USA > Texas > The bench and bar of Texas > Part 2
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On the 15th of August, 1824, the constituent Congress of the State of Coahuila and Texas, in session at Saltillo, declared itself legally installed in conformity to the decrees relative to its institution, and qualified to exercise its func- tions agreeably to the constitutive act of the Mexican Con- federation and other Federal laws relative to the union of the two provinces. It then proceeded to decree the State of Coahuilla and Texas to be an integral part of the Con- federation ; and to be free, sovereign, and independent in whatever related exclusively to its internal administration and municipal government agreeably to the constitutive act and the Constitution of the United Mexican States.
The judicial power of the new State was re-vested in the same authorities by which it was then exercised; and in the administration of justice they were required to be gov- erned by the laws then in force. The. whole scope and power of jurisprudence was lodged in a court called the ayuntamiento, which was composed of the alcaldes, the sindicos and the regidores, all of whom were elected
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by the people on the first Sunday in December, annually, and entered on the discharge of their duties on the follow- ing Sunday.
The alcalde in his separate capacity combined the larger powers of our mayors and justices of the peace. The du- ties of the regidores assimulated to those of our aldermen, and the sindicos corresponded with recorders. These, sit- ting together, composed the ayuntamiento, which had juris- diction over the entire community. They were required to use staffs trimmed with black tassels as badges and dis- tinctions of office ; and every town with one thousand in- habitants was entitled to have one of these courts, and this privilege was extended to all new towns of two hundred inhabitants, provided that there was no ayuntamiento al- ready established within eight leagues.
These courts being of popular creation were not oppressive, and, possessed of unbounded judicial power they protected the interests of society until the introduction of military garrisons, in consequence of the discontent occasioned in Texas by its connection with the trans-Rio Grande prov- ince of Coahuila and its subjection to the distant capital at Monclova.
Upon the abuse of power by the ayuntamiento, or by any of the judges or officers of that court, they were liable to be suspended by the Governor, with the advice and con- sent of his council, and he was required in that case to report the circumstances to the constituent Congress ; and in order to facilitate the dispensation of justice every citizen when chosen and having, in the opinion of the alcalde, no legal disqualification, was obliged to serve as a colleague judge in the inferior courts.
By. a decree of Congress, made in April, 1834, Texas was formed into a separate judicial district and a court established denominated " The Superior Judicial Court of Texas." The three departments, Bexar, Brazos and Nacoydoches constituted, respectively, three separate cir- cuits, and the Superior Court was composed of one supe- rior judge, one secretary, and a sheriff for each department, and in criminal cases it comprised a jury and prosecuting
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attorney. This court held its sessions every four months at the capitals of the respective districts ; and for the trial of civil cases there was in every municipality an inferior court held by the alealde or justice of the peace with the aid of a jury. All causes, civil and criminal, were, with some limitations, triable by jury, which was chosen and impaneled in a manner similar to that in practice under the common law ; but it required the agreement of only eight of the twelve jurors to form a verdict. The panel was composed of thirty-six persons, from whom twelve competent jurors were chosen as prescribed by the com- mon law; and for the formation of juries in criminal cases all the ayuntamientos of the district were required to send up every year to the ayuntamiento located at the capital a list of all citizens of their respective municipalities who were qualified to serve as jurors. These names were placed in a box and the secretary, in the presence of the court, drew out a number which, being multiplied by the number of municipalities, should not be less than thirty-six, and these names were given to the subaltern sheriffs who sum- moned the persons to appear at the capital at the session of the superior court. These ceremonies were all conducted in secret and the names of the persons were not divulged until they were sworn. All the officers connected with the proceedings, as well as the persons summoned, were enjoined to maintain the strictest silence under penalty of the guilt of falsehood.
The superior judges were required to be citizens in the exercise of full rights; to be lawyers by profession, and men of probity and science. They were appointed by Congress upon the nomination of the Governor, and could not be removed from office except for sufficient cause legally manifested and proven.
The alcaldes, or primary judges of the municipal capitals, were by virtue of their office judges of inquiry and police, and were capable of the prompt investigation of crime and the apprehension of criminals.
The juries were judges of all the facts in controversy, and of the law in regard to evidence under the instruction
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of the court, but they were not obliged to conform their opinion to his views as to its weight and import; as to all other questions of law they were to be governed by his in- terpretation of their tenor. The facts established by the decision of the jury were considered conclusive, and could not be controverted before any tribunal, except in case of corruption.
In all criminal cases the accused were allowed to except peremptorily and without assignment of reason to twenty individuals of the panel. Objections for cause were numerous and the list of disqualifications extensive. Crim- inal trials were divided into three parts, termed verbal, sumario and plenario. The verbal method was employed for the correction and punishment of slight offenses. The trial sumario furnished process for the prompt investigation of crime, and for the discovery and arrest of the criminal, and the trial plenario provided means for the final resolu- tion of the case and the application of the penalty.
All infringements of police regulations, contempt of process, and slight infractions of law for which the penalty did not exceed a fine of ten dollars or three days' impris- onment were punished by verbal determination of the judge.
By the trial sumario the nature of a crime was ascer- tained and decided, the author discovered and arrested and sent, together with all the circumstances in writing, to the alcalde of the capital of the district; and from him an ap- peal lay to the Superior Court, which subjected the appel- lant to the trial criminal plenario. In this court the case was tried de novo, and the accused could obtain process to bring in all his witnesses. He was furnished with a copy of the accusation sent up from the lower court, and with a list of the witnesses who would be summoned on the part of the State. He was permitted to be confronted by them, and, by his copious right of exception, participated in the formation of the jury.
The opening of the sessions of the Superior Court were verified by acts of punctillious solemnity. All of the officers of the court and of the district were required to be present and arranged in a ceremonious manner. The judge
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opened the court with a discourse suitable to the occasion and directed chiefly to the instruction of the inferior judges and other officers of justice in regard to their duties and ob- ligations; and at the conclusion of his admonitions they retired to their respective jurisdictions, and the court pro- ceeded to the dispatch of criminal causes according to their grade and the order of their dates. After the examination of the witnesses both directly and in a cross manner, the sumario prepared by the primary judge was opened and read, upon which further testimony was admissible. This being concluded, both parties were required to plead ver- bally in establishment of the accusation and defense, after which the jury retired for deliberation. The verdict agreed upon by two-thirds of the jurors was reduced to writing, with all the reasons and circumstances which con- duced to the conclusion, and the minority were permitted to express their separate dissent in like manner.
From the final sentence pronounced in the trial criminal plenario the only recourse for relief was the appeal of nullity. This appeal was required to be made within eight days, upon which the court transmitted a copy of its pro- ceedings to the Supreme Court of the State, which confined itself to the review of the trial in the lower court. This appeal could be sustained by proof of the bribery of a juror, or other gross misconduct, or by a misapplication of the law to the facts established by the jury, and in the latter case the proper sentence was passed in the appellate court.
In all civil demands and claims for personal injuries the alcaldes were required to act as conciliators, and if possible to effect a settlement of the matter by arbitration; and in all written petitions, in the institution of actions, the plain- tiffs were required to certify that they had attempted in vain a reconciliation with the opposite party.
Neither of the parties to a suit was permitted to present but two written promotions of his cause. These were : the petition, answered by the replica, and the contestation, par- ried by the duplica. The proceedings in regard to execu- tions and sales were similar to those now in practice, but
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no supersedeas intervened during an appeal to the trial civil plenario in the Supreme Court from the ruling of the court below upon the exceptions taken by the defendant to the sale of the property under the execution. The investiga- tion of these exceptions was called the trial executive.
The proceedings in the Supreme Court were conducted with the most dignified solemnity, and the etiquette ob- served was impressive. The judge was required to dress himself in black, or dark blue, and wear a white sash with gold tassels. However superfluous and absurd these for- malities may appear in this age of reason and practicability, it must be remembered that among a people like the Coa- huiltexians, little inured to any fixed and regular restraint, fanaticised by their religion, and often beyond the reach of justice in the vast regions they inhabited, respect and obe- dience are largely attracted by a display of power and the glitter of appearance. By the Constitution adopted in 1827 this system was planted in the organic law.
The land commissioner, an officer appointed by the Governor, under the colonization laws of Coahuila and Texas, was a functionary possessing important powers. He was required to examine scrupulously the certificates of qualification for citizenship which all emigrants were re- quired to bring from the authorities of the place from whence they came, to prove that they entertained the Christian faith and were of good moral character, without which requisites they could not be admitted to citizenship in the colony. He administered to them the oath of alle- giance, issued titles in the name of the State to the lands which every qualified settler was entitled to receive from the government, caused all such lands to be surveyed and established by proper metes and bounds, taking care that there should be no conflict of titles. He laid out new towns, organized new alcalde districts, established ferries, presided at the election of the judges and other officers of the courts of ayuntamiento, inducted the new officers, and in conjunction with the impressario, or contractor of emi- gration, exercised a general supervision over the affairs of the colonies. The lands granted by the commissioner
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were held under a contingent title, which could only be perfected by putting them in cultivation within the space of six years ; and lands thus acquired could not be alienated by the original settler until his title was made perfect. The alienation of those obtained by purchase from the government was coupled with the condition that the suc- cessor should cultivate them within the period obligatory upon the original proprietor, and any occupant could devise his possession conditioned upon the fulfillment of his obligations by the heir.
Lands acquired by virtue of this law could not under any circumstances be transferred in mortmain or entail, and the general rules of inheritance were applied in all cases of intestacy. All public grants made to heads of families, whether to the husband or wife, constituted a community of interest between them, and inured equally to the benefit of both, and this jointure was maintained as to all property acquired during coverture, whether by purchase, by public grant, or by inheritance, if from a child or any person of equal degree of consanguinity to both.
These qualifications of public grants, the rules regulating marital rights, and descent and distribution, descended to the Texas Republic and were modified only by the gradual introduction and amalgamation of the common law in its system of jurisprudence.
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CHAPTER III.
ORIGIN OF TEXAS JURISPRUDENCE - THE JUDICIAL ORDINANCES OF THE CONSULTATION AND PROVISIONAL GOVERNMENT - THE JUDICIARY SYSTEM OF THE TEXAS REPUBLIC - INTRODUCTION OF THE COMMON LAW AND THE CIVIL CODE OF LOUISIANA - OBSERVATIONS - LEGISLA- TIVE MODIFICATIONS - 1835-1845.
The first system of jurisprudence organized in Independ- ent Texas was derived in part from the same Spanish source as that which had hitherto existed. The Texas legislators recognizing the increasing demands of society for a more cultured and efficient system of judicature than that which existed in the old Mexican State, sought for a higher standard and a more perfect model as a basis for the jurisprudence of the New Republic, and turned their atten- tion in the direction most accessible to their purpose.
The Civil Code of Louisiana had been greatly improved by statutory enactments, and by the laws of the Spanish Partidas compiled in imitation of the Pandects, but which were proclaimed by the most learned civilians to be far superior to the general rules and abstract maxims of the Roman Code. Indeed the pliancy and practicability which they inspired into the body of the civil law were claimed to be as great an improvement upon that system as that which the commentaries of Littleton, Blackstone and Coke produced upon the common law of England. The Legisla- ture of Louisiana caused a portion of these laws to be translated in 1819, and introduced them as far as they were applicable into the jurisprudence of that State.
This improved system was likewise adopted in part by an ordinance of the Provisional Government of Texas in 1835, which ordained that the " Civil Code" and " Civil Practice " of Louisiana should be the rule in all cases of sequestration, attachment, or arrest, and should regulate these writs in form and effect. The same ordinance also
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decreed that in all criminal cases and writs of habeas corpus the proceedings should be regulated and conducted under the rules and upon the principles of the common law of England. All trials were required to be by jury, except in cases of impeachment, and all penalties inflicted were made to conform to those prescribed in like cases by the common law.
A provisional judiciary was instituted in each jurisdiction represented, or which might thereafter be represented, in the House of Consultation, to consist of two judges, desig- nated respectively the first and second judge, and the lat- ter was to act only during the absence or disability of the former. These judges were to be nominated by the Coun- cil and commissioned by the Governor.
Every judge thus nominated and commissioned was em- powered with jurisdiction over all crimes and misde- meanors known to the common law of England. They had power to grant writs of habeas corpus under the rules of the common law, and writs of sequestration, attachment, or arrest, under the regulations of the civil law. Their powers extended to the cognizance of all matters testamen- tary. Their courts were repositories for deeds of convey- ance and all other matter of record, and they were ex officio notaries in their respective municipalities.
All commissions were made " In the name of the People, free, and sovereign," and every officer of the Provisional Government was required to take and subscribe the follow- ing oath as a necessary qualification for office : " I do solemnly swear that I will support the republican princi- ples of the Constitution of Mexico of 1824, and obey the declarations and ordinances of the Consultation of the chosen delegates of all Texas in General Convention as- sembled, and the ordinances and decrees of the Provincial Government, and I will faithfully perform and execute the duties of my office agreeably to law, and to the best of my abilities; so help me God."
This simple system obtained but one year - from No- vember 1835, to the meeting of Congress in December 1836 - when it was superseded by the intervention of the
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laws which were immediately made in pursuance of the Constitution. This instrument greatly enlarged the exist- ing body of jurisprudence. It vested the judicial powers of the Republic in a Supreme Court and in such inferior courts as the Congress might, from time to time, ordain and establish. It divided the Republic into judicial dis- tricts, which were to be not less than three, nor to exceed nine; and provided for a judge for each district. It gave these courts exclusive original jurisdiction over all ques- tions in admiralty and of a maritime character, in all cases affecting ambassadors, public ministers, or consuls ; and in all capital cases; and conferred upon them original juris- diction in all civil cases when the matter in controversy amounted to one hundred dollars. The district judges were empowered to conserve the peace throughout the Republic. It fixed the style of process to be " The Repub- lic of Texas," and required all prosecutions to be conducted in the name and by the authority of the Republic, and to conclude against its peace and dignity.
The chief justice with a majority of the district judges, as associates, sitting in banc, constituted the Supreme Court of the Republic. This court possessed only appellate jurisdiction, which was conclusive within the limits of the Republic. It was to hold its sessions annually at such times and places as might be fixed by law, and no judge was per- mitted to sit during the trial of any case in which he had participated in the lower court. The judges of both the Supreme and District Courts were made elective by joint ballot of the two Houses of Congress. The Supreme Court of the Republic, thus vested with unlimited appellate jurisdiction, was perhaps the most comprehensive and inde- pendent tribunal that ever sat upon the bench of justice.
The Constitution of the Republic also required that a court should be erected in every county to be called the County Court, which was to be held by the justices of the county, who were to be commissioned by the President in such numbers as, in the opinion of Congress, the exigencies of law and order might require.
It ordained that Congress should, as early as possible,
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introduce by statute the common law of England, with such modifications as the circumstances of society, in their judgment, might require; and it reaffirmed the ordinance of the consultation, that in all criminal cases the common law should be the rule of decision. At this time the civil law of Spain was the common law of the land, and had fastened a firm grasp upon all tenures, upon descent and inheritance, and upon all marital rights ; and to remedy the inconveniences and save the conflicts which would surely arise upon the introduction of the common law, it was declared in the schedule that all laws then in force in Texas, and not inconsistent with the Constitution, should remain in full force and effect until they should be declared void, repealed, altered, or expire by limitation.
This Constitution declared in terms of exact coincidence with the first Constitution of Mississippi, from which it was perhaps taken, that ministers of the Gospel, being, by their profession, dedicated to God and the care of souls, ought not to be diverted from the great duties of their functions; and that, therefore, no minister of the gospel, or priest of any denomination whatever, should be eligible to the office of the executive of the Republic, nor to a seat in either branch of the Congress.
This discrimination and exclusion, it must be observed, was ludicrously superpolitic; for it can not be conceded that there is less field for pastoral operations, or less need of ministerial services among congressional and legislative souls than those of other communities ; but, on the other hand, human experience testifies that there is often great need of their presence and services among the souls of legislative assemblies.
The Texas Bill of Rights which formed a part of this Con- stitution is such as could emanate only from a free and liberty-loving people. It is similar to that of Virginia and other states which followed her immortal declarations. It looked neither to the common law for guidance on the one hand, nor to the civil law for light on the other; but it looked straight upward to the zenith of human liberty and human happiness.
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Such were the organic provisions of the Consultation and the Constitution of the Texas Republic, in reference to the judiciary. It has been observed by a learned judge in phrase apparently trite, yet with vast depth of meaning, that laws should be understood in order to be obeyed. It . may be said, too, with equal import that a comprehension of the machinery and character of those organized means of obtaining rights and repelling wrongs, which we call courts, should be within the reach of every citizen. The upright man should understand the unfailing methods by which his rights are protected or recovered, and the unjust should know the certainty of the machinery that will hurl a sure-footed retribution upon his track ; and as the author has bad occasion to remark in another work, the great danger in the establishment of the jurisprudence of a new and sparsely settled country lies in the effort to introduce complex systems of older commonwealths. Perfect laws do not spring forth from the fountains of wisdom like Minerva from the brain of Jove. The Confederate States present, perhaps, the only instance in the history of the world of a nation leaping from the womb of time clad in the full panoply of a perfect government.
The first Congress of the Texas Republic assembled in December, 1836, and proceeded to enact the requirements of the Constitution ; and, by act of December 20, declared that the common law of England, as there practiced and un- derstood, should, in its application to juries and evidence, be followed by the courts of the Republic, so far as it might not be inconsistent with that act or any other law of Congress. On the 20th of December, it was enacted that the penalties of all offenses known to the common law of England, as then understood and practiced, and not otherwise provided for by the act, should be the same as prescribed by that law ; and by the act of January, 1840, it was ordained that the common law of England, so far as it was not inconsistent with the constitution and acts of Congress, then in force, should, together with those acts, be the rule of decision in all the courts of the Republic. But the act of February, 1840, declared that the adoption of the common law should
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not be construed to introduce that system of pleading, but that the proceedings in all civil suits should be conducted as before - by the civil law method of petition and answer, involving as many issues of law and fact as the parties might choose to rely upon ; and this mixed and excerpted system in which the civil law governs the pleadings, while the common law furnishes the rule of decision, still obtains in Texas jurisprudence. At the session of 1840 it was also enacted that all laws in force in the Republic prior to the 1st of September, 1836, except the statute laws then in force, and except the Mexican laws, which related exclu- sively to grants and the colonization of lands in the State · of Coahuila and Texas, and also such as related to the reservation of islands, lands, salt lakes, licks, salt springs, mines, and minerals of every description, were repealed. This act, save in regard to the subjects excepted, rooted out the Spanish-Mexican laws from the country, and re- moved most of the obstacles in the way of the adoption of the common law, which now, mingling with the statutes which sprang from the civil law, created that beautiful mixture of the best features of both systems, which gives to the jurisprudence of Texas a certainty and swiftness in the pursuit of right which no wrong can baffle.
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