The Quarterly of the Texas State Historical Association, Volume 2, July 1898 - April, 1899 Page: 49
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Development of the Texas Judicial System. 49
Thus, on these two important branches -of the adjective law, evi-
dence and trial by jury, the Civil law and prior statutory provisions
were superseded, and the rules of the Common law, to which the
citizens had been accustomed, were introduced.
Other Common law methods of procedure were not adopted. The
few years .of their experience with the administration of justice in all
civil cases in one court, even under the very great disadvantages then
existing, had demonstrated to these pioneers, who were wise enough
to receive the truth from any quarter, that the maintenance of
separate courts of law and equity was not to be desired, and they
declined, therefore, to incorporate this feature of the Common law
into the system they were framing. In regard to pleading, the same
influences operated. Neither the system obtaining in courts -of
the Common law, nor in courts of 'Equity, was entirely adapted to
the new conditions. The Common law system, with its single is-
sue, and its forms of action, could not be adjusted to the procedure
necessary in a court of blended jurisdiction; and the Equity sys-
tem was not in all things suited to jury trials; besides, there were
elements ,of formalism in each, which might well be looked upon
as hindrances, rather than aids, in arriving at justice. On the
other hand, the pleadings 'of the Civil law were very simple, and
admirably adapted to the development 'of truth.19
The laws of Colahuila and Texas regarding pleadings, as before
quoted, provided for a petition by the plaintiff, a contestation by
the defendant, a replica 'by the plaintiff, and a duplica by the de-
fendant. In these pleadings, the parties were respectively allowed
and required to set forth, in a plain ,and intelligible manner, the
facts upon which they respectively relied to sustain their positions
before the court; in short, to state to the court the real truth of the
matter in controversy, so far as they might be able.
'The responsibility of choosing between 'these two systems, the
Common law and the Spanish Civil law, devolved primarily on
Congress. On December 20, 1836, Congress passed an act organ-
izing the district courts. Its only section referring to pleading is
as follows: "It shall be the duty of the plaintiff, or his attorney,
in taking out a writ or process, to file his petition, with a full and
1 The Laws of Las Siete Partidas (translated by Lislet & Carle-
ton), Vol. I., law 1, p. 36; law 32, p. 52; law 31, p. 51; law 40, p. 57;
laws 7, 8, 9, 10 and 11, pp. 70-74.
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Texas State Historical Association. The Quarterly of the Texas State Historical Association, Volume 2, July 1898 - April, 1899, periodical, 1898/1899; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth101011/m1/53/: accessed March 30, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting Texas State Historical Association.