USA > Texas > The bench and bar of Texas > Part 39
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" ' The concession is unconditional,' said the court, and it was sustained as title. But while this was done the court clearly points to the change of regulation in 1798, under which a different conclusion would have been arrived at and a different decision made.
" In truth, in all of the cases in which grants made by the government of Spain have been sustained, these grant- were made by persons duly authorized and depending on no conditions which had not been performed - they were abso- lute grants, made by competent authority, and were hence held valid, as they should have been.
" The whole subject is fully reviewed by Mr. Chief Jus- tice Hemphill, in the case of Paschal v. Perez, and the con- clusion arrived at that the title of Perez was inchoate and imperfect, and that an imperfect title, emanating from a former, and unrecognized by the existing, government, forms no foundation for an action, and can have no stand- ing in a judicial tribunal.
" So in the case of Menard's Heirs v. Massey, the Su- preme Court of the United States, after reviewing and re-examining the cases previously decided by that court, arrived at precisely the same conclusion, saying : ' From the first act, passed in 1805, Congress has never allowed to these claims (imperfect titles ) any standing other than that of mere orders of survey, and promises to give title; and which promises addressed themselves to the sovereign power in its political and legislative capacity, and which must act before the courts of justice could interfere and protect the claims. And so this court has uniformly held.
" It will be remembered that, in the case last mentioned,
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the title presented was one substantially the same as the title presented in this case and that relied upon in Paschal v. Perez. And the court held it to be --- as this court has held those of Perez and Cubier - inchoate and imperfect.
" Again, in the language of Chief Justice Hemphill : ' Was the act of the Governor (Cordero ) final, or was it under the control of the Intendant, depending for its validity upon its confirmation?' Under the law then in- force, as understood by the court and by Cordero himself, it is distinctly enunciated that such titles were not valid without confirmation by the political authorities, and that at that time the power to confer absolute titles or grants to lands was vested in the Intendant.
" We might make further extracts from the same case, but the familiarity of the court with its conclusions and rea- soning makes it unnecessary.
"The argument of the appellees' counsel endeavors to maintain, that after the 24th day of August, 1770 (should be 1774), the political and military Governors of provinces had the right of granting and distributing Royal lands.
" This is probably true, so far as the provinces of Louisi- ana and West Florida were concerned, but only as to those provinces. At least so it would seem from the communica- tion addressed to the Intendant of Louisiana (Moralez ) on the 22d of October, 1798, and the royal order addressed to Gazoso de Lamos, Governor of Louisiana, on the same day. It was also so regarded by the Supreme Court of the United States in the case of U. S. v. Moore, 12 How. 219.
" But it is equally true, that so far as the power had been vested in the Governors, it was recalled by that very order, which reads as follows : -
"' The King has resolved, for the sake of the better and more exact observance of the eighty-first article of the Royal Ordinance for Intendants of New Spain ( not the province of Louisiana alone ), that the exclusive faculty of granting lands of every class, shall be restored to the Intendnacy of that province, free from the interference of any other au- thority in the proceedings as established by law (evidently the Regulations of 1754), consequently the power hitherto
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residing in the government to those effects, is abolished and suppressed, being transferred to the Intendancy for the future.' (2 White's Rec. 477, 478.)
" On the same day - October 22, 1798 - a substantial copy of this order was transmitted to Morales, the Intend- ant, for his guidance. (2 White's Rec. 245. )
" Now, this order refers to the thirty-first article of the regulations of 1754, and is made for its better observance in the province of Louisiana. Hence, it would seem that in that province the article mentioned had never been in force, or that it had been recalled, or had not been observed as it should have been. The article read thus: 'The Intendants shall also be the exclusive judges of the causes and questions that may arise in the district of their provinces, about the sale, composition and grant of royal lands, and of seigniory, it being required of their possessors, and of those who pretend to new grants of them, to produce their rights, and institute their claims before the same In- tendants,' etc. (2 White's Rec. 69. )
" Again, if the same relaxation of the eighty-first article of the regulations 1754 had occurred in the other provinces of New Spain, then the practice was also 'abolished and suppressed ' in such other provinces by the same order of 1798. There is nothing from which relaxation can be in- ferred, but the order seems intended to correct any abuse or practice in that regard, for it expressly refers to the In- tendants of New Spain, and not to him of Louisiana alone, and declares that it is given for the better and more exact observance of the eighty-first article by the Intendants, transferring the power to them for the future.
" It seems that on the 24th of November, 1735, a royal decree was issued, requiring all persons who would enter upon the lands in the provinces, to apply to the king in person (2 White , 62), and that in order to do away with this inconvenience, the ordinance of 1754 was established, by the eighty-first article of which, as we have said before, the power to grant lands was vested in the Intendants of the provinces, which were established by the same ordinance - one of the Intendancies being located at the City of San
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Luis Potosi. Then the Intendancy of San Luis Potosi was governed by the ordinance establishing it, and all grants of land within its limits, or confirmations of imperfect titles, must, under those regulations, have emanated from it.
" Regulations, such as those issued by Morales in 1799, may or may not have been made by the Intendant of San Luis Potosi. Whether there were or not, does not appear to be definitely known. We admit, however, that the ordinance of 1754 was binding upon him, and that if a different practice had afterwards prevailed, that ordinance was fully restored and the power to make grants re-vested by the order of 1798. Whether the regulations of 1805, to to which Governor Cordero refers in directing Mrs. Cubier to present her title to the Intendant of San Luis Potosi for confirmation, contains provisions similar to those of Morales, we are not informed, though the only inference that can be drawn from that direction is, that there were such regula- tions, or, in the language of Chief Justice Hemphill: 'So far as we are informed of the laws then in force, they were not misunderstood, but correctly interpreted by the Governor. The Intendant, in the language of the ordi- nance, is the exclusive judge of causes and questions arising about the sale, composition, or grant of lands.'
" We maintain, then, that in Coahuila and Texas, they did not have such regulations as those of Morales. They cer- tainly had those of 1754, which are all-sufficient. That they had no treaties with the United States we freely con- cede; but that fact rather weakens than strengthens this case.
" Nor is it claimed that the royal order of 1798, the regu- lations of Morales, or the ordinance of 1754, had any extra- territorial force. The principle we contend for, and which has been established and re-affirmed by this court, and all courts where the same question has arisen, falls within the ordinance, the order and the regulation under it; and, it seems to us, that when the counsel for the appellees con- cedes, as he does, the legal effect of the action of Morales, he gives up the whole controversy.
" He does the same when he says that he is . strongly for-
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tified by the universally accepted doctrine, that a public officer exercising certain powers pertaining to his office, is presumed to be possessed of the power until the contrary is shown.' For when he invokes and applies this pre- sumption to the act of Cordero in making the imperfect title to Mrs. Cubier, he must take it with its entire effect, viz .: that the act was done with all the power vested in him and no more. And that power fell very short of making an absolute grant, or passing the fee. This follows as a necessary sequence, without calling to aid that other doc- trine, that the officer is presumed to know the extent of his power. Hence, when Cordero made the imperfect grant in question - knowing that he had not the power to make a full grant - he directed his grantee to repair to the Intend- ant for its confirmation.
" Whatever ceremonies may have been performed by Cordero, or by the alcalde under his orders, in granting such title as he could grant, whether such ceremonies were idle or otherwise, can not affect the character of the title. That can not gain strength by the declaration in the instru- ment, that as evidence of true possession, Mrs. Cubier was taken by the hand and walked over the two leagues ; that she plucked grass, washed earth, etc., etc. Whether any or all of these were actually done or not - although all these things were declared to have been performed in the name of the king, her title would, nevertheless, remain an imperfect one, requiring confirmation, which was never obtained.
" That Mrs. Cubier could have defended her possession against a trespasser, we do not deny. She could have done the same under a resignardo, which gives protection to a claimant until a survey can be ordered, or until the title of possession issued by an authorized commission. So she could under a lease ; same under a naked possession, though it might not have been lawful at its inception.
" Counsel complains that this is called an Amparo. Now, an Amparo is given to one in possession, and secures him in that possession; when issued to a claimant, it protects him in his claim. In what is the title, presented in this
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case, different? It amounts, at best, to an incipient, in- choate or imperfect title - which is conceded, by the coun- sel, to be its character - though he makes the concession only for the sake of the argument. But he argues himself into a wrong conclusion. He contends that it would re- quire an act of the sovereighty, assuming the possession, or the manifestation of a desire to do so, while it is held in all the adjudicated cases, that the title remains in the sover- eighty of the soil until by some act of the political author- ities, they have parted with it.
" There is one view of this case, which we will present for what it may be worth. Cordero issues the imperfect title to Mrs. Cubier as the Governor of Coahuila, though he represents himself also as Governor ad interim of Texas. This might raise a question as to his authority so to repre- sent himself; for it is a historical fact, that Coahuila and Texas were not united until the adoption of the Constitu- tion of 1824.
" However Texas may have been regarded by the king and people of Spain, there are some scraps of history in con- nection with its occupation and first settlement, from which it might well be inferred, that the regulations made for the government of Louisiana and Florida would be more ap- plicable to Texas than any of the other Spanish provinces now constituting Mexico.
"Thus, for instance, the first European visitors to the shores of Texas were a colony of French emigrants led by La Salle, who landed in Matagorda Bay, and erected a fort (Fort St. Louis) on the La Vaca. He was murdered in 1687. In 1689 Capt. De Leon, a Spanish officer, was dis- patched to the La Vaca to hunt out the French. In 1691 a Spanish Governor of the region was appointed, but in 1693, owing to the hostility of the Indians and other causes, the settlement was abandoned. The Spaniards at that time had settlements at El Paso and at San Juan Bautista, both on the right bank of the Rio Grande, but both now within the limits of Texas. In 1714 the French again attempted a settlement within its limits, and Crogat, to whom Louis XIV. had granted the whole of Louisiana, sent an expe-
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dition, which penetrated from the Sabine to the Rio Grande.
" Efforts were made by both France and Spain, with varied success, to hold the territory, until in 1763 the feud was finally terminated by the cession of Louisiana by France to Spain. When, in 1803, Spain re-ceded Louisiana to France, the latter ceded it to the United States, and ' as there had been no well defined boundary between Louisiana and the Spanish possessions west of it, a controversy at once en- sued between Spain and the United States,' the latter claiming to the Rio Grande. This controversy continued until 1819, when in the treaty for the cession of Florida the country west of the Sabine was guaranteed to Spain. How distasteful this treaty was to the people of the Western and Southern States of the Union, is shown by subsequent history - by the invasion gotten up in those States.
" It will be remembered that this claim of the United States to the Rio Grande was much discussed about the be- ginning and during the war with Mexico, and one of the reasons why the annexation of Texas was justified - or rather advocated - was that Texas in reality was a portion of Louisiana.
From this part of our early history, it appears that Spain herself did not obtain a clear, undisputed title to the Terri- tory of Texas until its cession of Florida in 1816. And from this it may also be inferred, that although Spain nom- inally or really valued the Province it did so in connection with its possession of Louisiana, and after the cession of the latter, with Florida, until finally its claim to Texas was confirmed, its title acknowledged, and the Province was united with Coahuila in 1824, as before stated.
" If that part of our history leads to the inference we suggest, then the regulations of 1798 were clearly applicable to Texas. If, on the other hand, our inference should be thought to be incorrect, the royal regulations of 1754, and all that has been said in relation to that part of the case, necessarily lead us to the same conclusion : that the title of Mrs. Cubier was imperfect, and as such can have no standing in a judicial tribunal ; that it was never confirmed,
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as the law of the time required, and that, therefore, no re- covery can be had under it.
" While we may, and do, give due credit to the ingenious and able argument of the counsel, and while we appreciate his diffidence in asking the court to take the ' new depart- ure' heretofore alluded to, we must insist that we have failed to discover any good reason why the change desired should be made.
" Believing that the court will adhere to its decision we deem it unnecessary -perhaps improper - to say anything in regard to the ' other bill of exceptions ' alluded to by the counsel for the appellees.
" In relation to the defendants who have not appealed, we will simply say - lest it might be thought there was slight error in the judgment of this court - that the defendants, against whom the judgment of the District Court was ren- dered, were Geo. W. Paschal, the estate of I. A. Paschal, and Gideon Lee. These have all appealed. There were several other defendants - settlers on the land - against whom there was no judgment, but a judgment in their favor, upon the plea of the statute of limitations. These, of course, did not appeal. And as the cause is dismissed and they can not be troubled again by new litigation, there is no reason why the judgment should be changed as to them."
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A. W. TERRELL,
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Alexander Watkins Terrell, one of the most gifted lawyers of the Texas bar, was born in Patrick County. Virginia, on the 3d of November, 1829. His father, Christopher Joseph Terrell, a descendant of an old Eng- lish family, was also a native of Virginia, and was a distinguished physician. His mother was a daughter of Joseph Kennedy, of Augusta County, Virginia, and was of German ancestry. In 1832 the family immigrated to Cooper County, Missouri, where the subject of this sketch was reared and received his primary education. He completed a thorough course of studies in the University of Missouri, and in 1847 began the study of law at Boonville, in the office of Judge Peyton R. Hayden, one of the most emi- nent jurists in the State.
He was admitted to the bar in 1849, and began the prac- tice of law at St. Joseph, where he pursued his profession with distinguished success and rising reputation until the year 1852, when his genius and ambition seeking the most ample field and satisfied with nothing but the most inviting possibilities, he removed to Austin, Texas, the destined seat of a great empire, which spread before him its unbounded scope of enterprise and its spacious lap of wealth and pros- perity. At Austin he immediately entered upon a brilliant career which has been interrupted only by the disorganizing throes of revolution and the absorbing energies of civil war. In 1857 he was elected judge of the Second Judicial District, and in consequence of the trammels of a judicial office, though a strong Southerner in soul and sentiment, he took no active part in the immediate political measures which accomplished secession and precipitated the war. In 1863, at the expiration of his term of office, he entered
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the Confederate army as lieutenant-colonel of the Thirty- fourth Regiment of Texas cavalry, but was soon afterwards promoted to the rank of colonel, and commanded that regiment until near the close of the war. He led his com- mand in the battles of Mansfield, Pleasant Hill, Jenkins' Ferry, and other engagements during the campaign against General Banks. He was a most efficient officer, and in 1865 was promoted by General E. Kirby Smith to the rank of brigadier-general and was in command of a brigade at the termination of hostilities.
When the war ceased he settled at Houston and resumed the practice of law ; but in 1867 retired to his plantation in Robinson County, and during several years devoted his attention to his planting interests. In 1871 he returned to Austin, and has since that time devoted himself to his pro- fession and to the duties of a legislator and reporter of the Supreme Court.
In 1875 he was a member of the State Senate, and was distinguished for his zealous and able efforts to purge the laws of Texas of the degrading features introduced during the reconstruction regime, and to purify the jurisprudence of the State. With this view, his first act was to effect a radical improvement in the jury system, by requiring of jurors in both civil and criminal cases, the qualification of being able to read and write. This law, which is still in force in Texas, has greatly curtailed the evil of professional jurors, closed the avenues of corruption which converged upon the jury rooms, and clothed the attainment of justice, at least with the purity of intelligence ; and it would be well for the best interest of society if all the other States of the South were to follow the example. He was again a member of the Senate in 1879, and was efficient in procuring the adoption of provisions for the erection of the new capital.
In conjunction with his partner, Judge A. S. Walker, he reported thirteen volumes of the decisions of the Supreme Court of Texas -- from the thirty-eighth to the fifty-first volume inclusive, and has since then reported individually eleven volumes, including the fifty-second and sixty-second volumes. He is at present chiefly engaged in the duties of State Reporter.
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Judge Terrell is a lawyer of fine ability, and in intellect. ual capacity and literary attainment has no superior at the Texas bar. He is a fluent speaker, and his culture extend- to all the departments of science. His analysis of the deci- sions of the Supreme Court indicates scholarly ingenuity and professional excellence, and his legal and legislative accom- plishments have adorned the jurisprudence of the State. His speech on private corporations, delivered before the literary societies of the University of Missouri in June. 1885, presents an interesting exposition of the history. character and tendencies of these legalized aggregations of wealth and power - that they demoralize their owners, breed public corruption, and are inimical to independent labor and a free ballot. While the discussion of these char- acteristics of private corporations has been hackneyed by law writers, politicians and writers on political economy, Judge Terrell has clothed them with an application to the present state of society which has attracted public atten- tion and should excite public interest - not that interest which is expressed in a hostility to the existence of institutions which have developed the country, rescued Texas from being the refuge and hiding place of every des- perado and criminal that could escape from the older States, and planted a village in every inviting valley, and a home on every productive hillside ; but that interest which awak- ens and asserts individual rights, and a watchful guard against any real tendencies which may threaten their detri- ment. This done, and politics will be found to be the only influence that can endanger the liberties of a free and intel- ligent people.
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GEORGE GOLDTHWAITE,
GEORGE GOLDTHWAITE.
The subject of this sketch was born in Spartansburg dis- trict, South Carolina, on the 27th of May, 1830. His father, Robert H. Goldthwaite, was a native of Massachu- setts, but removed to South Carolina at an early age and became an able lawyer at the bar of that State. In the latter part of his life he retired from the practice and de- voted himself to the duties of a planter, on a farm in Mont- gomery County, Alabama. Here George Goldthwaite was reared until he was fourteen years of age, and at the death of his father which occurred about this period, the family being in reduced circumstances, he found himself thrown upon his own resources and dependent upon his own exer- tions to obtain an education.
But undaunted by his prospects and the difficulties which surrounded him and armed with an unswerving determina- tion he sought the first avenue which presented to him the path of independence and success, and in 1844 entered upon the duties of a clerk in a mercantile house in the city of Montgomery. He pursued this occupation, devoting his leisure hours to miscellaneous reading and to the study of law until the year 1853, when he immigrated to Texas and located at Houston, when he again entered a mercantile house as book-keeper, and served in this capacity four years, continuing in the meantime to read law as the duties of his position afforded him opportunity. During this time he was married to Miss Louisa Stone, daughter of a Presbyterian minister, and gained the inspiration and en- couragement of an accomplished and noble companion in his efforts to obtain a place and a name among men. In 1858 he was admitted to the bar and spent several months traveling through the State in search of a promising location
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for the pursuit of his profession, but finally returned to Houston, where he began his practice and continues to re- side.
Ås a lawyer Mr. Goldthwaite occupies an eminent posi- tion at the bar of Texas - a place fully commensurate with the hopes and aspirations of his youth. Trained from his early youth in the school of self-reliance his virtues were shaped by the mould of circumspection and invigorated by the demands of necessity. His early life was stamped with a fixed purpose and his ambition inspired indefatigable effort. With a strong and resolute hand he tore away the obstacles that lay in his path and pushed onward to a noble destiny. Devoted to the duties of his profession, he has never held or sought political or military preferment, though he has always been a thorough Democrat, and deeply imbued with the views and sentiments which dic- tated the policy of the Southern people in their efforts to free themselves from the hostile and aggressive elements of the Northern portion of the Union.
After the war Mr. Goldthwaite resumed the pratice of law at Houston. He had before that time been employed as the regular attorney for the Texas Central Railroad Company, and has since then devoted himself chiefly to its service. He has, therefore, been engaged in many of the most important railroad cases that have come before the courts of the State, in which he has been remarkably suc- cessful, and is considered one of the best corporation lawyers in the country.
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