The Southwestern Historical Quarterly, Volume 60, July 1956 - April, 1957 Page: 2
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Southwestern Historical Quarterly
An understanding of this judicial heritage which Phillips
describes can best be approached through a knowledge of how
the system evolved, an examination of the method of selection
of judges, and a comprehensive view of the organizational frame-
work within which these judges function. And finally, although
Texas has a government of law, not men, a court is controlled by
the men who render its decisions; so a glance at some of the
most interesting and influential figures in the history of the
Texas judicial system will be advantageous.
As Sidney L. Samuels said at the celebration of the centennial
anniversary of the Supreme Court of Texas:
When the stories of battlefields are dust covered, when the shout
of the charlatan in the marketplace is silent, when the tongue of
legislative clamor is mute, the decisions of the great judges will survive
the ruins of states and empires, and their shibboleths of liberty will
resound and repeat themselves once again in the lives and deeds of
A number of scholarly articles concerning the courts before
1875 have been published; so the emphasis of this article will be
placed on the period from the adoption of the Constitution of
1876 to the present.
Before the colonial convention of 1836, called the Consulta-
tion, Texas had been governed by an alcalde-justice of the peace
system.4 This period of Spanish rule is the source of the traces
of civil law which are still evident in our dominantly common
law system of the present day. Under the Spanish regime courts
were not permitted to set aside or declare unconstitutional acts
of the national or state legislatures.
The 1836 Constitution of the Republic of Texas provided for
a Texas judicial system which was, in general, remarkably simi-
lar to our present one, although the adoption of the Louisiana
Code preserved the civil law until 1840. In this year the Congress
of the Republic declared the common law to be the rule of de-
cision but excepted its provisions curtailing the rights of mar-
ried women. By the Constitution of the Republic a pattern of
courts was established in accord with the Anglo-American heri-
SCongressional Record, 76th Cong., 3rd Sess., Appendix, 2247.
4Clarence Wharton, "Early Judicial History of Texas," Texas Law Review (Aus-
tin, 1934), XII, 319.
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Texas State Historical Association. The Southwestern Historical Quarterly, Volume 60, July 1956 - April, 1957, periodical, 1957; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth101163/m1/14/: accessed June 26, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting Texas State Historical Association.