes. It crossed the Blanco at McGehee's Crossing.
73. The Acts of Congress and action under them to select a seat of government have been carefully reviewed by Ernest William Winkler, A. M., in The Quarterly, X, 185-245.
74. House Journal, Second Congress, 38-39.
75. The full account of that banquet was published by our State Librarian, E. W. Winkler, in The Quarterly, X, 185-245.
76. John Darlington, who still lives, hauled the logs from there. The stumps of the old trees could be seen when our mile race track was there before the Civil War.
77. The studding in all the frame buildings was made of small post oak saplings hewed to a straight line on one side. The sills and joists were usually of white cedar from the mountains or post oak, hewed to a straight edge with the broadaxe.
78. When in Jerusalem in 1895 I noticed that the stone in the quarry under the city from which Solomon obtained the stone for the Temple was identical with that used in that Treasury building in Austin, and that the broad leaf prickly pear was abundant just outside of the walls to the right of the Jaffa Gate. I thought then of Texas and that since the Savior had selected such a place as Jerusalem to teach and suffer in, even here in Texas one might indulge hope for the future.
79. Judge John H. Reagan estimated at less than 6000, the number of Texas men in 1836.
80. White's four daughters married Seiders, Enoch Johnson, Greenleaf Fisk (after whom Fiskville was named), Enoch Martin and one Thompson.
81. He was a brother of General Burleson. His son Jacob was born after his father was killed, and was a lieutenant in my regiment during the Civil war. He is now an inmate of the Confederate Home in Austin.
82. Darlington went with troops under General Ed. Burleson over the trail in 1842 and he says that there was not a house on it.
83. This incident I had from James O. Rice and Steele Mathews, now dead, as nearly all are now dead who then lived in Austin, and also from Frank Brown, who still lives in Austin.
84. Mark Lewis and two other men were afterwards killed in a fight on election day on Sixth Street in a house that stood where the State National Bank now is.
85. Darlington now states it, and I heard it from other old settlers.
86. Lubbock, Six Decades in Texas, 511; Richardson, Messages and Papers of the Confederacy, II, 334-337, 389.
87. Price had just been driven out of Little Rock into Southern Arkansas by General Steele.
88. War of Rebellion Records, Series I, Vol. XXII, Pt. II, pp. 993, 1003-1010.
89. Lubbock, Six Decades, pp. 313-314, note.
90. It is interesting to note that attention was called to the treaty of 1803 in March, 1862, by Governor Pickens, of South Carolina, who feared French aggression on the basis of its stipulations. See circular letter in Texas Archives, quoted in part by Lubbock, Six Decades, p. 510. The treaty was once cited also to prove that France could not intervent against the United States. Bigelow, Retrospections of an Active Life, I, 465.
91. Two attempts were made by General Banks to invade Texas in the fall of 1863: the first met defeat at Sabine Pass in September; the second captured and held Brownsville from November to July 30, 1864.
92. The original memorial apparently in Tyler's handwriting and signed by him is in the Texas Archives, Secretary of State's office, Austin, Texas.
93. For most of the data in this article I am indebted to Volney E. Howard of Los Angeles, California.
94. On April 24, 1837, President Houston issued his commission constituting Albert T. Burnley commissioner to negotiate a loan not exceeding five million dollars on the bonds of the government. Mr. Burnley endeavored to place the loan in the United States, but was not successful. He deemed it inadvisable to proceed to Europe while the proposition for annexing Texas to the United States was pending. However, on October 12, 1838, this proposition was withdrawn by Texas. On February 12, 1839, President Lamar recommissioned Mr. Burnley, and it was perhaps within the next few months that he proceeded to London.—E. W. W.
95. Austin died December 27, 1836, while secretary of state of the Republic of Texas.
96. The reader will perceive from this letter that General Lamar was planning to write a book. The scope of his efforts contemplated a life of Stephen F. Austin and a history of Texas. It was not his good fortune to complete either; but as a monument to his patriotic efforts he bequeathed to posterity the large collection of historical manuscripts, now known as the Lamar Papers, of which this letter forms a part.
97. January 3, 1834.
98. February 13, 1834.
99. In the Prison Journal will be found a diagram of the prison and some description of Austin's cell. See The Quarterly, II.
100. June 12, 1834.
101. A copy of this letter is appended to Austin's Explanation, etc., in The Quarterly, VIII, 256, 257.
102. At this point there is a hole in the manuscript and a word is lost.
103. “I remained in the inquisition until the 12th of June, when the military tribunal, to whom my case was referred, decided that they had no jurisdiction over it; and I was removed to this prison [Acordada], and my case delivered over to a civil tribunal, or jour de litras [Juez de letras], in whose hands it slept until the 12th of August—when he decided that he had no jurisdiction over it; and it was then sent to the federal district judge, who soon despatched it, by deciding that he had no jurisdiction over it, as I did not reside in his district. The matter was then sent to the Supreme Court of the United Mexican States, in order for them to decide what court or tribunal ought to try me; and there the case rests at present. So that after eight months, I do not know as yet, what court is to investigate my case.”—Austin to Perry, August 25, 1834, in Edward, History of Texas, 212-213.
104. January 4, 1835.
105. It is dated January 18, 1835. A translation of this pamphlet is printed in The Quarterly, VIII, 232-258.
How to cite:
"Issue View", Volume 014, Number 2, Southwestern Historical Quarterly Online. http://www.tsha.utexas.edu/publications/journals/shq/online/v014/n2/issue.html
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