ANALYSIS OF THE WORK OF THE GENERAL COUNCIL,
PROVISIONAL GOVERNMENT OF TEXAS, 1835-1836
As a result of the Louisiana purchase the United States became
a neighbor of Texas in 1803, and within a short time many
Americans developed a keen interest in this vast and largely
unoccupied region claimed by Spain. In 1820, the results of a
panic combined with the frugal land policy of the United States
in causing Moses Austin to apply to the Spanish authorities for
permission to plant a colony in Texas. Before the dream could
become a reality Moses Austin was dead, and Spanish rule in
Texas had been supplanted by that of an independent Mexico.
In 1821 the first group of Anglo-American settlers came to Texas
under the leadership of Stephen F. Austin. Others followed, and
within a few years the Anglo-Americans--or Texans--had trans-
formed much of the wilderness of eastern and southeastern Texas
into relatively prosperous communities. The relations existing
between Texans and Mexicans were never entirely cordial. Behind
each race were centuries of political tradition so different as to
make complete understanding impossible. It is not surprising,
therefore, to find the Texans resorting to arms in 1835. In that
year the Texans were excited by military encounters with Mexican
forces and incensed over existing political conditions; under these
circumstances there was called together the Consultation, a body
of representatives chosen by the people to determine the policy
to be pursued with relation to strife-ridden Mexico.
The Consultation convened at San Felipe de Austin, October 16,
1835, but for lack of a quorum it was forced to adjourn until
November 1. Several members were serving in the Volunteer
Army, and it was not until November 3, that a quorum was
present.
1 The scope of this paper is not such as to include a
thorough study of the proceedings of the Consultation, but some
of its acts were so closely related to the General Council as to
demand attention. The members of the council were chosen from
the Consultation, while the governor, the lieutenant-governor, the
commander-in-chief of the army, and the three commissioners to
the United States were chosen by that body. Moreover, the organic
law, or constitution, of the Provisional Government was prepared
by the Consultation.
The preparation of the organic law is of interest here. On
November 7, Henry Millard, representing the municipality of
Liberty, moved the appointment of a grand committee to draw
up a plan for a provisional government. Millard was made chair-
man of this committee, and saw fit to divide it into two sub-
committees: one to prepare a plan for the proposed civil organi-
zation; while the other was to present a plan for the military
establishment. Henry Smith, a representative from Columbia,
and soon to be provisional governor of Texas, presented the report
concerning the civil organization, while A. Huston, a representative
from San Augustine, presented the report concerning the military
establishment.
2 Both reports were ordered to lie on the table,
with the understanding that they were to be discussed in the
afternoon of the same day. When the reports were taken up, Smith
read the preamble to his proposal, and on motion of Don Carlos
Barrett, representative from Mina and soon to be a leader of the
council, the entire preamble was stricken out. The content of
this preamble remains a mystery, but was probably too independent
in tone to please Barrett and the majority party of the Consulta-
tion, since Smith was one of the leaders of the independence party,
while the assembly declared itself in favor of the Mexican Con-
stitution of 1824.
3 The entire report was then referred to a select
committee of five, of which Barrett was chairman.
4 Following
the report of this committee the Consultation resolved itself into
committee of the whole, and considered at length the two reports.
The report presented by Barrett was chosen as the basis of dis-
cussion, and was adopted section by section with few amend-
ments.
5 It is entirely possible that this seemingly insignificant
event marks the beginning of the enmity which clearly existed
between Smith and Barrett.
journal indicates that he had little to do with the plan finally
adopted. This point is, however, of minor importance, for little
honor attaches to the author of a system so unwieldy. That section
of the plan regulating the civil government was divided into
twenty-one articles, while that regulating the military was divided
into twelve articles. 7
The organic law had a very faint resemblance to the Constitution
of the United States in that the government was divided into
executive, legislative and judicial departments. The governor and
lieutenant-governor were to be chosen by the Consultation, while
the members of the council were to be chosen by the separate
delegations from the membership of the Consultation. Bach
municipality was to have one representative in the council. The
lieutenant-governor was to serve as president of the council, and
was to become acting governor "in case of death, absence or from
other inability of the governor."
The powers of governor and council were vaguely defined, and
this vagueness ultimately played a large part in the disruption
of the provisional government. The general council was clearly
instructed to "devise ways and means, to advise and assist the
governor in the discharge of his functions," and to keep ever in
mind the army in the field and provide for its welfare. Only
those laws were to be passed which the council thought necessary
to the public good--which simply means that from one point of
view any ordinance passed by the council was in keeping with
the organic law. The governor and council were authorized to
contract for loans not exceeding one million dollars, and to pledge
the public land and the public faith, if necessary, as security. The
governor and council were to have power to levy and collect imposts
and tonnage duties; negotiate with the Indians; establish a postal
system; grant pardons, remit fines and "hear and judge all cases
usual in high courts of admiralty, agreeably to the law of nations";
as well as the power to create such offices as they might deem
necessary, with the exception of offices rejected by the Consulta-
tion. They were also endowed with authority to "organize, reduce
or increase the regular forces" of Texas as the safety of the
country might require.
The governor was given full executive power, and made com-
mander-in-chief "of all the military forces of Texas, by sea and
by land." He was to be clothed with "all other powers which may
be thought necessary by the permanent council, calculated to aid
and protect the country from her enemies." The council did not
add greatly to the executive powers, since the relation existing be-
tween governor and council was not such as to encourage legislative
generosity.
The judiciary of the provisional government was to consist of
a first, or active, judge, and a second, or substitute, judge in each
municipality. The second judge had duties to perform only in
the absence or inability of the first judge. Judges, as other officers,
were to be appointed by the council and commissioned by the
governor. Judges were given ample jurisdiction and were to be
governed by the English common law and the civil code of Louisi-
ana. In every case the offender was entitled to trial by jury, and
any decision might be appealed to governor and council. Not only
was the council to serve as an appellate court, but was itself a
court of impeachment. When charges concerning any officer of
the government were presented to the governor and council, the
defendant was to be granted a fair and impartial trial before the
council, "and if, in the opinion of two-thirds of the members,
cause sufficient be shown, he shall be dismissed from office by the
governor."
In the organic law the Consultation ordered all land offices closed,
and declared that all "land commissioners, empresarios, surveyors,
or persons in anywise concerned in the location of lands," should
immediately cease their functions. The council was to appoint
three commissioners in each department, who were to collect the
official records of the department, and hold them subject to orders
of governor and council. At the same time it was decreed that
all persons in Texas, or who might come to Texas while the land
offices were closed, should be entitled to the benefits of the coloni-
zation laws under which they immigrated. Grants of land "ille-
gally and fraudulently made by the legislature of the State of
Coahuila and Texas, located or to be located within the limits
of Texas" were declared null and void. In addition, any person--
except widows and minors--who left Texas without permission
of the proper authorities should forfeit to the government any
lands he might hold.
Provisions of the organic law providing for the organization and
control of the military will be mentioned from time to time in
connection with the ordinances passed. One illustration here will
serve to make clear the lack of centralization of the entire system:
the commander-in-chief, Sam Houston, was appointed by the
Consultation, commissioned by the governor, and was subject to
orders of the governor and council.
This, then, was the rather hazy document to which these rep-
resentatives of the representatives of the people were to turn, for
authority in conducting the war against Mexico and in attempting
to guard the body politic against anarchy. The purpose of this
paper is to investigate and attempt to analyze their procedure.
The organic law provided that the governor and lieutenant-
governor should be chosen by the Consultation, and they were
accordingly elected November 12, 1835. The names of Stephen F.
Austin and Henry Smith were placed in nomination for the office
of governor, and Smith was elected.
1 Governor Smith was self-
centered and domineering, and, being one of the most radical
members of the independence party, was clearly out of sympathy
with the Declaration of November 7.
2 Brown pictured Smith as a
Christian gentleman, who was very generous, very sociable, and
the possessor of unusual ability;
3 other writers have not been so
kind. Henry Stuart Foote describes Smith as a man "remarkable
for his social virtues, and his zealous devotion to the cause of
Freedom."
4 A writer in the Texas
Almanac
states that "Governor
Smith was a plain man, of limited intelligence, and abundant
pertinacity. Social in his disposition, he was yielding to his
friends, utterly impracticable to his enemies."
5 Colonel William F.
Gray, a purchaser of Texas bonds, who visited San Felipe in
February, 1836, and talked with Governor Smith was not favorably
impressed, as he recorded in his diary, "My impression of Gov-
ernor Smith is, that he is a strongly prejudiced party
man.
Too
illiterate, too little informed, and not of the right calibre
for the
station he has been placed in. Organs of self-esteem and com-
bativeness large; perceptive faculty good; intellectual small; little
reflection or imagination; no reverence."
6
Assuming that an accurate picture of Smith would rest some-
where between the estimates of Brown and Gray, how was he able
to defeat Austin for the governorship? The best answer seems to
be that the leaders of the Consultation had decided the services
of Austin would be of more value as a commissioner to the
United States than as governor of the provisional government.
7
James W. Robinson of Nacogdoches was the unanimous choice
of the Consultation for lieutenant-governor.
8 Robinson was also
a member of the independence party, and in the Consultation had
supported a motion to declare independence. This choice of execu-
tives is somewhat surprising when it is remembered that the Con-
sultation, by a vote of thirty-three to fifteen, had rejected a
declaration of independence.
9
November 14 marked the last meeting of the Consultation and the
first meeting of the Council. Council members were present from
fifteen municipalities, as follows: Austin,
Wyly Martin; Brazoria,
John A. Wharton; Washington,
Jesse Grimes; Mina,
D. C. Barrett;
Gonzales,
J. D. Clements; Viesca,
A. G. Perry; Nacogdoches,
Daniel Parker; San
Augustine,
A. Huston; Liberty,
Henry Mil-
lard; Harrisburg,
W. P. Harris; Bevil,
Wyatt Hanks; Matagorda,
Charles Wilson; Tenehaw,
Martin Parmer; Jefferson,
Claiborne
West; Victoria,
J. A. Padilla.
10 Goliad, Refugio and San Patricio
were not represented during the first sessions of the Council.
As its first act the Council elected A. Huston secretary pro
tempore.
A committee was then appointed to inform the Governor
that the Council had organized and was ready to receive any
message he might see fit to send. For two days all business was
handled either in open session or by special committees, but at
the evening session of November 16, five standing committees of
three members each, were announced: Committee on Military
Affairs--Wharton, Huston, Hanks; Committee on State Affairs--
Barrett, Padilla, Parker; Committee on Naval Affairs--Perry,
Harris, West;
Committee on Land and Indian Affairs--Martin,
Parmer, Grimes; Committee on Finance--Millard, Wilson, and
Clements.
11
The membership of the committees, as that of the Council, was
constantly shifting. By the frequent introduction of new members
the Council was able to remain in session for a few days more
than two months, although they sometimes met without a quorum
being present.
12 During November and December fourteen or
fifteen members were usually present. During the first two weeks
of January twelve members were usually present, but this number
decreased rapidly until on February 26, 1836, only two members,
Alexander Thomson and G. A. Pattillo, were present.
13 The Council,
realizing the impossibility of maintaining a quorum, appointed,
January 17, a committee to advise and counsel the Governor
during the periods when a quorum was lacking. The members of
this committee were Barrett, Clements, Thomson, Pattillo, and
Collard.
14 A few members met each day from January 18, to
March 11, but at no time was a quorum present. The fact that
the membership was so patently unstable possibly had a tendency
to lessen the feeling of responsibility which should have dominated
the members, and may have been a factor in the ultimate failure
of the Provisional Government.
15
During its tenure the Council created the municipalities of
Jackson, Sabine, and Colorado; and a bill was introduced creating
a municipality to be known as Fort Bend, but it failed to pass.
16
Meanwhile four of the earlier municipalities acquired new names:
Mina was changed to Bastrop; Tenehaw to Shelby; Viesca to Milam;
Bevil to Jasper; and the journal indicates the passage of an act
changing the name of the municipality of Refugio, but no record
was kept of the ordinance.
17 The Council also passed, acts defining
the boundaries of Jefferson, Matagorda, and Harrisburg; and a pro-
posed ordinance defining the boundaries of Jackson was introduced,
but was postponed until July 4.
18
The first message from Governor Smith was received November
16. The message pointed out some of the more serious difficulties
facing the Provisional Government, and preached a lofty patriot-
ism. The Council was advised to "summon to your assistance
moral courage; to throw around you the impenetrable shield of
honesty; to march onward in the pathway of duty." In laying
before the Council his estimate of things which must be done, the
Governor declared that the Provisional Government must "call
system from chaos" and "start the wheels of government." He
requested that the Council give immediate attention to measures
in behalf of the army, provide the organization of an engineering
corps, regulate the issuance of letters of marque and reprisal, com-
plete the organization of a corps of rangers, and state definitely
the rewards to be offered foreign volunteers. The Council was
admonished to second the measures of the Consultation concern-
ing relations with Indian tribes in Texas, and to send agents to
foreign countries for aid and supplies. He recommended that the
Council establish a tariff, organize a post office department, appoint
a treasurer, and select a seat of government. Smith made every
effort to impress upon the Council that "the welfare of thousands
depends upon your actions." Texas possessed, according to Gov-
ernor Smith, ample resources, and it "is for you to quicken and
enliven the energies of the body politic, and make Texas the
Eden of America."
19
Seemingly the Council was well pleased with this message and
ordered five hundred copies printed for popular distribution. The
various suggestions were referred to appropriate committees, and
the Council began the work of legislation. For the first four or
five weeks of its existence the Council was an aggressive, hard
working body of legislators, but by the latter part of December
strife had crept into the machinery of government. Governor
and Council were no longer agreed, and soon both were rendered
mutually powerless.
The Consultation adjourned without making provision for a
permanent seat of government. The Council convened in San
Felipe, but a committee was soon appointed to decide upon ..a
permanent location. The committee reported upon several towns,
but did not make specific recommendations. Washington was,
according to the committee, nearer the center of population than
San Felipe, but lacked a printing press and the necessary rooms
for the Council and its committees. Matagorda, Velasco and
Brazoria were also found wanting; thus leaving the impression
that San Felipe, while leaving much to be desired, was the moot
satisfactory location available.
20 In spite of this information the
Council provided in an early ordinance for the removal of the
government to Washington. Governor Smith objected, however,
and the government remained in San Felipe.
21 In February, 1836,
after the Convention had been called to meet in Washington, the
advisory committee requested that the government be removed to
Washington, and this was done.
22
Thus the remnant of the Council moved to Washington for the
very good reason that the Convention was to meet there. How-
ever, the matter of moving was considered by members of the
Council on more than one occasion, and several available letters
indicate that various and mysterious reasons were involved.
23
Governor Smith states that the Council was being intimidated by
the land speculators who "collected themselves into a mob, that
is their minions, subs, and understrappers, and threatened to mob
the Council, until by degrees the members vacated their seats until
they had not a lawful quorum."
24 It is possible that this mob is
the same as that referred to in the letters, and may account for
the desire on the part of the Council to leave San Felipe.
The term state affairs is here used to cover a multitude of acts,
most of which were proposed by Barrett and his Committee on
State and Judiciary. The Council, November 16, adopted a reso-
lution to the effect that it should be governed by the rules and
regulations of the Consultation.
1 These rules required, among,
other things, that proposed ordinances be read on three separate
days before passage; this rule could be, and frequently was, sus-
pended. Having determined upon the method of their own pro-
cedure, the Council passed an ordinance stating the mode of
"passing, signing and publishing" ordinances of the Provisional
Government. The important parts of this act were the provisions
endowing the Governor with the power of veto--a veto could be
overridden by a two-thirds majority in the Council--and making
it the duty of the Governor to have ordinances and decrees printed
in one or more newspapers in Texas.
2 This act, as originally
passed, allowed the governor three days from the date of passage
of an act in which to exercise his veto. Governor Smith, feeling
that he should have three days from the time the bill reached his
office, vetoed the act which gave him this power, and the Council
saw fit to make the requested change.
From the earliest days of its history the Council was called upon
to fill numerous offices, and on November 20, a resolution was
adopted to assist in safeguarding their proceedings from criticism.
No person holding an office, or commission, in the executive de-
partment, judicial department, or regular army of Texas was
eligible for membership in the council; nor could any individual
hold offices in both the executive and judicial departments.
3 The
vote on this resolution was a tie, and it was adopted by the casting
vote of the president. The General Council later saw fit to violate
the provisions of this resolution, and the error brought upon them
much criticism.
The organic law provided an oath of office for all appointees
of the General Council, as well as for its members, and in order
that the newly appointed officials might more easily have the
oath administered an act was passed giving to any judicial or
executive officer of the provisional government, the president and
secretary of the Council, and field officers of the regular army
authority to administer the oath. When so administered, copies
of the oath were to be forwarded to the Governor and filed in
the executive office.
4 A few days later an ordinance was passed
authorizing the Governor to appoint a commissioner in each
municipality whose business it should be to administer oaths.
5
Apparently the primary duty of these commissioners was to ad-
minister the oath of office to judges and municipal officials, and
they in turn might administer the oath to other appointees.
Governor Smith addressed the Council, November 18, on the
necessity of an executive secretary, and suggested Charles B.
Stewart as a person capable of filling the position. Prior to this
the committee on state and judiciary had reported an ordinance
creating and defining the duties of a treasurer, a secretary to the
executive, and committee clerks. Immediately following the receipt
of the Governor's message this ordinance was passed by the Council
and sent to the executive for approval.
6 Salaries for committee
clerks were placed at six dollars per
diem,
while the treasurer and
the executive secretary were to receive $3,000 per year. This
scale was not at all pleasing to the Governor who thought it
quite unusual that the "highest officers should receive the lowest
salaries."
7 This was the second bill passed by the Council, and
the second vetoed by the executive.
In compliance with the wish of Governor Smith, the Council
reduced the proposed salaries. The revised bill provided that the
treasurer should receive $1,000 per year, while the committee
clerks, the secretary to the Council--who had been appointed
November 15--
8 and the secretary to the executive should receive
for their services five dollars per day. The secretary to the General
Council was required to attend all meetings and keep a complete
record of its proceedings. It was the duty of the executive sec-
retary to keep a complete' record of the proceedings of the executive
office, and care for the correspondence of the Provisional Govern-
ment, all of which was to be conducted through the executive
office. The political chief in each department was ordered to
cease his functions and give over his archives and records to the
Governor.
9 This ordinance in its final form was passed November
24, and approved by the Governor, November 26.
In his initial message to the Council, Governor Smith had
mentioned the necessity of preparing instructions for the three
agents chosen by the Consultation to proceed to the United States
and attempt to secure aid and money.
10 The Council discussed
the matter on several occasions, but had not prepared instructions
by December 4. On that day Governor Smith requested that
instructions be immediately prepared in order that the agents
might proceed to the United States, for the "fate of Texas" de-
pended upon their success.
11 An ordinance was introduced and
passed December 5, authorizing the Governor to instruct the agents.
The commissioners were to effect a loan for Texas, and in so
doing were to be guided by an ordinance previously passed by the
Council.
12 They were to purchase munitions, provisions, and other
equipment, and in these purchases they were to be guided by an
ordinance authorizing the purchase of various military supplies.
They were also to purchase one or more vessels of war for the
Texas navy. All money coming into their possession was to be
placed in banks to the credit of the Provisional Government.
They were privileged, however, to check on these accounts to the
amount of $200,000; the balance --fond hope-- was to remain
subject to orders of the Council. The Governor was to use his
own discretion in instructing the commissioners concerning their
relations with the United States.
13
William H. Wharton was not very enthusiastic over this expe-
dition to the United States, and the matter of whether he should
be permitted to resign was placed before the General Council.
The only move made by the Council was the adoption of a reso-
lution declaring the Council incompetent to act in any way on
the appointment of Wharton as a commissioner to the United
States.
14 Wharton's decision to accompany Austin and Archer
made further action by the Council unnecessary.
Conditions in Texas were such that the Council had little time
and less reason to be interested in foreign affairs. Several letters
were sent the commissioners, but no changes were made in their
instructions. Barrett presented a committee report, January 2,
which was somewhat hostile in tone, due to the receipt by the
Council of letters from the commissioners concerning the Creek
Indians. The committee was of the opinion that the government
was getting along about as well as the commissioners, and should
be allowed to deal with the Creeks while the commissioners spent
their time dealing with American financiers. Governor Smith was
asked to instruct the delegation to proceed with their duties and
send supplies for the army.
15
If a somewhat generous use be made of the imagination, the
address of the Council to the Mexican people may be placed under
the head of foreign relations. The purpose of the address was to
set forth to their Mexican neighbors the "causes and reasons why
the people of Texas have taken up arms, and requesting them to
co-operate with us in the glorious struggle against military des-
potism and misrule." The address was ordered printed for circu-
lation among Mexicans.
16
The calling of a convention was given generous consideration
during the first two weeks of December. On December 2, Austin
appeared before the Council and expressed himself as favoring the
calling of a convention with plenary powers. The following day,
in answer to a request from Barrett, Austin again stated his posi-
tion, saying that he was heartily in favor of a convention, and
that the call should be made by the Governor and Council. Austin
declared it to be his opinion that the labors of the Provisional
Government had "been directed by the purest desire to promote
the general good, and merit the approbation of the country."
17
Barrett presented to the Council, December 4, a report of the
committee on state and judiciary advocating the calling of a
convention. The report contained an interesting statement of the
contract theory of government, and argued that, permanency being
one of the bases of good government, the Provisional Government
should be replaced by one of a more permanent nature. Accom-
panying the report was an ordinance calling a convention to meet
March 1. On motion of John A. Wharton both report and ordi-
nance were ordered to lie on the table.
18
A few hours later a message was received from Governor Smith
in which he suggested the calling of a convention with plenary
powers. After this message was read, Wharton proposed that a
special committee consider the communication of Austin, the mes-
sage of the Governor, and the proposed ordinance; and report on
the advisability of calling a convention, as well as the nature of
the convention, should one be called. The committee, as appointed
by the president, was composed of Wharton, Barrett and Millard.
19
favored a convention to meet January 15, 1836. The majority
report, submitted by Barrett, was the ordinance originally intro-
duced. 20 The majority report was adopted, and the ordinance
calling a convention to assemble at Washington, March 1, 1836,
was passed. Delegates were to be clothed with ample power in
so far as the creation of a government was concerned, with the
exception that no proposed government was to become effective
until ratified by a majority vote of the people. Representatives
were apportioned among the municipalities on the basis of popula-
tion, and in their selection all free white males, including Mexicans
opposed to the central government, were to have the ballot. Persons
serving in the volunteer army were allowed proxy votes. 21
The Governor objected to that part of the ordinance which
extended suffrage to Mexicans opposed to the central government,
arid returned the measure with his veto.
22 The Council, having
determined upon its Course, promptly passed the measure over the
veto,
23 and the Convention met in due time.
In connection with the calling of the Convention it is proper
to mention the reaction of the Council to the so-called Goliad
Declaration of Independence, and to a similar body of resolutions
adopted by a group of citizens at Texana. The committee report,
presented nby Barrett and adopted, 'declared a declaration such as
that adopted at Goliad to be dangerous to the whole people.
Therefore, it should be adopted by representatives of the whole
people, or not at all. Barrett's report also held that independence
was not a subject to be discussed in the Council as the members
were duty bound to follow the organic law.
24 This report was
perhaps influenced by Austin, for in a letter to Royall, December
25, he had decried "men who will collect the signatures of persons
on their first landing, . . . and attempt to impose a paper thus
signed: upon the world as the opinion of the people of Texas."
25
In this matter the opinion of the Council coincided with that of
Austin, but was distinctly opposed to that of Governor Smith.
A reasonable amount of time was devoted to the organization
of a post office department. This work had been starred by the
Permanent Council and had been approved by the Consultation.
The Provisional Government was given ample authority to estab-
lish post roads and post offices, regulate postage rates, appoint a
postmaster general,, and make necessary regulations for the suc-
cessful operation of a post office department. In his first message
to the Council, Governor Smith urged that immediate attention
be given the postal service and expressed approval of John R.
Jones, the choice of the Permanent Council, as postmaster general.
An ordinance organizing this department was passed December 7,
and Jones was retained as head of the system.
26
The ordinance is very long, containing thirty-five sections, and
is none too clear. The charge for carrying a letter of one sheet
a distance of twenty-five miles or less was six and one-fourth
cents, and this charge increased with the number of pages and
the distance traveled. Newspapers were to be carried fifty miles
or less for one cent, while the charge for greater distances was
one and one-half cents. In addition to the low postage rates
granted newspapers, each publisher was permitted to send, to every
other publisher in Texas one paper free of charge, and to. send
and receive as many as fifty newspapers from out of Texas free
of all postage charges. Governmental officials were also given free
use of the mails. Mail routes were to be assigned by contract,
and persons employed as carriers were exempt from military
service, jury service, and the disagreeable task of working on the
public roads. Fines were to be imposed for misuse of the mails,
and for failure on the part of postal officials to carry out the
duties assigned them. The Council called to its aid in this case
a large force of enforcement officers, by providing that fines should
be divided equally between the state and the person bringing
charges and prosecuting the law violator. Every effort was made
to discourage the robbing of mail carriers: the penalty for the
first offense being imprisonment for not more than ten years, while
the penalty for a second offense was death. The postmaster general
was entitled "to receive for his services per annum, the sum of
twenty hundred dollars quarterly."
27
received from the committee of safety at Beaumont, the com-
mittee of state and judiciary reported, January 1, an ordinance
concerning free Negroes. This ordinance was "handed over to
Governor Smith for approval but was never returned." 28 Such
action on the part of the Governor was probably due more to a
desire to weaken the Council than to any sympathy he may have
felt for the free Negroes. As passed by the Council, the ordinance
made it unlawful for any free Negro or mulatto to come within
the limits of Texas, and the penalty for violating this act was to
be the sale of the guilty party to the highest bidder. One-third
of the proceeds of such sale was to be given the person appre-
hending the lawbreaker, and the balance was to go into the treasury
of the state. Not only was the free Negro a violator of the law,
but so was any person who aided him in coming to Texas. The
penalty for giving such aid was to be a fine of $5,000, and the
guilty party was to be imprisoned until fine and costs were paid. 29
Although not signed by the Governor, this ordinance doubtless
became, at least in theory, the law of the land, as it was not vetoed
within the specified three days.
The organic law had stated the terms upon which the provisional
judiciary should be established, and the judicial activities of the
Council were primarily concerned with the appointment of judges.
It seems, however, that not all appointees were satisfactory. Barrett
reported for the committee of state and judiciary, December 30,
concerning charges made by S. Rhoads Fisher and J. R. Lewis of
Matagorda relating to Judge Wilson of that municipality.
30 Barrett
admitted that Wilson had been made a judge by vote of the Council,
but contended the Council knew nothing of his character other
than the reports they had received and the fact that he had re-
ceived the suffrage of his municipality. It was argued that if
Wilson was bad and stayed drunk all the time, the blame rested
with the people of Matagorda. Barrett declared nothing could
be done about the matter unless impeachment charges were filed
by citizens of Matagorda.
31
Some time was spent attempting the actual administration of
justice. In a secret session of December 9, the Council considered
a letter from George M. Poe, and then ordered Poe "to proceed
to Columbia or any other place in Texas and under the authority
of this Government arrest and Bring before this Body one Manuel
Cadena, a citizen of Texas who stands charged as a Spy of the
Enemy & a Traitor to his country.
32 Two days later the Council
commanded Captain Stephen Miller of the Patrol Guard of San
Felipe, "to arrest one Wm Francis a colored man and bring him
forthwith before this Council on a charge of high crimes and mis-
demeanors."
33 There is no indication as to whether either of
these orders was obeyed.
A report of a similar nature was adopted January 3, requiring
the Governor "to issue his proclamation, offering one hundred and
fifty dollars to any person who shall arrest and commit to prison,
Joseph P. Laller who on Saturday, the day of December,
assaulted, beat, and severely wounded Matthew Caldwell of Gon-
zales, so that his life was and is yet in great danger."
34 So far
as the journal is concerned this $150 promise to pay was never
claimed.
One of the last acts of the General Council was to pass an
ordinance for the purpose of opening and regulating the courts.
The courts were never organized under this act, which was signed
by Governor Robinson, but some of the provisions are of interest.
The courts were to be governed by the English common law and
the civil code of Louisiana. Appeals were to be carried from the
courts of one municipality to those of an adjoining municipality.
The appellant was to pay all costs of the appeal, and was to take
the following oath: "I, A. B. do solemnly swear that it is not
for the purpose of delay that I take this appeal, but because I
firmly believe that injustice has been done me." Provision was
of course made for the necessary clerks, prosecuting attorneys,
and officials of various kinds. The ordinance tended to make
marriage relatively easy by empowering judges, alcaldes, com-
missarios, and accredited ministers to perform the ceremony; but
discouraged the institution by setting the fee at five dollars.
35
The Council then proceeded to create the office of Marshal of
Texas. This officer, who was to execute orders of the Council and
perform certain duties for the courts was appointed, but the
Council was neyer again able to muster a quorum, so little, atten-
tion was paid him.
36
Not all activities of the Council can be classified as belonging
within the sphere of any one of the five major committees. The
following proceedings are listed here as state affairs for want of
a, better classification, and because each of them involved either
the committee on state and judiciary or Barrett, its chairman.
On December 11, 1835, Barrett presented and, the Council unani-
mously adopted a resolution extending to Stephen P. Austin the
thanks and compliments of the Council as agents, of the people
of Texas. A signed copy of the resolution was presented to Austin
before he left San Felipe on his mission to, the United States.
37
The Council faced many hardships unknown to present legisla-
tive bodies. One of these was the difficulty of obtaining stationery
and other supplies. The paper supply at San Felipe seems to
have been completely exhausted by January, 1836, and Jones, and
Thomson were appointed a committee to send by express to
Columbia for a new supply. They were unable to procure, horses
at once, and not until a week later could they report the success
of their mission.
38 The price of paper was relatively high,, as a
statement presented by the firm of Jones and Townsend lists "Hot
Pressed" paper at eight dollars per ream, while "Fools cap" is listed
at six dollars per ream.
39 With these prices in view, it is readily ap-
parent that the paper used in some of the more lengthy committee
reports was worth more than an acre of land.
Not all activities of the General Council were of a serious
nature. On several occasions measures were postponed until July 4,
and this procedure must have become a joke. On December 6,
they found time, even in the press of business, to discharge the
doorkeeper and fine, him three days wages for the foolish neglect
of his duty. On December 17, Barrett, a special committee of
one, presented a report which must have amused some of the
members. The report concerned a letter which had been received
from Judge C. Wilson of Matagorda. The committee freely ad-
mitted that a letter had been received, but was somewhat dubious
as to what it said. He concluded, however, that some of the
gentlemen elected as officers in the regular army had "safer and
more profitable business than fighting; a measure which is so
prudent as to require no comment." It was also apparent that
a wreck had taken place and that certain persons were greatly
displeased, but the committee did not know what had been wrecked,
nor where, nor who was displeased. The committee further de-
duced from the letter that the judge had, from motives of economy,,
quartered upon the people eleven prisoners and one lieutenant,
but refused to offer advice as to the disposition of the prisoners,
as the letter failed to state whether they were "bipeds" or
"quadrapeds."
40
Closely akin to the matters just discussed are the policies of
the General Council concerning land. These policies are doubly
interesting in view of the fact that Governor Smith later declared
the disruption of the government to be due to the activities of a
group of land speculators. According to Smith, this group of
speculators, who remain nameless in so far as the reports of the
Governor are concerned, decided, early in January, to control the
Provisional Government for their own ends. They wished to re-
duce the membership of the Council to a bare quorum so that it
could be more easily controlled.
1 If this amusing story be true,
the means employed were far too potent, for so many members,
left the Council that not a quorum remained.
The organic law specifically declared the land offices closed,
instructed land commissioners, surveyors and empresarios to cease
their operations, and ordered that all records be turned over to
commissioners appointed by the Council.
2
The first mention of land made by the Council, excepting grants
to soldiers, was in connection with a report on the conduct of
William H. Steel of Viesca, land commissioner of the Nashville
colony. He had consistently refused to hand over the papers in
his possession to the committee appointed by the Council. An
order was passed making it the duty of Governor Smith to have
Steel arrested and brought before the Council on a charge of
contempt.
3 Steel was evidently convinced that the Provisional Gov-
ernment intended to take charge of the various archives, and
December 17, appeared before the Council and apologized for his
actions. He had refused to deliver his files, he stated, due to
a misunderstanding, and not out of any disrespect for the gov-
ernment. This apology was accepted, and he was honorably dis-
charged.
4
There was placed before the Council, December 3, a communi-
cation from the committee of safety at Nacogdoches requesting
that land commissioners continue to issue titles for lands sur-
veyed prior to November 1. The request was referred to the com-
mittee on state and judiciary, and the following day Barrett
reported that the General Council had no authority whatever to
grant the request as the Consultation had ordered that all persons
interested in the location of lands cease their operations.
5
Additional petitions were received from Nacogdoches, and on
December 8, the committee made a second report. They were still
positive that the General Council had no authority to open the
land offices. They thought, however, that when the Council came
into possession of all papers it might be proper to complete "all
titles to land made for settlers on survey, returned before the
passing" of the organic law.
6
In spite of these statements by the Council, interested parties
continued to petition that the land offices be opened. Sterling C.
Kobertson addressed the Council in a letter of December 18, con-
cerning the land offices in his colony. He stated that he was
bringing families to Texas, and should like for them to receive
their titles.
7 In answer to this request the committee on state
and judiciary reported an ordinance for perfecting titles to actual
settlers. This ordinance was ordered to lie on the table, and De-
cember 28, was indefinitely postponed.
8 Barrett, Kerr, Menefee,
Parker, and Thomson were opposed to the postponement.
This decision was no doubt influenced by the Governor's message
of December 26; Smith quoted from a letter written by John
Forbes, first judge for Nacogdoches. Forbes told the Governor
that due to "the combined and active opposition of some six or
eight speculators, sustained by individuals from the States, who
employ them to engross the lands that are properly public domain,
that the intentions of the Government and its acts relating to
the public lands, and even its judicial acts, have been delayed
and interrupted, greatly to the injury of the public." Smith was
convinced the speculators would attempt to practice fraud upon
the Council, and warned the members of that body to be on their
guard. He did not think these grasping gentlemen would visit
him, for he said, "Me, they seldom approach: they may over-
power, but never can deceive."
9 In response to this message the
Council adopted resolutions requiring the Governor to carry into
effect the fourteenth section of the organic law, which provided
for closing the land offices, and giving him all necessary power.
In the same series of resolutions the postmaster general was re-
quired "to dismiss Henry Raguet, the postmaster of Nacogdoches,
and appoint some one in his place of known integrity, and who
will respect and obey the laws of the land."
10
Since there seemed to be so much opposition to the policy of
the Consultation in closing the land offices, it was thought best
to prepare an address to the people explaining the reasons for
this action. The address was prepared by Clements, Barrett and
Power, and was reported to the Council December 31. It not
only stated the conditions which led the Consultation to close
the land offices, but explained that the Council had no power to
open them. The organic law stated that settlers should receive
the benefits of the colonization law in force at the time of their
arrival, and newcomers were assured that the General Council
would pass no law to impair contracts between empresarios or
commissioners and actual settlers. Immigrants were advised to
settle on the public lands, far enough apart to avoid trouble in
making surveys. Persons settling in this manner were assured of
their titles when peace and order were restored.
11 This address
was ordered published in the Telegraph
and
Texas
Register
(San
Felipe), in the paper at Nacogdoches, and in handbill form for
general distribution.
In his first message to the Council, Lieutenant Governor Rob-
inson, who was recognized as Governor by the Council following
their dispute with Smith, suggested the expediency of providing
by law for the disposition of public lands to actual settlers, but
thought it would be unwise to permit the location of large grants.
12
This portion of Robinson's message was referred to the committee
on state and judiciary, and Barrett, January 16, reported an ordi-
nance extending titles to actual settlers.
13 The proposal was or-
dered to lie on the table, and the absence of a quorum prevented
its consideration. On the day this proposed ordinance was tabled
Wyatt Hanks presented his views concerning the land offices.
As a member of the Consultation he had favored closing the land
offices, but thought conditions no longer warranted so drastic a
measure. His change of opinion was due to the following reasons:
most, of the Bexar volunteers had returned to their homes; opening
the land offices would tend to harmonize the feelings of the people,
increase the population and add to the wealth of the country;
permitting immigrants to come into the state under the Consti-
tution of 1824 would prove to the world that Texas was not
endeavoring to rob Mexico of her public lands; and Texas had
declared for the Constitution of 1824, which guaranteed to every
immigrant some land.
14 This statement was also ordered to lie
on the table, with the result that it was never discussed.
These acts of the Council fail to indicate any particular desire
for graft on the part of its members. It is entirely true that
some of the members eventually came to favor opening the land
offices, but it is also true that these members may have been sincere.
Certainly they had received numerous requests to open the offices,
and it is but natural for representatives to pay some heed to the
wishes of their constituents. Such appeals as that of Spencer H.
Jack, agent for Austin and Williams, must have had an effect.
Jack wrote the Council that closing the land offices had destroyed
confidence, and had placed the "poor new settlers" in the hands
of speculators, as they had given up hope and were selling their
claims for small amounts, some of them for as little as twenty-
five dollars.
15 It must also be remembered that the most radical
measure placed before the Council provided only for the issuance
of titles to actual settlers; and the fact remains that no ordinance
or decree for opening the land offices was ever passed by the Council.
Some surveys must have been made, however, and some titles
issued, possibly after the disruption of the Provisional Govern-
ment, for the Constitution drawn up by the Convention of 1836
provided that,
"whereas many surveys of titles to lands have been made whilst
most of the people of Texas were absent from home, serving in the
campaign against Bexar, it is hereby declared that all the surveys
and locations of land made since the act of the late consultation
closing the land offices, and all titles to land made since that time,
are, and shall be null and void."
16
The question of opening the land offices was more than a local
question, and was a matter of distinct importance from the declara-
tion of the Consultation which closed them. The people as a
whole seem to have been divided on the matter, though the two
following statements indicate that the people of the "lower country"
were opposed to opening the offices, while those of the "upper
country" were heartily in favor of the move. John Forbes, of
Nacogdoches, writing to Robinson, January 22, told him of politi-
cal conditions at Nacogdoches, and added, "Should the Council
see fit to open the Land Offices please advise me of it by Express
and authorize me to do it it would materially strengthen our
cause."
17 While R. R. Royall, writing from Matagorda, January
28, to Robinson and members of the Council hopes "the Council
will not open the Land offices The People below (that is in the
Lower Country) are Violent even to Pasionate on the Subject)
You are already accused of being under the Influence Bribery
Corruption &c. But the People are now becoming convinced of
their Error--."18
FOOTNOTES:
198.
entire volume.
160.
111.
1898), I, 190. This is a reprint of Henderson Yoakum, A History of
Texas (New York, 1855).
bership to constitute a quorum. There were eighteen municipalities when
the council convened, and there eventually came to be twenty-one munici-
palities.
sultation Papers, Vol. I, Texas State Library.
of the following members at some time during its sessions:
Austin—Wyly Martin, Thomas Barnett, William Menefee, Randall
Jones.
Bastrop (or Mina)--D. C. Barrett, Bartlett Sims,
Brazoria—John A. Wharton, Edwin Waller.
Colorado--William Menefee, Jesse Burnham.
Goliad--Ira Westover.
Gonzales--J. D. Clements.
Harrisburg--William P. Harris.
Jackson--James Kerr.
Jasper--Wyatt Hanks.
Jefferson--Claiborne West, G. A. Pattillo.
Liberty--Henry Millard.
Matagorda—Charles Wilson, James Kerr, R. R. Royall, Ira R. Lewis.
Milam--A. G. Perry, Alexander Thomson.
Nacogdoches--Daniel Parker.
Refugio--James Power, John Malone.
Sabine--J. S. Lane.
San Augustine--A. Huston, A. E. C. Johnson.
San Patricio--Lewis Ayres, John McMullen.
Shelby--Martin Parmer, James B. Tucker.
Victoria--J. A. Padilla, John J. Linn.
Washington--Jesse Grimes, Asa Mitchell, Asa Hoxey, Philip Coe, Elijah
Collard.
A Mr. Clark of Pecan Point, Red River, was received as an honorary
member until he could produce the testimonials of his election. Appar-
ently these were never produced as no further mention is made of him.
The clerk clearly nodded in recording (Gammel, Laws of Texas, I, 807)
the seating of Bartlett Lewis of Mercer. It is evident that he should
have recorded the seating of Bartlett Sims of Mina, who replaced D. C.
Barrett. Five resolutions were adopted by the advisory committee on
February 15, the day Bartlett Lewis is supposed to have become a mem-
ber, and each of the five is signed by Bartlett Sims but none is signed
by Bartlett Lewis. See Advisory Committee to the Acting Governor,
February 15, 1836. Consultation Papers, Vol. I, Texas State Library.
Consultation Papers, Vol. I, Texas State Library. The committee wrote
the Governor as follows:
"The advisory Committee to the Executive appointed by the General
Council to act in that capacity in the absence of a quorum of said Coun-
cil, are of opinion that under existing circumstances the affairs of Gov-
ernment & the interests of the people could be better attended to by an
adjournment of the Genl. Council to Washington, together with a re-
moval of all the officers of the Provisional Government that are required
to cooperate with the Geni. Council and such as are under their imme-
diate control and supervision. Said Committee therefore advise that the
Executive, General Council, treasurer Auditor, & Comptroller be re-
quired to remove to the town of Washington & be ready for the transac-
tion of business at that place on Monday the 22d, Inst., and that the
acting Governor advertise to that effect immediately, that the publica-
tion may appear with his proclamation now at the press."
Barrett Papers, University of Texas Library.
"Having accidentally come into possession of information which mate-
rially interests the Geni. Council and the heads of Government I will
endeavor to communicate in as few words as possible the critical situa-
tion in which I believe your honorable body to be now placed--and ad-
vise you with sincerity for the good of our country and cause in which
you are now laboring to remove from that place with all possible dis-
patch before the storm breaks upon your heads. I mean from the dis-
organizers, some of their plans and intended operations were disclosed
to Capt. Allen and myself on our way to this place from such authority
and received in such a manner that we cannot doubt their intentions.
The calm that has succeeded the little storm of last week--which we all
supposed had blown over--and that their failure to raise a mob to assist
them in their nefarious project to destroy the Existing Government and
the deathlike stillness a day or two after--luled us into the idea that
we had nothing more to fear from that quarter, but that was not the
fact. The[y] have been more active than ever. Traveling through the
country, organizing their Bands to make a desperate effort for your over-
throw and that on the first of Jany it is said, or immediately after.
You must not treat the information as ideal fancy, for rest assured that
even the assassination of some of you and Genl. Huston is in contempla-
tion and believe it a fortuitous circumstance that such undoubted infor-
mation was recd in time to put you on your guard. They have excited
the whole Murrell Gang which are not very contempable in numbers and
possess more funds or cash than the honest part of the community can
boast of, but everything may be expected from the good sense and honest
intentions of our citizens who are not to be bought nor bullied into meas-
ure--should you come to this place you can be verry well accommidated
and find a strong support in the citizens of this place."
Daniel Parker to D. C. Barrett, Washington, January 8, 1836, in Bar-
rett Papers, University of Texas Library.
". . . The Counsel would be but reasonably situated here bording would
be much Cheaper here but Committe rooms are scarce, but I think you
would be tolerable comfortable here. Should you move up here and it is
necessary that I should return to my seat I will try to do so in a short
time. The barrer is wating I must hasten, things moves on reasonable
well, people are tolerable well satisfied with things. The peoples here
says that you shall be guarded against mobs if you come. . . ."
the Texas State Historical Association, XIV, 50.
cil had been fixed by the Consultation. The Governor was to receive
$1,500 annually, the Lieutenant Governor $1,250 annually, and members
of the Council a per diem of three dollars, with an allowance of three
dollars for each twenty-five miles traveled from "and to their place of
residence." (Gammel, Laws of Texas, I, 545.)
the Council.
H. Wharton.
missioners see George P. Garrison (ed.), Diplomatic Correspondence of
the Republic of Texas (Washington, 1908), I, 51-54. This correspondence
constitutes Volume II of the Report of the American Historical Associa-
tion for 1907.
from Matagorda.
Council Papers, 1835, Texas State Library.
Council Papers, 1835, Texas State Library.
I, Texas State Library.
the Texas State Historical Association, XIV, 50.
Governor and Council Papers, 1835, Texas State Library.
I, Texas State Library.
(Austin, n. d.), VI, 302.
How to cite:
Ralph W. Steen, "Analysis of the Work of the General Council, Provisional Government of Texas, 1835-1836", Volume 40, Number 4, Southwestern Historical Quarterly Online, http://www.tsha.utexas.edu/publications/journals/shq/online/v040/n4/contrib_DIVL4367.html
[Accessed Thu Dec 4 12:20:04 CST 2008]
