USA > Texas > The bench and bar of Texas > Part 4
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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
Each county is required to elect four county commission- ers, who, with the county judge as presiding officer, have general police supervision of the county, and provide the required precincts for the election and jurisdiction of the justices of the peace. The latter have jurisdiction in all criminal matters in which the penalty or fine does not ex- ceed two hundred dollars, and of all civil cases with like limitation of the amount involved, of which exclusive original jurisdiction is not given to the District or County Courts.
This system, which forms a part of the present organic law of Texas, not only furnishes ample and efficient ma- chinery for the accomplishment of the object of all good governments - the protection of life, liberty and property ; but its various jurisdictions are so distinctly defined and so admirably adjusted that every relation of society can be readily assigned to the province of justice best adapted to its needs.
In view of the large accumulation of business in the
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Supreme Court and Court of Appeals, and to afford facility for the utmost expedition in those tribunals, the Legislature in July, 1879, established a commission of arbitration and award consisting of three persons learned in the law, and to be appointed by the Governor by and with the advice and consent of the Senate. This Court, styled by the act "Com- missioners of Appeals of the State of Texas," is required to hold its sessions at the same times and places as the Supreme Court. It had power under the creative act to prejudge and pronounce award upon all civil cases pending in or brought up to the Supreme Court or Court of Appeals, of which the parties interested, or their attorneys, might give consent in writing to the arbitration; and it was re- quired to report its conclusions and awards to the court from which the cases were taken in commission, accom- panied by a brief synopsis of the case and the facts which formed the basis of its opinion, and this became the judg- ment of the court.
The acts of February, 1881, and March, 1883, author- ized the Supreme Court and Court of Appeals to refer any civil cases to the Commissioners of Appeals without refer- ence to the consent of the parties, and made it their duty to do so when necessary to promote an early disposition of cases pending before them. The opinions of the commis- sioners, when adopted by the court to which they are re- ported, are to be the published opinions of the respective courts. The Commissioners Courts are to be governed by the same rules and regulations that obtain in the Supreme Court. They may issue writs of certiorari in order to per- fect their records, and they may punish for contempt. The commissioners hold their office for two years, and receive the same compensation as the judges of the Supreme Courts.
The introduction of the common law of England as to crimes, penalties, juries, evidence, and the writ of habeas corpus; and the adoption of the civil code and practice of Louisiana in regard to successions and remedial writs, have already been mentioned in the chapter devoted to the jurisprudence of the Texas Republic. The character,
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growth and development of this mixed and excerpted system will now claim attention.
The entire system of Texas civil jurisprudence is founded chiefly upon principles of equity. The adoption of the common law by the act of 1840 as the law of the land, in conjunction with the ordinances of the Consultation and Provisional Government, and the acts of the Texas Con- gress then in force, in no manner disturbed the foundation upon which those acts and ordinances rested. The laws and institutions of the State ot Coahuila and Texas being colored, more or less, by the tenets and precepts of the Catholic religion, and being written in a foreign language, were distasteful to the people who had emigrated from the United States, and formed a large majority of the popula- tion of the Texas Republic. These laws, except such as related to land grants and reservations, were, as has been remarked, entirely abolished by the act of 1840; and such as remained unrepealed prior to that time continued to be confined to their original scope, and to bear the crude stamp of their Mexican origin. They formed no basis for the statute laws of the Republic. It is true that an analogy was maintained between them, but only such as was neces- sary to prevent the inconvenience and conflict which must always arise from sudden changes of law in regard to tenures, inheritance and vested rights.
The Texas legislators being thus untrammeled by vassal- age to any system, and being free to weigh the truth of precedent, and to judge of the soundness of mouldy maxims and antiquated principles, were guided alone by that philosophy which, in their opinion, formed from broad and unbiased views, was best calculated to promote the interest and welfare of society. They revised, in a measure, both the common and the civil law, and plucked such features and rules of conduct from each system as they deemed perfectly adapted to the best regulation of society, and to the most perfect adjustment and protection of individual rights.
They rejected the idea of separate courts of chancery, clogged with their antiquated forms and ceremonies, and
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harnessed the whole system of equity to the simple machin- ery of law. Yet, strange as it may seem to a lawyer of the old school and orthodoxy, its scope and efficiency are in no wise restrained by the association; but, while it traverses concurrently with law the entire field of legal rule, it reaches its arms beyond the scope of the strictum jus of law, and seizes upon every artifice of cunning and deceit, parries the vis major of every event of accident and misfortune ; and embraces every civil right and civil wrong which find cognizance at the bar of human reason. ' Thus elevated above the crude and confused administration upon principles of imaginary conscience and supposed right, which characterized its subserviency to the rules of law, the equity of Texas jurisprudence sheds a benign influence upon every feature of society, and opens the door of justice to all the multiplied concerns of life.
The act of 1840 especially excepted the application of the common-law rules of pleading to procedure in the Texas courts, and the civil-law methods by petition and answer in the mode still used in Texas judicature. The petition must set forth clearly, and in a logical and legal- ized form, without distinction of law and equity, the facts constituting the cause or action. The answer must in like manner present the grounds of defense, and may join as many issues of law or fact as the circumstances of the case will permit. It is not necessary for the plaintiff to deny any special matter of defense pleaded by the defendant, it being regarded as denied unless expressly admitted ; but when the defendant sets up a counter-claim, the plaintiff may answer in capacity of defendant, under the rules pre- scribed for defensive matter. The plea of reconvention, or counter claim, was obtained from the civil law, and it may be set up in all actions except those for unliquidated damages founded upon tort or breach of contract.
The fictions of the common-law action of ejectment are unknown to Texas jurisprudence, and the method of ascer- taining title to realty is by an action of trespass to try title. This action may be accompanied and abetted by the civil- law writ of sequestration, which puts in issue the right of
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immediate possession. This writ delivers the property, whether real or personal, into legal custody, subject to · replevin, until the title or right of possession is deter- mined. It may, upon proper affidavit, be issued to protect the property of married women during suits for divorce, pending the suits for either the title or possession of per- sonal property, and for the foreclosure of mortgages. It may also be issued to preserve property for the satisfaction of, debts not due, if the affidavit of the plaintiff shows it ·to be necessary. It may be issued by any judge or justice of the peace, at the beginning or during the progress of the trial at any time before final judgment. But it can not be issued in any case until the party seeking the remedy makes an affidavit in writing that he is the owner of the property upon which he invokes the operation of the writ, or of some interest in it, and is entitled to its possession.
Common-law process has never been in use in the Texas courts, and the introduction of common-law terms did not al- ways import the rules of that system as to the matters in regard to which those terms are used ; hence the term scire facias is often used in reference to mere notice. Nor does the writ of certiorari possess here entirely the same features which characterize it under the common law. It is not considered a writ of right; but rests solely in the discretion of the court, to be exercised upon principles of equity, except when it is invoked within two years by persons interested in the estates of decedents, or by those who have within that time been relieved of disabilities, to revise in the Dis- trict Courts the probate proceedings of the County Courts.
The rules regulating marital rights in Texas are of civil- law origin. The community interest subsisting between hus- band and wife, in all property acquired during coverture, except by gift, devise or descent ; the preservation of the separate interest of each in all property owned by either prior to the time of marriage, with the entirety of the community property to the survivor, or survivorship of one-half of the ganancial estate, if there be children ; the descent to the survivor of one-third of the separate per- sonalty of either in fee simple, and one-third of the
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separate realty for life, constitute a system of distribution far more provident and equitable than the antiquated common-law devices of dower and curtesy.
The common-law rule of inheritance established in Shelly's case never operated upon Texas jurisprudence. Every owner of property is considered a purchaser. There is no distinction made as to its source; and no person not in being at the death of the testator, except children and lineal descendants, can partake of the right of inheritance. The statute of descent and distributions follows rather the precepts of the civil law in determining both the nature of devise and the line of descent ; but degrees of consanguinity are ascertained and reckoned by the rules of the common law, and no marriage agreement can change the order of descent
The Spanish law would not permit a testator to dispose of more than one-fifth of his property adversely to his heirs and lineal descendants or ascendants; and this law, with the disposable portion increased to one-fourth, was of force in Texas until the passage of the act of 1856, which abolished the doctrine of forced heirship and permitted all persons to dispose of their entire property, either by will or otherwise, in any manner they might deem proper.
Neither the civil nor the common law permitted the possession of liberty or property exempt from the claims of creditors, and it was not until the enlightenment and humanity of the present age cried out against its barbarity, that imprisoment for debt has been abolished in most, if not in all civilized countries. But this emancipation from its rigors extended no further. While it could no longer gather its victims into debtors' jails and leave them to languish and die in loathsome dungeons, it had universal power to seize upon the last necessary of life, and reduce them to utter destitution and starvation, with a claim upon every morsel of subsistence they might acquire. And while the cruel practice of this atrocious doctrine shocked the humane sensibilities of the philanthropie world, nothing was devised to remedy so great an evil. No statesman dared to encounter the strength of a custom which had existed
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from time immemorial, until the Congress of the Texas Republic, springing into life, freed from every shackle of false philosophy, enacted a law in 1839, exempting and reserving to every citizen or head of a family in the Republic, free and independent of the power of any writ of fieri facias, or other execution, fifty acres of land, or one town lot, including his or her homestead, with improve-
- ments to the value of five hundred dollars; household and kitchen furniture not exceeding in value two hundred dollars; implements of husbandry to the value of fifty dollars ; all tools, apparatus, and books, belonging to the trade or profession of any citizen ; five milch cows, one yoke of work oxen or one horse, twenty hogs, and provisions for one year. This generous act shook the maxims of antiquity, startled the State govern- ments of the American Union, and they hastened one by one to follow the benevolent example. It drew many a steady yeoman from the States who sought to place his wife and little ones under its protecting ægis, beyond the reach of fickle fortune and overwhelming fate.
This act was the forerunner and foundation of the still more bounteous and munificent law organized and embodied in the organic system by the Constitution of 1845, which increased the homestead exemption to two hundred acres of land, or, if a town lot, to two thousand dollars in value, made it inalienable by the husband without the wife's consent, and incapable of being incumbered by ordinary liens.
The present Constitution, adopted in 1879, increases the homestead exemption, if consisting of a town lot, to the value of five thousand dollars at the time it was selected as a homestead, regardless of subsequent improvements or increased value, prohibits the partition of the homestead during the life of the survivor, so long as it is maintained as such, and so long as the guardian of the minor children of the deceased may be permitted to occupy it by the court having proper jurisdiction. The Constitution of 1879 also greatly enlarges the exemptions of the act of 1839 as to
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personal property ; so that an independent means of sub- sistence is secured against accident, improvidence, or mis- fortune to every family in the State.
The land laws of Texas are of a complex and peculiar character ; and it would require a volume to trace the vari- ous features, changes and multiplied conditions, which have characterized title and the manner of acquiring it under the sovereignty and power of eminent domain exercised over the soil respectively by Spain, Mexico, Coahuila and Texas, the Republic, and State. This work can therefore embrace only a notice of the chief features and peculiarities of the land laws which have existed at different times since the Texas Revolution, and of the system which now prevails in the State.
At the outbreak of the Revolution all land titles in Texas, which were not derived immediately from Spanish or Mex- ican grants, emanated from the deeds made by alcaldes and land commissioners under domain grants of the State to empressarios - persons who had contracted with the gov- ernment to import into the country as many as two hundred families under the colonization laws of Coahuila and Texas, enacted in 1825. These laws were evidently acts of usur- pation of a power which belonged alone to the national government. For the Mexican government possesses the right of eminent domain over the soil in all the States of the confederation, and the Mexican States are therefore mere creatures of the national government.
Prior to the acquisition of Louisiana and Florida the United States government did not exercise the right of eminent domain over any of the States and territories of · the Union, except those portions which it had acquired by cession or purchase for national purposes. The right was originally vested in the States which created the Union, and they still retain it, except perhaps so much as is necessary to effectuate the judgments and execution sales of the Fed- era. courts, tribunals which ought not to exist in the States, for the reason that to give effect to their proceedings they require virtual participation in a power sacred to the States, upon which their sovereignty rests, and which they can not
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surrender to the Union, nor divide with it in any respect, or to any degree, without impairing all their other rights.
In regard to this power there is a curious decision in the case of McMullen v. Hodge, 5 Texas, 74, which declares that the power of eminent domain flows from the un- trammeled will of the people, expressed in laws of their own making. With all due respect the author can not withhold his dissent from this definition. If this be true, all the teachings of reason and writers are false, and it would upset the whole theory of government. There can be, no sovereignty without this power, and it must exist prior to any act of sovereignty. The sale of lands for taxes and under execution is an act of the untrammeled will of the people expressed in laws of their own making, in this country ; but the power of eminent domain must pre-exist in order to give effect to both the law and the sale. Strip the quality of lord paramount of the soil from the Czar of Russia and every jewel in his diadem would fall to the ground. It is true that in this country the power resides with the people and gives them the right to exercise their untrammeled will in laws of their own making; which flows from the power.
The right of eminent domain being the foundation and essence of sovereignty, one of the first acts of the Provis- ional Government of Texas was the assertion and exercise of this power in the suppression of all operations under empressario grants, and in the discontinuance of all former methods of alienating the public lands. The Republic acquired the right by revolution, and the public domain of Texas was especially reserved to the State in the articles of its annexation to the Union.
But notwithstanding the overthrow of the former system, the provisional act provided that all citizens who had be- come entitled to lands under the colonization laws of Coa- huila and Texas should still receive them, and that all persons who might immigrate to Texas and perform the duties of citizens during its conflict for constitutional liberty, should likewise enjoy the benefits of the colonization laws under which they immigrated. These provisions were the
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foundation and beginning of the benign head-rights system under which the larger portion of the lands of the State have been granted. They were followed by the bounty acts of 1835; which gave eight hundred acres of land to every soldier in the Texan regular army, six hundred and forty acres to every volunteer, and the same to the heirs of those who might fall in battle or die in the service.
In order to carry these measures into proper effect, a general land office was established in June, 1837, and placed under the control of the Secretary of War, who was re- quired to give certificates to all persons entitled to lands under the bounty acts, and to record them in his office. In December, 1837, this act was extended so as to embrace all soldiers who were engaged in the battle of San Jacinto and the storming of Bexar, to whom company officers were required to give the certificates ; and it embraced the heirs of all who fell at the butchery of Goliad, the seige of the Alamo, and other battles. Another act, passed about the same time, increased and graduated the bounties from three hundred and twenty to twelve hundred and eighty acres, according to time of service, and these lands were made inalienable during the life of the donee. These acts of bounty and donation confering head-rights for military services extended to 1858, and included all soldiers engaged in the war for independence.
These grants, with the head-rights given also to every immigrant or head of a family, and to every male over eighteen years of age, who was a citizen of the country at the time of the Declaration of Independence and remained true to the Texan cause, composed a system and policy, which were as provident of the increase of population as they were benevolent in spirit and operation.
In consequence of the magnitude of business inaugurated by these provisions, an act was passed in 1837 establishing a separate land office, and providing for a general land com- missioner to preside over the interests of the Republic in respect to its public domain. He was to be appointed by the President and maintain his office at the seat of govern- ment; yet it seems that this office was not opened to all
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classes of grants until 1844, and its business prior to that time was confined chiefly to bounty and donation grants to soldiers and head-rights to citizens, who were dutiful dur- ing the struggle for independence. The Secretary of War continued to issue bounty and donation warrants until the close of the Texan war office in 1846, and this branch of his business was then assigned to the adjutant-general of the State.
The act of May, 1846, establishing a general land office at the seat of government, gave the commissioner power to execute and perform all acts and things respecting the public lands or the rights of individuals in reference to them, and provided him with an ample corps of clerks and assistants. This was the beginning of that extensive sys- tem, with its perfect and harmonious machinery, which now embraces the supervision and entire management of the public domain of Texas ; and which, under the present efficient commissioner, Maj. W. C. Walsh, casts an eye of scrutiny upon every transaction concerning the publio lands, which it is scarcely possible to evade.
But to comprehend the necessary steps for obtaining patents under this precise and complicated system, and to know where to find evidence of ownership requires a thorough knowledge of its appurtenances and operations. Muniments of title are scattered throughout the entire judi- cial system of the state, and to trace an old land title through all the variety of grants and modes of conveyance, with their various conditions and requirements ; through the operation of wills, marriage, forced heirship, limita- tions, executions and tax sales; through the obscuring as- sociation of conflicting locations, adverse surveys, dupli- cate certificates and fraudulent grants, is perhaps the most tedious task that a Texas lawyer could be called upon to perform.
Every organized county in the state, which maintains a legally qualified surveyor, constitutes a separate land dis- trict. The district or county surveyor is required to exam- ine the field notes of all surveys made in his district by his authority, upon which patents are sought to be obtained,
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and certify to their legality and correctness ; and he is also required to keep in his office a map subject to public in- spection, on which all the surveys made in his county are plainly indicated. He is commanded to transmit every three months all sketches and field notes made during that time to the commissioner of the general land office, and also a full description of all land certificates and warrants on file in his office.
Any person desiring to make an entry or location of land must apply in writing to the county surveyor, and file with him the evidence of his claim or title to the land which he wishes to have surveyed ; also a certificate, if of the first or second class, certified by the clerk of the County Court, or commissioner of the general land office. The application, evidence of title or claim, and the field notes of the survey are then transmitted to the general office, where the whole matter is subjected to thorough investigation, and if the claim is found to be genuine and correct a patent is issued to the applicant in the name and under the seal of the State, signed by the Governor, countersigned by the commissioner and registered in the general land office.
Every head of a family without a home can obtain a homestead donation of one hundred and sixty acres, and every young man in the State eighteen years of age can have eighty acres, anywhere in the public domain, simply upon entry and compliance with the foregoing requirements as to survey. But to prevent fraud no patent can be issued upon these donation certificates until the expiration of three years of continued occupancy by the settler or those who claim through him.
A provision no less benign is that which gives the right of pre-emption. Every person in the State, who is eighteen years of age, has the privilege over all others to purchase and pre-empt within one year, at one dollar per acre, in- cluding the improvements, one hundred and sixty acres of the public land, upon which he may have entered and set- tled in good faith, provided that he makes application for a survey and certificate of the right at the time of occu- pancy.
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