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 ha