USA > Texas > The bench and bar of Texas > Part 29
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47
The subject of this sketch was placed at an early age in a country school which possessed few facilities for the pro- motion of either progress or ambition, and without even the incentive of rivalry his advancement was slow. But as he approached the years of manhood he began to realize the deficiency of his education, and reflecting with regret upon what he conceived to be due largely to his remissness and want of application, he determined, if possible, to
(367)
368
BENCH AND BAR OF TEXAS.
retrieve his misspent time. But how to accomplish this in the most speedy and effectual manner, and what course of life he should mark out for himself, were questions necessary to be decided at once. He had been reared on a farm, in the midst of a community of farmers, but his taste and experience taught him that this calling would not satisfy his newly awakened ambition and aspirations, and he determined to prepare himself for the study and practice of law.
Armed with this resolution, which was but intensified and strengthened by the difficulties that beset his way, he entered with vigor and zeal upon the chosen path of his destiny. The first step necessary to the most happy accomplishment of his design, was to acquire a collegiate education. But how to do this was a question of more serious import than any which had yet presented itself. His father's family was large, and the income of his farm was small. He could render him no material assistance. But it is the characteristic of genius, however trammeled by difficulty, to break forth from the gyves of untoward circumstance, and, spreading the wings of resolution, soar away triumphantly to the sunny fields of success. Young Harris determined to rely upon his own resources and edu- cate himself. His mother had given him a small body of land. This he made available to, some extent, and at once put his plans in operation. In the fall of 1830 he entered Washington College ( now Washington and Lee University ) at Lexington, Virginia, in which he pursued his studies for two years with the utmost diligence and success. Having at the end of this time casually met some acquaintances who were attending the University of Virginia, he was advised by them to complete his education there ; and while the change, in consequence of the increased expense which it entailed, was more com- patible with his ambition than with his means, he was so much impressed with the superior advantages which the University afforded that he again bade defiance to fate, and in September, 1832, entered that celebrated institu- tion, in which, for five years, he prosecuted his studies
369
JOHN W. HARRIS.
with close and vigorous application. During this time he graduated in six departments of the University, including that of law, in which he attained distinguished proficiency.
Soon after leaving the University he obtained license to practice in the courts of his native State ; but the viginti annorum lucubrationes, which custom at that time required of a young man at the bar of Virginia, however competent he might be, before he could expect to be entrusted with important cases, caused many talented young lawyers to seek more propitious and less ceremonious fields. This conventional and arbitrary restraint was particularly repug- nant to the ardent spirit and impulsive vigor of Mr. Harris, and in the fall of 1837, within a few months after leaving the University, he immigrated to Texas and located in Brazoria County, near the mouth of the Brazos River, where, in January, 1838, he began the practice of his profession.
This county was at that time, perhaps, the most populous and wealthy in the Republic, and offered a most promising field to the legal profession. Titles to real estate were often conflicting and uncertain, and the courts were thronged with adverse claimants seeking the adjustment of their rights. The professional services of Mr. Harris were brought into immediate demand. His energy and talent engaged the attention and confidence of clients, and he soon found himself immersed in the duties of an extensive practice.
Soon after he had settled in Brazoria he became a mem- ber of the law firm of Wharton & Pease, and after the death of Colonel Wharton, which occurred in 1839, the firm of Harris & Pease became one of the most noted in the Republic, afterwards one of the most distinguished in the State, and continued until Mr. Pease was elected Governor of Texas in 1853. When Mr. Harris came to the bar of the Republic it contained but four judicial districts, which extended over the vast expanse of its inhabited territory, and it was arranged between him and Mr. Pease that the latter should remain permanently in Brazoria while he should attend the courts of the six counties composing the district, and they soon found themselves employed in most
24
-
.
370
BENCH AND BAR OF TEXAS.
of the important cases that came before the various courts of the district. They began their practice in the Supreme Court in 1840, when it was first organized. In 1839 Mr. Harris was chosen to represent the county of Brazoria in the first Legislature that convened at Austin, which had re- cently been selected as the capital of the Republic. During the canvass he endeavored to impress upon the people the propriety of abolishing the civil or Mexican law then in force, which was written in a language unintelligible to a majority of the citizens, and contained in books, for the most part, beyond their reach, and urged the adoption of the common law as the law of the land. They seemed to be indifferent, however, as to which system should prevail, and elected him untrammeled by any positive public ex- pression in regard to the measure. But he made it the chief object of his legislative mission. Although there were several other eminent lawyers in the House of Repre- sentatives, he was appointed by Hon. David S. Kaufman, then Speaker, as chairman of the Judiciary Committee of that body. In due time he introduced a bill to repeal the Mexican laws and to adopt the common law, and procured the recommendation of its passage by the Judiciary Com- mittee, it being opposed by only two members, who made, however, no adverse minority report. Considerable oppo- sition to the bill was soon manifested among the lawyers of the House, based chiefly upon the ground that the common law was not sufficiently liberal in its provisions regarding the rights of married women. This opposition was dis- trusted by General Houston, who gave his support to the measure, and its adoption was then assured. But to obvi- ate all grounds of objection, Mr. Harris added the feature regulating marital rights, and the bill was passed. This feature was incorporated five years later in the first Consti- tution of the State, and was pronounced to be a grand discovery of the age. Similar provisions have since been adopted by many of the States of the Union.
It next became necessary that general statutes should be enacted in modification and aid of the common law to make it conform to the state of society and to the government
371
JOHN W. HARRIS.
and polity of the Republic, as had been done both in England and in the States. In view of this Mr. Harris had procured a copy of the General Statutes of Virginia, which had been originally enacted in England and adopted in Vir- ginia during the period of the American Revolution. These had been ably construed by the courts and their meaning and import well ascertained and settled, and Mr. Harris caused exact copies of them to be made, which he introduced as bills in the House of Representatives, and they were generally passed without amendment. But in civil cases the common-law system of pleading was rejected, and the proceeding by petition and answer was retained. The distinction between law and equity was discarded, and the courts were empowered to administer both without sep- arate dockets, and with the same form of proceedings, and this was found to be a decided improvement upon the old system, which maintained separate courts of law and chancery, as already described in a preceding chapter.
' In 1846 Mr. Harris was appointed Attorney-General of the new State by J. Pinckney Henderson, the first Governor of Texas after its admission into the Union. This appoint- ment was made without the least solicitation on his part, or of any of his friends, but, notwithstanding the inadequate salary, he accepted the position. He discharged the duties of this office with signal ability, and gave such general sat- isfaction that Governor Wood, the successor of Governor Henderson, reappointed him to the position, declaring, in answer to an urgent application for the office by one of his strongest supporters, that the interests of the State required the services of Mr. Harris.
He was married in 1852 to Mrs. Annie 'P. Dallam, of Matagorda, Texas, daughter of Hon. S. Rhodes Fisher and Mrs. Ann P. Fisher, formerly a Miss Pleasants. They were both reared in Philadelphia, and emigrated to Matagorda at the early period of 1832. This talented and noble lady has adorned his home with the most admirable graces and accomplishments of her sex.
In 1854 Gov. Pease appointed him in conjunction with James Willie and O. H. Hartley, to revise the laws of the
372
BENCH AND BAR OF TEXAS.
State. The penal code and code of criminal procedure were prepared by Mr. Willie, to the provisions of which Mr. Harris gave his assent without any material alteration of their features. The task of preparing a code of civil procedure was assigned to Mr. Hartley, and that of revising the statutes to Mr. Harris. They performed their duties, but the Legislature seemed to be satisfied with the practice as it existed and with the general statutes previously en- acted, and the reports of Messrs. Harris and Hartley never received legislative action.
Mr. Harris has always been a Democrat of the purest school. Educated amid scenes impressed with the very genius of Mr. Jefferson, and under instructors whose sen- timents were moulded by his association and influence, he drew his political inspirations from the very atmosphere in which the great statesman lived and moved, and imbibed his principles from the fountains which he struck from the rock of human liberty. The Civil War he deplored as un- necessary. He was devoted to the Union established by our fathers, and felt all the indignation of a true Southerner when he saw it fall under the control of a party avowedly inimical to the great principles upon which it was founded; and while he was not in favor of secession as the proper mode of redress, he accepted it as a fixed and accomplished alternative; and gave his support to the Confederate cause.
When the storm of revolution had passed away and the courts were reopened, he resumed the practice of his pro- fession in copartnership with Marcus F. Mott, Esq., and subsequently associated with Branch T. Masterson, Esq .; but his private fortune was now large and he confined his practice chiefly to important cases in the higher courts.
In 1873 he was elected to the House of Representatives of the Fourteenth Legislature from the counties of Galves- ton, Brazoria and Matagorda. One of the most important questions that came before this body was a proposition to amend the Constitution of 1869, which had been framed under the auspices of military rule by persons inimical to the views and sentiments of the people, and largely by per-
3
373
JOHN W. HARRIS.
sons who had no permanent interest in the State, and which had been adopted by the people under the constraint of a still more distasteful alternative. They had either to accept it or remain indefinitely under the galling yoke of military rule. The Fourteenth Legislature, being largely Demo- cratic, was desirous of annulling a Constitution which had been thus forced upon the people and of affording them an opportunity of adopting one of their own choice.
The Constitution of 1869 permitted amendments to be made by a joint resolution of the Legislature proposing the amending features and their submission to the vote of the people. Under this provision, Mr. Harris, who was a mem- ber of the Committee of the House upon Constitutional Amendments, conceived the idea of readopting in this man- ner the Constitution of 1845, which had given general sat- isfaction, which had been thoroughly construed by the courts, and which Mr. Webster had declared to be the best that had ever been written. Taking this Constitution as a basis, and changing its features with a sparing hand, he caused it to be carefully printed, and then submitted it to each House. Its passage was recommended by a committee of the House, and afterwards by a joint committee of the two Houses; but a strong feeling had in the meantime arose in favor of calling a constitutional convention, which finally prevailed, and the convention of 1875 convened and framed the present Constitution of the State. This Constitution was in some respects unfortunate. It has never given sat- isfaction, and under its provisions amendments seem almost impossible.
The most important cases in which Mr. Harris has been engaged were those of Hosmer v. De Young, 1 Texas, 754, and League v. De Young & Brown, 2 Texas, 477 ; and as the questions involved in these cases were important in their bearing upon the origin and validity of a large number of land titles in Texas, the circumstances of the latter case and the points raised by the respective counsel, taken from the brief of Mr. Harris, are given in full.
The laws of the Republic of Texas gave to each head of a family, who was a citizen at the date of the declaration
374
BENCH AND BAR OF TEXAS.
of independence, one league and labor of land, and boards of land commissioners, referred to in a former chapter, were elected by Congress for each county, whose duty was to hear the evidence of applicants and to grant certificates to them for such quantities of land as they were respectively entitled to receive under the provisions of the law. But it soon became apparent that some of those boards had cor- ruptly issued certificates to persons who were not entitled to them, and to fictitious persons, for many millions of acres of the public lands.
Transfers of these certificates were proven, or purported to be proven or acknowledged before notaries public, and were duly certified for registration. The holders of these fraudulent certificates located them, and required the sur- veyors to survey the lands on which they were located.
President Lamar, foreseeing that the vast public lands of the Republic would soon be appropriated by these fraudulent certificates unless he should interpose his power to prevent it, issued his proclamation prohibiting the granting of patents upon all land certificates until Congress could meet and pass such laws as should be found necessary for the pro- tection of the public domain.
When Congress met, it passed the " Act to detect fraud- ulent land certificates, and to provide for issuing patents to ยท legal claimants."
Under this act three land commissioners were elected for each county in the Republic, who constituted the boards of land commissioners of their respective counties.
Besides these, Congress elected three commissioners for the district east of the Trinity River, and a like number for the district west of that river ( commonly called boards of traveling commissioners ), whose duty it was to go to each county in their respective districts, and in connection with the county commissioners, to investigate the proceed- ings of the prior or first boards, and ascertain what certifi- cates had been properly issued.
Such as they found to be legal and genuine, they were to report to the commissioner of the land office, so that patents might be issued upon them.
1
375
JOHN W. HARRIS.
The law prohibited under heavy penalties the surveying, or patenting of lands upon any certificate not thus recom- mended.
It also provided that the owner of any unrecommended certificate might sue in the District Court of the county in which it was issued, to establish its validity.
Hosner and League, each holding a certificate which the new boards of commissioners had failed to recommend as genuine, or legal claims, and which had not been established by suit in the District Courts, respectively made applica- tions to the surveyors for the location and survey of their certificates. This, under the law, the surveyor refused to do. Each then applied to the District Court for a man- damus to compel the surveyors to make the surveys. These applications being refused, the holders of the certificates applied to the Supreme Court of the State, and the cases were there argued for the appellees by Mr. Harris, as Attor- ney-General, and the judgments of the District Court were affirmed.
Thomas M. League, took his case by a writ of error to the Supreme Court of the United States, before which it was ably argued by George Wood, Esq., of New York, for the plaintiff, and by Mr. Harris, for the defendant, who was employed by the Governor as the only attorney to represent the interest of the State.
In this case the counsel for the plaintiff in error con- tended that the Republic of Texas was under an obligation amounting to a contract, to make grants of lands to claim- ants who came before the first board of commissioners and made the proof prescribed by the Act of the Republic of Texas of 1837.
2d. That the grant of the certificate in question by the first board - a tribunal of competent authority, was in effect a judicial decision which was final, and, whether fair, or fraudulent, the validity of the claim could never be sue- . cessfully impeached, nor could it ever be inquired into ex- cept upon appeal, or by writ of error, for which the law had made no provision.
3d. That the certificate constituted a perfect right to the
-
376
BENCH AND BAR OF TEXAS.
quantity of land awarded, and all legislation of the Republic of Texas appointing new tribunals to examine into the genuineness and legality of such claims, or to limit the time within which the holder or assignee of such certificates might demand a survey and patent, was void, because it impaired the obligations of a contract, and that the eleventh section of the Constitution of the State of Texas declaring all cer- tificates for head-right claims issued to fictitious persons, or which were forged, were null and void from the beginning, and that the act providing that the District Courts should be opened till the 1st day of July, 1847, for the establishment of such unrecommended certificates, was also null and void, as it impaired the obligation of contracts.
The points made by Mr. Harris, the counsel for the defendant in error, were :--
1. That the laws of Texas, enacted while she was a Republic, could not be regarded as inhibited by that pro- vision of the Constitution of the United States which says " that no State shall pass any law impairing the obligation of contracts." Nor could the eleventh article of the Consti- tution of the State be so regarded, for this was also adopted during the existence of the Republic, and it formed a part of the treaty between the two governments for the admission of Texas as one of the States of the Union.
It may be said that this article was offered by Texas as an indispensable condition of the contract or treaty for annexation, and was accepted by Congress, which is not prohibited from enacting laws or making treaties impairing the obligations of contracts.
2. That there was no obligation on the part of the Repub- lic to issue the certificate in question; that the granting of the certificates was based upon no consideration, which is an indispensable requisite of every legal and valid contract ; and that the laws of the Republic, and the eleventh article of the Constitution complained of were remedial laws, which . could be altered, or even repealed, by the power that made them ; and that the plaintiff in error had certainly no cause of complaint against the eleventh article of the Constitution, since that revived in his favor a remedy which he had lost
377
JOHN W. HARRIS.
by limitation in failing to institute suit before the 1st day of January, 1844, and since he had also lost this constitu- tional remedy by failing and refusing to accept its pro- visions.
3. That the Congress of the Republic had full power to pass laws creating new boards of commissioners, or other tribunals to revise the acts of the first boards, granting fraudulent certificates, and to reverse their decisions ; that had these certificates been fraudulently granted by the highest courts of the Republic the legislative power could have created new tribunals to revise and reverse their fraud- ulent judgments.
4. That this was a suit against the State without its consent.
5. That the plaintiff, by his own laches, had lost his right to sue in the District Court for the establishment of his claims, and that after all right of action had been barred he could not make application to the District Court for a man- damus to compel the surveyor to survey the land.
6. That if while Texas remained an independent Republic her Congress had passed laws annulling all these certificates, such would have been the effect of these laws.
It will be seen by the decision in League v. De Young et al., 11 Howard, 200, that the Supreme Court of the United States sustained these several positions taken by Mr. Harris, the counsel for the defendant in error.
This case was avowedly taken to the Supreme Court of the United States as a test case, with the hope of obtaining a decision to the effect that the statutes complained of and the eleventh article of the Constitution were repugnant to the Constitution of the United States, and consequently null and void.
Had such been the decision it is easy to see how disastrous would have been the consequences. The court in its opin- ion says: " Immense numbers of these certificates were . soon put in circulation, either forged or fraudulently ob- tained, which, if confirmed by surveys and patents, would soon have absorbed all the vacant land of the Republic."
Mr. Harris was employed in 1872 by Gov. Davis to assist
378
BENCH AND BAR OF TEXAS.
Hon. William Alexander, then the attorney-general of Texas, in the defense of a suit which had been instituted by the International Railroad Company v. A. Bledsoe, controller of Texas.
The object of the suit was to compel the controller to countersign and register claims to a large number of the bonds of the State, claimed by the company under the act of the Twelfth Legislature, passed August 5, 1870.
This was entitled " An act to incorporate the Interna- tional Railroad Company, and to provide for the aid of the State in constructing the same."
The aid provided was the donation of the bonds of the State to the company of ten thousand dollars per mile, the road to be constructed from the northeast to the southwest boundary of the State, a distance of six hundred miles. These bore interest at the rate of eight per cent, payable semi-annually in the city of New York.
The bonds had been signed by the governor and treasurer, and were required by the provisions of the charter to be countersigned and registered by the controller. This the controller refused to do. The company after but little de- lay made application to the District Court of Travis County for a mandamus to compel the controller to countersign and register these bonds.
The defendant appeared and demurred, generally and specially, to the petition, and among other special causes assigned the following: -
1. That it was, in effect, a suit against the State.
2. That the controller could not be compelled to exer- cise his official discretion in any particular way.
The defendant further answered that the passage of the act of incorporation was procured by means of fraud, bribery and corruption, and was therefore null and void.
In the argument before the Supreme Court the points mainly relied upon by Hon. George Clark, the attorney- general, and Mr. Harris, the counsel for Bledsoe, were : -
1. That the duty imposed by the act of incorporation re- quired on the part of the controller an exercise of discretion
379
JOHN W. HARRIS.
or judgment, and that a mandamus would not lie to control his discretion.
2d. That under the Constitution, the court had no power to compel an officer of the executive department, nor any member of the body of magistracy of said department, whose powers are defined by the Constitution, to perform an official duty.
The duties of the Governor, of the Treasurer and of the Controller being defined by the Constitution, it was con- tended in argument by the counsel for the Controller, that each of these was supreme in his own department.
" If this position be regarded as untenable," say the counsel, " then, let us suppose that a peremptory manda- mus had been awarded against the Controller, which he refused to obey. What then would be the remedy against him to enforce the judgment of the court? It must have been to attach the Controller for a contempt of court, and to imprison him till he complied with its order.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.