USA > Texas > The bench and bar of Texas > Part 5
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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
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These benevolent laws have established thousands of Texan familes in a condition of happiness, prosperity and use- fulness. There is no excuse for healthy indigence. The State stands with the outstreched arms of welcome and benevo- lence. With one hand she beckons the enterprising and industrious, and with the other she points every person to a home who enters her borders.
But amid this benign efulgence of Texas jurisprudence its liberal and comprehensive educational system presents, if possible, a superior glow. No State, no country, ever made such ample and durable provision for general public education as that which graces the statutes of the State of Texas, and only a matter of time can intervene before her higher institutions of learning will take their stand among the best endowed and most efficient in America.
The Texas Republic, by an act in 1839, set apart fifty leagues of land for two universities, and three leagues in every county for the purpose of establishing in each a primary school or academy, and this was increased by the act of 1840 to four leagues, appropiated in each county to school purposes. These were protected from settlement by the act of 1856, which precluded settlers upon the school lands from the benefits of the statute of limitations. The constitution of 1845 required one-tenth of the annual rev- enues of the State to be set aside for educational purposes, and the act of 1854 appropriated to this fund two millions of United States five per cent bonds, which was to be a special school fund with the interest accruing to school pur- poses. The act of 1858 established the University of Texas and appropriated one hundred thousand dollars of United States bonds for its maintenance, in addition to the fifty leagues set apart for university purposes by the Republic, and to this was added one-tenth of all the lands which had been reserved and set apart for the encouragement of the construction of railroads.
A large portion of these funds and the proceeds of the sales of the school lands were used in appropriations for frontier defences during the civil war, and together with those loaned to the railroads, which were permitted to re-
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place them with treasury notes and coupons of the Confed- erate States, were entirely lost to the school system.
The Constitution of 1866 created a perpetual school fund consisting of all former dedications and appropriatious made for that purpose and an alternate section of all lands granted to railroads, with an incomprehensible provision that if any portion of the public domain should at any time be sold to the United States, one half of the proceeds should accrue to the public schools. It also provided for the levy of a special school tax and forbade the loan of the school funds, and restricted their investment to United States bonds, or the bonds of the State of Texas and to such bonds as the State might indorse.
But it was left for the present Constitution of Texas, adopted in 1875, to crown with benevolence all known laws and legislation providing for the education of the young in any State or country. In addition to former appropriations, one-half of the public domain of the State, and all sums arising from the sale of any portion of it, constitute a perpetual school fund ; and a portion of the public revenue, not to exceed one-fourth, also a capitation tax of one dollar on every male citizen between the ages of twenty-one and sixty years, are annually set apart for the benefit of the public free schools. These funds are placed beyond the power of any other appropriation whatever. This Consti- tution provides for the establishment of a " University of Texas," which shall include an agricultural and mechanical department. In addition to former grants it sets apart one million acres of the public lands for the benefit of the university, and requires the Legislature to provide for and maintain an institution of the first class. The Governor, Controller of Public Accounts and the Secretary of State are constituted a board of public education, and are required to make a proper distribution of the school funds among the counties. Separate schools are provided for the two races, and no school with a mixed attendance of the white race and negroes or their descendants to the third gener- ation can participate in the benefits of the public school fund.
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The amended Constitution of 1883 went yet further in making appropriations to the school system, and gave it one-fourth of the revenue derived from the State occupation taxes, and added to this the levy of an annual ad valorem State tax of such an amount, not to exceed twenty cents on every one hundred dollars, valuation, as, with the available school fund arising from all other sources, will be sufficient to maintain the public free schools for a period of not less than six months in each year. The Legislature was author- ized to form school districts within all or any of the counties of the State, and authorize an additional ad valorem tax to be levied and collected in these districts for the further maintenance of the public schools in each system; provided that two-thirds of the qualified voters in each district shall vote such tax, which is not to exceed twenty cents per annum on every one hundred dollars, in valuation of the property subject to taxation in the district. But this limitation of the tax does not apply to cities and towns constituting separate school districts.
The Legislature by an act of January, 1884, provided for the election of a State superintendent of public instruc- tion, to be chosen at each general election of State and county officers, who shall also be ex-officio secretary of the state board of education. He is charged with the admin- istration of the school law, and with a general superintend- ency of all matters relating to the public schools of the State. He is required to make an annual apportionment of the available school funds among the counties, and to the cities and towns which constitute separate school organ- izations, according to the scholastic population of each. The county judges have, under the direction of the State superintendent, the immediate supervision of all matters pertaining to public education in their respective coun- ties.
This system, with its vast and perpetual endowment and comprehensive organization, affords a.basis of a universal popular education, around which cluster the brightest hope- and prospects of the State. As the benign donation, pre- emption and exemption laws preclude all excuse for indi-
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gence, so the liberal school system removes all reasonable grounds in which ignorance and illiteracy can take root.
The act required the Governor to appoint a superintend- ent immediately ; and the cultured young gentleman who was assigned to that duty, and who has since been elected by the people, has a grand and noble task before him, which his energy and efficiency will doubtless accomplish in a development of the public school system into a practical benevolence, philanthropy and public good, which will be his greatest personal credit, and the highest honor of his State.
The criminal laws of Texas are of a purely statutory character. They are embodied in a penal code prepared by two able lawyers - John W. Harris and James Willie - in pursuance of an act of the Legislature passed on the 11th of February, 1854. This code became the law of the State in February, 1857. Its design was declared to be the defi- nition in plain and unmistakable language of every offense against the laws of the State, and to assign to each its proper punishment ; so that the penal law of the State might be complete within itself and have no dependence upon any laws, written or unwritten, of any foreign system ; and it was declared that no person should be punished for any offense which was not expressly defined and the penalty affixed by the statute laws of the State. The common law, however, is retained as a rule of construction when not in conflict with any statutory provision. The code and every law enacted upon the subject of crime is to be construed according to the plain import of the language in which it is written without regard to technical distinctions or any difference of construction between penal laws and those upon other subjects. No person can be convicted of an offense who is under nine years of age, nor who is under thirteen unless sufficient discretion be proven. No person can be punished with death who has not attained the age of seventeen years, nor can a married woman who commits an offense by the command or persuasion of her husband ; but she may be imprisoned for life. The common-law rules of evidence are observed in respect to the proof of insanity in
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the trial of all offenses in which that plea is made. All persons who act together in the commission of crime are deemed principals, and all persons present at the commis- sion of an offense who advise, encourage, or agree to its perpetration are likewise held to be guilty of the act.
Neither the husband nor wife of an offender can be an accessory, nor his brothers and sisters, nor his domestic servants, nor his relations by consanguinity or affinity in either line. These, when accomplices, bearing authorita- tive relations to the principal, receive, the highest pen- alty affixed to the offenses, and there may be accomplices in all offenses except in manslaughter and negligent homi- cide.
The punishments which may be inflicted under the code are death, imprisonment in the penitentiary for life or a term of years, or in the county jail; forfeiture of civil or political rights, and pecuniary fines. There are but three offenses which can incur the penalty of death - these are treason, murder and rape. Those for which the punish- ment may be imprisonment in the penitentiary are murder in the second degree, arson, robbery, burglary, rape, theft, forgery, and conspiracy to commit either of these crimes ; misprision of treason, manslaughter, assault with intent to commit a felony, maiming or disfiguring the person of another, kidnaping and abduction, abortion, seduction, administering poisonous and injurious potions, dueling, willful burning, malicious mischief, misapplication of public money, dealing in fraudulent land certificates, bribery, perjury, counterfeiting, permitting escapes by officers ; giving false land certificates, authentication or entry by an officer, false swearing and subornation, conversion of money, script or other evidences of debt by officers, the rescue of convicted felons, bigamy, miscegenation, incest, sodomy, giving false certificates by public weighers, illegal marking and branding, altering or defacing marks and brands, em- bezzlement, swindling, and fraudulent disposition of mort- gaged property.
Offenses which may incur imprisonment in the county jail are: aggravated assault and battery, negligent homi-
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cide, disturbing public worship, offenses affecting suffrage, failure of duty on the part of officers, barratry, malicious prosecution, false personification, riots, rescue of prisoners convicted of misdemeanors, preventing labor, desecration of graves, using false weights and measures, false impris- onment, libelling, slandering, false accusations and threats of prosecution, spreading infectious diseases, threats to take life, sending threatening letters, and petty thefts.
Those which may receive only a pecuniary punishment are : illegal contracts affecting the State, extortion in the collection of taxes or other public money, dealing in public lands by officers, drunkenness in office or in public places, bribing the officers of elections, offenses committed by them, disturbing public worship, violating the Sunday laws, extortion by officers, official peculation, failure of offi- cial duty, barratry, compounding crime, malicious prose- cution, false personification, unlawful assemblies, riots, disturbing residence, affrays and breaches of the peace, unlawfully carrying arms, adultery and fornication, keep- ing disorderly houses, indecent publications and exposure of the person, desecration of graves, illegal disinterment, illegal banking, conducting a lottery or raffle, gaming, bet- ting at elections, unlawfully selling intoxicating liquors, vagrancy, illegal pawn-brokerage and violation of the insur- ance laws, carrying on offensive trades and nuisances, pollution and obstruction of water-courses, selling un- wholesome food, drink or medicine, unlawful practice of medicine, violating quarantine laws, obstructing roads, streets, bridges and navigable streams, refusal to serve and failure of duty as overseer of public roads and irrigation, keeping a ferry without license, injuring public grounds and buildings, trapping and netting out of season, using false weights and measures, simple assault or battery, false imprisonment, kidnaping and abduction, attempt to pro- duce abortion, negligent homicide, libelling, slandering, false accusations and threats of prosecution, willful burn- ing, malicious mischief, spreading infectious diseases, destroying timber, selling stock without a list of the brands or bill of sale, butchering animals without brand, failing to
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make report of animals slaughtered for market, selling stock by auctioneers without written statement as to their acquisition, unlawfully using or disposing of estrays, the giving of fraudulent certificates by public inspectors, threats to take life, sending threatening letters, and petty theft.
All offenders suffer double penalty upon a second con- viction, and may receive quadruple punishment upon a third and subsequent conviction; and when an offense of which a person is convicted is continuous in its nature, judgment is also rendered for its suppression. All convic- tions of felony work a forfeiture of political rights.
The act of 1879, declaring the penal code to comprise the entire criminal jurisprudence of the State, also adopted a code of criminal procedure, embracing its entire criminal judicature. The object of this code, as declared, was to render the rules for the prevention and punishment of offenses intelligible to the officers of the law, and to all persons whose rights might be affected by them ; to prevent the commission of crime, and all hope of escaping its penal consequences ; to insure a fair and speedy trial, and the production of all important evidence, and to provide for certain execution of sentence where the law is declared. It is also provided that if any necessity should arise for a rule of procedure not contained in this code, the rules of the common law shall be applied and govern. This code de- fines the general duties of officers charged with the enforce- ment of the criminal laws, fixes the criminal jurisdiction of the several courts, lays down rules and proceedings for the prevention and suppression of offenses, and in regard to the writ of habeas corpus. It provides the time and place for the commencement of criminal actions, with the incidents of arrest, commitment, bail, and search-warrants ; presents rules for the organization of grand juries, and defines their duties ; describes the nature and requirements of indict- ments and informations, and of all proceedings preliminary to trial. It provides ample and elaborate rules in regard to trial and its incidents, also in respect to proceedings after verdict, and all miscellaneous proceedings connected with criminal trials.
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This general view of Texas jurisprudence reaches the limits of the scope of this work, and the following chap- ters will be devoted to biographies of the eminent judges and lawyers whose professional careers have made im- portant impression upon the jurisprudence of the State ; and with these will be interwoven such details and promi- nent features as will promote an exposition of the pecu- liarities of Texas jurisprudence and preserve the memory of the professional eminence which it has produced.
CHAPTER V.
THE BENCH OF THE REPUBLIC AND STATE - EMINENT JUDGES, DECEASED - JAMES T. COLLINGSWORTH -THOMAS J. RUSK -JOHN HEMPHILL - AN- DERSON HUTCHINSON -R. E. B. BAYLOR - RICHARD MORRIS - WM. B. OCHILTREE - ABNER S. LIPSCOMB - R. T. WHEELER - GEORGE F. MOORE -A. J. HAMILTON - LEMUEL D. EVANS -PETER W. GRAY - M. H. BON- NER-S. P. DONLEY -THOMAS H. DUVAL - AMOS R. MORRILL -M. D. ECTOR-C. M. WINKLER - BENJAMIN C. FRANKLIN - RICHARDSON A. SCURRY - WILLIAM S. TODD.
Of all the varied characters of men there is no one whose traits are wrought to a higher standard of excellence, and whose composition is more devoid of the petty weaknesses as well as the grosser foibles of mankind, than that of a truly learned, just and upright judge. His functions are among the most sacred and elevated that pertain to the affairs of humanity, and he feels the weight of that respon- sibility which incurs from a higher seat the same judgment which he has meted to others.
His mind is at once the sun and moon of the law. It sheds its beams upon its obscure features, illumines without lenifying its stern aspect, and in turn reflects its light upon the face of society, penetrates the dark confines of human depravity, and presents a beacon for the guidance of recti- tude.
His heart is a tablet upon which are inscribed in mingled characters the rigid outlines of justice, the stern mandates of a jealous rule, and the smiling pictures of benevolence and philanthropy. He knows no passion but his devotion to duty ; he cherishes no motive but the attainment of jus- tice ; he fears no displeasure but the reprimand of con- science, and seeks no applause but the benediction of right.
His conscience vibrates at the tenderest touch of doubt, and utters its strains of hallowed dictation at the slightest appeal of virtue. His judgment stays to catch the notes
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of its approbation, and his actions leap forth at its bidding. It is there alone that he seeks for justification and reward, and there finds himself the sanctified recipient of the bless- ing vouchsafed to the faithful servant. He holds to the sentiment of Persius, " Nec te quasiveris extra," and which Dryden has happily translated : -
" The conscience is the test of every mind; Seek not thyself, without thyself, to find."
This precept forced itself as a necessity upon the con- duct of the early judges of the Texas courts. Without applicable precedent, or the controlling maxims of any fixed system, they were guided by reason, by analogy, and, above all, by their own conscientious views of right and wrong. That these were sometimes speculative and often conflicting, was but the natural effect of the different shapes and colors in which things present themselves to the varied mental visions of mankind. Their reasoning was not to fit circumstances to law, but to adjust the law to the facts, and conscience was the plumb-line of the measure- ment.
On the erection of Texas into a separate superior judicial district in 1834, by the Congress of Coahuila and Texas, Thomas Chambers was appointed superior judge, and was the incumbent of that office when the provisional system of the Consultation intervened in 1835. The first chief justice of the Republic was James T. Collinsworth, a lawyer of ability, who had been United States district attorney in Tennessee. He committed suicide by leaping from the deck. of a vessel in Galveston bay before he had held any regular term of the Supreme Court, and was succeeded by the subject of the following sketch.
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THOMAS J. RUSK.
Thomas Jefferson Rusk, a Texan general, jurist and statesman, was born in Pendleton district, South Carolina, on the 5th of December, 1803. His father was a native of Ireland, and pursued the occupation of a stone mason. . Being honest and industrious, he secured a residence upon land belonging to John C. Calhoun; and here, under the inspiring influence of the great Southerner, the subject of this sketch received his first ambitious impressions, and became imbued with that love of freedom and broad view of human rights and human destiny which grew and devel- oped into qualities that made him one of the heroes of a young nation struggling for constitutional liberty. Mr. Calhoun discovered the budding capacity and glowing ambition of his young tenant, and procured him a situation in the office of the district clerk, where he earned a living and at the same time prepared himself for the bar. On obtaining license to practice law, he removed to Clarksville, Georgia, and soon obtained prominence in his profession. But here, in the midst of the gold region of that State, his ardent nature and enterprising spirit caused him to be drawn into the tide of speculation, which at that time rolled its sparkling bubbles over that portion of Georgia, alluring men of all professions into its seductive but often ruinous vortex. Mr. Rusk invested his means in the stock of a company of land and mine speculators, the managers of which embezzled the corporation funds in 1835, and fled to Texas. He pursued them, and on arriving at Nacogdoches, was so well pleased with the appearance of the country that he determined to make that place his future home. But the turbulent times immediately preceding the Texas Revolution produced events that stirred the fires of
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patriotism which had been kindied in the bosom of his youth, and at the head of a body of Texans whom his enthusiasm had aroused, he hastened to check and avenge the massacre of Americans by Mexicans in the country between the Brazos and the Rio Grande. From this time he devoted himself entirely to the achievement of Texan independence. He was a colonel in the siege of San Antonio, and a member of the convention which declared the independence of the Texan Republic. In the organi- zation of the new government he was appointed secretary of war, and established his office at the headquarters of the Texan army ; and while it was retreating eastward after the fall of the Alamo and the defeat of Col. Fannin, he ordered the countermarch which culminated in the battle of San Jacinto. When Gen. Houston was wounded in the beginning of that action, Col. Rusk assumed command, and led the charge which put the enemy to route. The wound of Gen. Houston having disabled him from active service, Col. Rusk was made a brigadier-general, and placed in command of the Texan army. His conduct throughout the struggle was characterized by the utmost vigor and courage. He was, prompt to move in whatever direction the army was needed, and was always ready for battle.
After the retreat of the Mexicans he proceeded to Goliad, the scene of Fannin's defeat, and caused the mutilated and seared remains of the Texans, which were scattered over the field, to be gathered up, and when they were brought together for burial he delivered over them an oration, which, in eloquence and pathos was unsurpassed by that of Pericles over those who fell in the Samian war, in which he endeavored to impress the devoted patriotism of the dead as an example of glory upon the living. It is said that many a rough and hardy soldier, whose eyes had never since childhood been wet with the waters of sorrow or sympathy shed copious tears that day over the half con- sumed bones of his comrades, which, after the funeral oration of the General, were deposited with the honors of war in one common sepulchre.
In the fall of 1836, Gen. Rusk was appointed to a seat
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in the Cabinet of President Houston, but soon resigned in consequence of the condition of his private affairs, which at that time claimed his whole attention. In 1837 he was elected from Nacogdoches to a seat in the second Congress of the Republic, and during the ensuing year was engaged in the war with the Cherokees, Caddoes and other tribes of Indians which had been incited by the Mexicans to acts of . rapine and atrocity in Northern and Eastern Texas. In February, 1839, he was elected by Congress to the office of Chief Justice of the Republic, which he occupied one year, and resigned in order to again return to the super- vision of his domestic affairs. His decisions, only five in number, are reported in Dallam's Digest.
It can not be said of Judge Rusk that he was a learned judge or a profound lawyer. Flung in the prime of life into the van of a revolution which quickened and engaged every energy of his nature his lucubrationes annorum viginti were divided between the forum, the field and the halls of legislation, in which the new government was putting on the panoply of an independent nation. But his knowledge of law was equal to the circumstances which surrounded him. If his opinions are apparently arbitrary and senten- tious in their brevity, it must be borne in mind that it would have been absurd to quote precedents and authorities from systems of law which had not been adopted by the republic, and it would likewise have been folly to attempt to explain the various impressions which the multiplied details of circumstance made upon his mind in the formation of opinion, if indeed it were possible for any one to present at all times an intelligent analysis of the mental process which leads to conviction.
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