USA > Texas > The bench and bar of Texas > Part 18
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In all the relations of life, he made the Golden Rule his motto. He was always satisfied with his own and coveted nothing belonging to his neighbors. He was a model hus- band, father and friend, and, above all, an honest man and a patriot. The record of his public services form some of the brightest pages of Texas history, and it would be diffi- cult to find a Governor or statesman who has done more for the prosperity of his State and the happiness of his people.
. The talisman of his success was a continued, strenuous and determined effort. He followed the polar star of duty, as seen through the glasses of conscious rectitude, and he was always true to the cause of virtue. It has been said that the bar instructs the bench no less than it is in- structed by it, and, while Governor Pense never held a judicial office, his genius impressed itself upon Texas juris- prudence, and his name will ever be associated with the munificent and charitable polity which has become the pride and honor of the State.
In his message to the Legislature, on December 23, 1853, he said : -
" In recommending measures for your consideration, I shall mainly confine myself to a few of those important
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and leading ones that seem to have been designated by public opinion for the action of the present Legislature, the early adoption of which will tend rapidly to develope the resources of the State, and to promote the happiness and prosperity of its citizens.
" Of these measures, one of the most important is, to make a suitable and permanent provision for the support of public schools. The highest and most sacred duty of a free government is, to provide the means for educating its citi- zens in a manner that will enable them to understand their duties and their obligations ; this, too, is a measure that is enjoined upon the Legislature by the Constitution.
" The want of available means has heretofore furnished a ready excuse for the neglect of this duty. But this no longer exists. The State now has ample means at its com- mand, and an opportunity is offered to establish a system of public schools that will extend its benefits to every child within its limits ; if we fail to embrace it, we shall be faith- less to our duties and the trust that has been reposed in us by our fellow-citizens.
" It is respectfully recommended, that two millions of dollars of the United States five per cent bonds, now in the treasury, shall be appropriated and set apart as a per- manent fund for the support of public schools. That the income of this fund shall be annually apportioned to the several counties of the State, according to the number of free children in each between the ages of five and sixteen years, to be ascertained in such manner as may be consid- ered most convenient ; and that the amount due to each county shall be paid over to the county treasurer semi- annually, to be disbursed under the orders of the county courts, to such teachers as the parents or guardians of the children may choose to employ for their education.
" I do not pretend to recommend this as a perfect sys- tem ; but its operation will be simple and cheap ; it may be commenced without delay, and it seems to be better adapted to our situation than any other system that has come under my notice. A plan very similar to this has succeeded well in some of the neighboring States, where the population is
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sparse, like our own. Time and experience will point out the defects of the system proposed, and enable us by future legislation to perfect and adapt it to the situation and wants of our population.
"I would also recommend that the amount which has already accumulated by the appropriation of the one-tenth of the annual revenue of the State derivable from taxation, be added to the principal of this fund, and that for the future, this tenth be apportioned in the same manner as the income of the fund.
" Under the present provisions of the Constitution, the lands that have been donated to the several counties for public schools can not be alienated in fee, nor disposed of otherwise than by lease, for a term not exceeding twenty years. In a State where land is so cheap as it is here, and where so large a quantity is in market, it can not be ex- pected that under these provisions any benefit will be derived from these school lands during the present genera- tion. Much of it is located in large bodies, in sections of the State where it would be improved if subject to sale. The policy of reserving from sale, and consequently from cultivation, such large bodies of land, may well be ques- tioned, and I recommend to your consideration the propriety of an amendment to the Constitution, by which these lands may be alienated under the direction of the Legislature, upon the petition of a majority of the citizens of the county owning the lands.
" If such an amendment were adopted, these lands might be subdivided into small and convenient tracts, and each alternate tract might be sold upon a long credit, at not less than a minimum price; the purchaser to pay an interest of six per cent on the amount of his purchase, to be annually expended in the same manner as the school money distrib- uted by the State. By adopting this policy, most of the counties would derive some immediate benefit from their school lands, and the alternate tracts reserved from sale would much more rapidly increase in value.
"The want of a good university in the State, where a liberal education can be obtained, is a serious inconve-
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nience. It should be our policy to furnish, within our own limits all the means for obtaining an education, that can be had in any part of the Union, so as to remove the necessity of having to send our youth abroad to be educated among those who are hostile to the policy and institutions of the State.
" The present seems to be a favorable time to lay the foundation for such an institution, and I respectfully recommend that the sum of two hundred and fifty thou- sand dollars of the United States bonds now in the treasury, be appropriated and set apart as a perpetual fund, the interest of which shall be applied to the erection and support of a State University. The income of such a fund, with the amount that may hereafter be realized from the lands that have been set apart by an act of the late Republic, will, at no distant period, enable us to build up a univer- sity fully adequate to all the wants of our State. I am aware that these lands were appropriated for the establish- ment and endowment of two universities, but I suggest for your consideration, that it would be better to have one well endowed institution of the kind, than to apportion our funds for the erection of two, neither of which could afford the advantages which are furnished by similar insti- tutions in other States of the Union.
" Should such an appropriation be made, it will be necessary to pass laws for the location of the proposed university at some central point, convenient to the entire State, as well as for the erection of the necessary buildings and for the organization and government of the institution.
" The establishment and endowment of an asylum for lunatics, and an institution for the education of the deaf and dumb, are measures that should commend themselves to your consideration. Our census tables show that we have in our midst many of both of these unfortunate classes, who have a claim upon our sympathy and bounty, and who now have to be sent away from their friends to distant parts of the Union, in order to obtain the means of alleviating and improving their condition.
" Institutions of this character can not be established in
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a State so new as ours, except under the care and patron- age of the government, and I recommend that the sum of five hundred thousand dollars of the United States bonds be appropriated and set apart as a perpetual fund, one- half for each of these institutions, the income of which shall be applied to their erection and support. Should you concur in this recommendation, you will of course pass the necessary laws for their location, establishment and government.
" These appropriations will absorb a large portion of the United States bonds now in the treasury, but the objects for which it is proposed to use them are of great practical utility, and will be productive of benefits as lasting as the institutions under which we live.
" The improvement of our navigable water-courses and the construction of railroads are measures of great inter- est to our citizens, and have deeply engaged public atten- tion. Our past legislation has frequently been directed to these objects, but it has been productive of little if any benefit.
" The rejection, at the late election, of the river bill of the last session, can not be fairly considered as an expres- sion of the people against the policy of attempting to im- prove our navigable rivers. That bill was defective in its details, and made insufficient appropriations for those streams that are susceptible of being improved, while it contained many appropriations for objects of questionable utility. It should be borne in mind that our large rivers have, without any improvement, hitherto furnished the means of transporting most of our productions to a market, and we must continue to rely upon them to a great extent for many years, even if the construction of railroads shall proceed as rapidly as is anticipated by their most sanguine friends. It is believed that a moderate expenditure of money by the government would greatly increase their use- fulness and add largely to the value of the taxable property of the State. If such be the case, it certainly is an object worthy of your encouragement and patronage.
" The advantages to be derived to our State from the
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construction of railroads, are too obvious to require demonstration ; the necessity for them is felt and acknowl- edged by all, and it is a question of great interest to our citizens to devise and adopt some policy, by which we can secure their construction at the earliest period.
" The limitations imposed by the Constitution upon the the power of the Legislature, preclude the State from un- dertaking these improvements or becoming a part owner of the stock of any corporation created for that purpose. The active capital in the hands of our own citizens is insuf- ficient to secure their construction, but, for the attainment of this object, we may hold out sufficient inducements for the introduction of capital from abroad. It can not be disguised that the population and business of the State are not such, as at this time, to promise the return of an imme- diate profit on the amount that may be invested in such enterprises. Indeed, it may well be doubted whether a railroad in any section of the State would, for the next five years, pay an interest of five per cent on the amount invested, in addition to the cost of repairs and other ex- penses necessary to keep the road in operation. If, there -. fore, we would invite the employment of capital from abroad, in railroads in this State, we must hold out such inducements of ultimate profit as will compensate the the holders of it, for the small interest they will receive during the first years of its investment. Fortunately, the large extent of our public domain will enable us to do this, without imposing any onerous burden on our citizens.
"I had intended on this occasion to present you my opin- ions in relation to the best mode of securing the passage across our State of the proposed railroad to the Pacific Ocean ; but this is now rendered unnecessary by the bill which you have already passed to provide for the construc- tion of the Mississippi and Pacific Railroad. While the principal provisions of this law are unobjectionable, I think it might have been improved in some of its details, particu- larly in that provision which authorizes the company to receive patents for the lands selected previous to the comple- tion of the entire road.
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" It is to be hoped that this law will accomplish for the State all that is anticipated by its friends.
"The duties and responsibilities imposed upon the Governor under the provisions of this law will be cheerfully under- taken, and I shall endeavor to execute them in a manner calculated to effect the objects intended by the Legis- lature.
" In adopting any general system for aiding other com- panies in the construction of railroads, we find ourselves embarrassed by the numerous charters that have heretofore been granted to individuals, without any specific designation of the routes they were to pursue, who still hold and rely on them, although not a dollar of capital stock has ever been paid. It is much to be regretted that instead of grant- ing charters indiscriminately to all who applied, without any assurance that the applicants were possessed of the necessary means to comply with their provisions, the State did not first locate and survey such routes as the wants of commerce and the business of the country seemed to require,
· and then grant charters for these routes to companies who should organize after a subscription of stock, with an amount actually paid at the time of subscribing sufficient to show an intention of prosecuting the work in good faith. Had this course been pursued, our statute books would not have been incumbered with railroad charters, many of them commencing nearly at the same point, and conflicting with each other in the routes they propose to pursue, nearly all of which have expired, or are about to expire, without hav- ing accomplished anything beneficial to the public.
" In regard to such charters as have been heretofore granted, I respectfully recommend that no extension of time shall be granted to any company, unless satisfactory evi- dence is presented, that it has actually commenced the con- struction of its road, and that a sufficient amount of stock has been paid to give a reasonable certainty that the road will be completed. I would also suggest that in all such cases, the route and termination of the road shall be designated, when this has not been done in the original charter, and if any further donations of land are made to
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such companies, they should receive the patents only on the final completion of their roads.
" In extending aid to future railroad enterprises, we ought to avoid the evils that have attended our past legislation on the subject.
" I would suggest that all charters hereafter granted to railroad companies, should specifically designate the route to be pursued as well as the commencement and termination of the road. That they should appoint commissioners to receive subscriptions for stock, a portion of which should be paid at the time of subscribing, and whenever a reason- able amount of stock has been subscribed on these terms, the stockholders should be permitted to hold an election and organize the company. That the charter should also limit the time within which the companies shall commence their roads, and prescribe the number of miles to be con- structed from year to year, until their final completion. The State should grant bounties of land sufficient to induce capitalists to become stockholders in companies thus organ- ized, the land to be selected from time to time, as the road progresses, but no title to be issued until the road shall be completed according to the terms of the charter. These companies should be required to alienate the lands thus ac- quired within a limited time after the completion of their roads. Should this course be adopted, the State would secure the construction of valuable works of internal im- provement, before she parted with her lands, instead of being liable to have the works abandoned after those por- tions have been constructed which promise an immediate profit.
" I would also suggest that the alternate sections upon the line of the Mississippi and Pacific road be granted to other roads connecting this with our gulf ports, with the Vicksburg road and the New Orleans and Opelousas road at such points as will best accommodate the different sec- ' tions of the State. Such a disposition of these sections is but just, since the portions of the State through which these branch roads are to be built, will receive no immediate
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benefit from the Pacific road unless they are thus connected with it.
" In addition to the aid proposed to be extended to rail- roads in the manner heretofore indicated, I think it would be good policy to authorize the school fund, the university fund, and any other funds that may be set apart by the State for charitable and benevolent uses, to be loaned out, from time to time, to railroad companies, in this State, as they may progress with the construction of their roads. I entertain no doubt in relation to the power of the Legisla- ture to make this disposition of these funds. The period is not very remote when the United States bonds will be redeemable, and necessity will then force us, if we would derive an income from their proceeds, to make some invest- ment of them. If they can be securely loaned out, so as to be used in the prosecution of works of improvement calculated to develope the resources of the State, and contribute to the wealth and convenience of our citizens, it is our duty to make this disposition of them.
" Should these views meet with your approbation, I recommend that a Board of Commissioners be established, to consist of Controller, Treasurer and Secretary of State, who shall be authorized, with the concurrence of the Gov- ernor, to loan these funds at six per cent interest per annum, payable semi-annually, for a period not exceeding twenty years, to companies chartered by this State, for the construction of railroads and other works of internal improvement. The amount loaned to any company in no case to exceed the one-third of the actual cost of the works that have been constructed, and to be well secured by a lien on the property of the company, subject to be enforced without a suit, by a sale after sixty days ' public notice.
" The condition of the Indian tribes within the limits of our State calls for some action on the part of the Legisla- ture. Our situation in relation to this class of population is different from that of any of the other frontier States of the Union. In these the General Government has the sole and exclusive control of the public domain over
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which the Indians formerly roamed, and under the power given by the Constitution to Congress to regulate commerce with the Indian tribes, that department has assigned to them certain limits which they are to occupy, and regulates all intercourse between them and the whites, and also between the different tribes. Under this policy, Indian depredations have ceased for many years. The General Government has the same power to regulate intercourse with the tribes within our limits, but it can not be efficiently exercised, because having no right in the public domain, it can not set apart any particular district for their occupation, and with- out this their movements can not be controlled. I respect- fully suggest that a portion of our vacant domain, remote from the settled parts of the State, shall be appropriated for the temporary occupation of those remnants of tribes that properly belong to this State ; that all locations within the limits thereof be prohibited, and that a qualified juris- diction for Indian purposes be ceded to the General Government for a term of years, provided she will engage to remove them within those limits and keep them there, subject to her laws regulating intercourse with the Indian tribes.
" The business before the Supreme Court is increasing so rapidly that it will soon be impossible, with the present number of judges, to dispose of the docket during each term ; indeed, the number of cases now taken to that court is so great that many important ones are continued over from term to term for want of sufficient time to give them that thorough investigation which the vast interests involved require at the hands of the judges. Much of their time is consumed in preparing the written opinions which they are required to give in each case. By increasing the number of judges, this labor will be divided, and more time given to the examination and decision of causes. I therefore recommend an amendment to the Constitution, so as to give the Legislature the power to increase the number of judges to five. Should you concur in this recommendation, I sug- gest that you, at the same time, propose an amendment, giving to the Governor power to fill all vacancies that may
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occur in the Supreme and Districts Courts, and in the offices of Attorney-General, District-Attorney, Controller, Treas- urer and Commissioner of the General Land Office, by appointment, to continue in force until the vacancy can be filled by the people at the next regular election for State or county officers. Under the present provisions of the Con- stitution, should any of these officers die or resign, the office must continue vacant until an election can be held, which will take several months. Such an amendment would obviate the necessity that now exists for frequent elections at different periods in the year, and subserve the public interest by having these offices temporarily filled, imme- diately on the happening of a vacancy.
" In connection with this subject, I feel it my duty to call your attention to the inadequate salaries now paid to the judges of both the Supreme and District Courts. The duties of these offices are very laborious, and they should be filled only by men of stern integrity, and of superior legal attainments. It would seem needless to argue that, in order to secure men of qualifications adequate to the important and laborious duties which they have to perform, a just compensation should be paid for their services. It must be obvious to all, that the present incumbents of these offices have never received salaries commensurate with their labors and merits. I trust that this subject will not fail to receive your early attention and efficient action.
" Your attention is invited to the law regulating appeals to the Supreme Court in criminal cases, under the provis- ions of which, in all cases, not capital, the prisoner, after conviction, by taking an appeal, is permitted to be released on bail. For several offenses persons may be confined to hard labor in the penitentiary for fifteen years; for others they may be confined in like manner for life ; still, by this law, they, by taking an appeal, are entitled to bail after they have been convicted by a jury, and thus in all cases, except treason, and murder in the first degree, convicts have it in their power to purchase exemption from the penalties of our criminal laws. It is hoped that this evil will be remedied without delay.
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" It is believed that an examination of our criminal laws will show, that there are some offenses for which free per- sons may be subjected to the barbarous punishment of whipping. These provisions are inconsistent with the general spirit of our criminal laws, and ought not longer to be retained.
"Our laws, both civil and criminal, in my judgment, require a careful revision. We have adopted, it is true, the best portions of two different systems, but this was not done at the same time, and it was usually effected by crude and hasty legislation ; as a necessary consequence, these different parts have never been brought to combine into one harmonious system. Our rules of pleading and of prac- tice in the courts are meagre and exceedingly defective. Our statutes concerning crimes and punishments were often passed without reflection, many of their provisions conflict with each other, and these, more than any other portions of our laws, require to be carefully revised and amended. These are defects which hasty legislation can not cure.
" I would recommend that you make a suitable provision for the appointment of a commission of three gentlemen learned in the law, whose duty it shall be to prepare a code of civil and one of criminal procedure ; and also a code of general laws or rules of decision, and that all these be reported for the action of the next Legislature.
" Should this be done with ability and care, our system of procedure might be better adapted to the attainment of the ends of justice than any other which has been devised, and the whole of the rules and principles of the general laws, which are now diffused in an almost endless number of text books and reports, could then be contained in a single volume. This would be accessible to all, and should be adopted, as near as possible, to every comprehension.
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