The Tri-Weekly Times. (Austin, Tex.), Vol. 1, No. 3, Ed. 1 Wednesday, July 23, 1856 Page: 2 of 4
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every member of. the Legislature. And
it must be borne in mind, that whatever
is done must be done in a spirit of com-
promise, because our territory is a vast
one. 1 think the policy should be adopted
which I have illustrated in weaving this
web, there would be no difficulty in build-
ing roads throughout the State, and
verily believe it would be the entering
wedge for the calling of a State conven-
tion, to amend our constitution, and when
this action is had, my word for it, Texas
4'will blossom as the rose." Her intel-
ligence, her wisdom, her wide extended
domain, and everything contributes di-
rectly to bring about snch a state of
things.
But here, Mr. President, I will take
occasion to anower the argument of my
friend from Houston, (Mr. Palmer.) He
jieemed to question the propriety and the
safety of the school fund in the hands of
the cotffifíSn—Aye, lie says it wouhl l>e
V«V -VVVIMW.VW.
worse than idle, to commit this vast fund
to the management of the county officers.
He Galls upon Senators here to give in
their experience as to the prodigal man-
ner in which county officers manage their
own financial affairs. I for one sir, can
testify that for the last four or five years
the county taxes have been released to
the counties for the purpose of building
their Jails and Court-houses. This has
been the case in my county, and I think
the people have received it thankfully
from the State, and most economically
Have they used it in building a good sub-
stantial court-house and jaü. And more
than that a heavy debt was hanging over
them which they have liquidated; 1 have
no hesitancy in saying a board of officers
selected by the intelligent voters of the
county of Rusk, would be a safe reposi-
tory for the funds placed in their pos-
session. These are the facts, Mr. Presi-
dent, in regard to my own county, and
I have no right to attribute to other
counties in the State a less degree of
honesty and integrity, to think otherwise
would be indirectly saying the people in
my own county are more capable of prop-
erly husbanding their funds than the
other counties in the State. Sufficient it
is for me to ask the careful attention of
the Legislature to this subject, before
they pass judgement upon the resolution
now under consideration. I trust,sir, the
motion to reconsider will prevail. At
least, it ean do no harm, and members
will then have time to reflect upon this
subject. I do not altogether approve of
the resolution, but I desire to keep all
the plans before me, so that I may give
my support to that plan which I ihink
will most contribute to the development
of the natural resources of the State, and
which will do most to make Texas what
she oupht to be, from her revolutionary
struggle, and her subsequent brilliant his-
tory, she deserves to be; and with the
blessings of an AU-wise Providence, if
we discharge our diity as an enlightened
people, we must, nay, we will, be the
brightest, as we are the largest jewel in
the glorious Union of these now Ameri-
can States.
Mr. GUINN: I desire to make some
. remarks in reply to the reflections pre-
sented by the honorable senator from
Rusk (Mr. Flanagan.) According to
my knowledge of the facts in the case,
the honorable senator has not, as he en-
deavors to make us believe, adhered to
his first love; but having some knowl-
edge of the senator's political antece-
dents, and believing in the final perse-
verence of the saints, I trust he will yet
return to his first love. It will be recol-
lected the honorable senator was an ad-
vocate, and I believe voted for a bill
known as the Loan Bill, at the time of
its passage in this body last winter. It
is also well known the author and intro-
ducer of the resolution has ever been a
consistent opponent of the Loaning Pol-
icy. Now it is somewhat remarkable that
two members of this Senate who no later
than last winter advocated measures-of
state policy directly antagonistic to each
other, can now b¿ FonntTvotíng together,
and advocating the same policy in rela-
tion to the distribution of the Public
School Fund in the State. I should cer-
tainly have called my distinguished friend
to order during the course of his pro-
tracted remarks, had I not been re-
strained in respect to him; for a full half
hour had elapsed in the delivery of his
speech, before I was able to discover the
real issue in question. I am not aware
that the issue now before us is the calling
of a State Convention to amend our Con-
stitution ; nor do I believe the old ex-
ploded dogmas of the whig and demo-
cratic parties are now legitimate subjects
of discussion. That gentlemen has con-
sumed nearlv an hour and a half in the
discussion of the propriety of calling
State Convention, when it is known by
every member of this Senate that we
have determiñed upon a different policy
in relation to the subject of internal im-
provements, and a policy too, which the
honorable Senator assisted to esiablish
both by his vote and his eloquence.
Now I tell that senator he need not ex-
pect to accomplish anything of real utili-
ty to the State if he advocates the pas-
sage of the Loan Bill, and to-morrow be
found voting for an entirely different pol-
icy. It is very true, sir, the loaning pol-
icy is no favorite of mine, but having de-
termined upon that policy, I am willing
to give it a fair trial, and not to abandon
it until we are satisfied it will not accom-
plish4he object had in view. In one re-
spect, however, I am with my worth
friend from Rusk. The country deman
that we should establish some system for
the co&stfuction of railroads ; butvI dis-
agree with him in relation to the propo-
sition now pending before the Senate, to
distribute the Public School Fund to the
several counties of the State. If we
adopt this resolution the Public School
Fund will be distributed to the 105 coun-
ties, and perhaps 60 of these counties
will not see proper to invest their respec-
tive funds to the benefit of railroad com-
panies. There would undoubtedly be
great difference of opinions, and many
conflicting interests to reconcile. Our
public fund would be divided, and the
probabilities are that little benefit would
be derived from it. But above all things
I most desire that we should definitely
and positively determine upon some in-
ternal improvement policy, and adhere
to it with a persevering consistency. The
loaning policy at this time seems to be
most acceptable to the people, and I
think will do to experiment upon, if it
does not realize the fond anticipations of
its ardent friends and supporters.
Now, Mr. President, the question be-
fore us is, shall the resolution be adopt-
ed ? Shall we distribute this fund to the
several counties of the State, according
to free white population? Now, Mr.
President, it is well known that since the
passage of the loan bill before this body
last winter, public opinion has been pret-
ty freely expressed in faver of that meas-
ure, and a considerable portion of the
representatives in the other house have
returned with instructions to vote for
that bill. In view of all these facts I
think it wo M*^e entirely inexpedient to
attempt to establish a different policy.
The honorable gentleman from Rusk ob
jects to the use of the word " education,"
and strongly disapproves that policy of
setting it apart sacredly to educational
purposes. Now I will remark that it ne-
ver was intended to use any but the in-
terest of this fund for the advancement
of the educational interest. If the loan
bill promises to be a sufficient safeguard
to this fund, and, at the same time, will
materially aid the construction of rail-
roads which the entire State is earnestly
demanding—is not that sufficient ? Then,
Sir, I do think we should adhere to that
measure. In my own county there was
an unanimous expression of opinion in
favor of this bill, and the parting words
of my friends in Cherokee at the time of
my setting out for this place was, to re-
main here till the last dollar in the State
treasury should be appropriated to inter-
nal improvement purposes. Now, Mr.
President, if the State gives or loans
w 3,000 for every mile of railroad actual-
ly built in the State, and in addition to
this, the State still continues to extend a
bonus of sixteen sections of land to the
mile; I say, if capitalists would not loan
to such companies with all these assur-
ances of prompt payment, then I am
constrained to believe they would not
loan upon the conditions which could be
offered them if this resolution should be
adopted.
Much has been said in the course of
discussion of measures of this kind in re-
gard to the availability of her public do-
main. I am not disposed to attach any
great importance to it, for I believe the ,
expenses of bringing it into the market,
the surveyors' fees and other expenses,
will very nearly absorb the funds which j
may be derived from its sale when brought I
into market. I am ready at all times to !
do anything to promote the education of;
the youth of our State; yet I cannot un-
der existing circumstances give my sup-
port to this resolution, for the reason
that I believe that the present investment
a safe one, and that it can be made more
availabe in the State treasury than it
would were it distributed to the counties
in the State, in accordance with the re-
snlniinn nnw iindnr r>nnci.lorntin«
The motion to reconsider the vote was
then put, which prevailed.
Mr. ALLEN. It appears to me the
substitute embraces three absurdities;—
First, it proposes to loan this fund to
the countiés of the State; second, it dic-
tates to them how they shall loan this
fund; and, thirdly, it provides no cer-
tain time when either the principal or in-
terest shall be returned to the State treas-
ury, and therefore I think it is not enti-
tled to further consideration.
Mr. TAYLOR, of Fannin:—We speak
of every thing as an absurdity now a
days, that is opposed to the Loan Bill.
My object is to make this money safe in
the possession of the counties, and I want
them when they loan this fund to know
that it is sufficiently secured by mortga-
ges on real estate and on private prop-
erty. If the loaning policy is to prevail
as I have every reason to believe it will,
I cannot see that Senators can have any
valid or serious objection to this substi
tute. Now sir, does not every member
of this Senate know that the school fund
would be much more safely invested, if
secured on private property than it would
be, if secured by moitgage on the public
property of a railroad corporation ? And
does not every Senator know too, that
the Loan Bill does not provide proper se-
curity for the School Fund,
no assurance that any portion of it will
be returned to our State Treasury, and
many friends of the Loan Bill have can-
taken for the benefit of individual specu-
lators.
Mr. PALMER moved to refer the res-
olution and substitute to a select commit-
tee of five, with instuctions to report bj
Wednesday the ltíth inst., and that it be
made the special order for that day.—
The motion being put, it prevailed, and
the resolution and substitute was referred
accordingly.
On motion the Senate adjourned till
8 o'clock to-morrow morning.
Debates of the House of Representatives,
WM. F. WEEKS, Reporter.
July 8th, 1856.
The bill relating to wills being under
discussion—
Mr. PARSONS said: I had not cal-
culated upon making a speech at this time
upon the bill before the House; but as it
seems to be the intention of the House to
act upon this matter now, and as I made
the minority report, it may be expected
that I should say something in behalf oi
that report, and in favor of the bill.
The opponents of this bill have made
tolerably lengthy speeches, but none of
them to the point. They talk about the
common law, about taking from the wife
„ . her marital rights, her community rights;
We hav° ! they talk about the rights* of children,
&c.
Now this bill proposes to take no indi-
vidual's rights from him,
„ It proposes tc
didly admitted that they do not expect j interfere with none of them at all; neithei
it will be returned. I cannot see then.
that there is any power more competent
to loan this fund than the people to whom
it belongs. And another objection I have
to this bill, is that the people may be
with the wife's community rights, nor
with her separate property does the bill
interfere.
Now, most of the speech of the gentle-
man from Nacogdoches (Mr. Ochiltree)
taxed te build up a road some thirty or J was against this bill, upon the ground
forty miles from the coast, when ^ their j that it approximates to the common law,
money will be about exhausted, without ¡ an¿ makes an invasion upon the rights of
receiving any benefit from it whatever. j the wife. What clause in that bill pro-
I believe sir, the time is not far distant, ¡ poses to make any invasion upon the
when the people having become more en-! rights of the wife, or the legal or natural
lightened upon the subject of internal rights of anybody else ? The rights of
improvements, will speak out, through the wife under the bill are as clear and
their representatives in favor of the Slate distinct as they are under the law as it
plan. A most thorough investigation of now exists. The bill does nothing with
the subject is going on among the people. j her rights. It touches them not. The
They are thoroughly aroused to the im- husband can no more deprive her of her
portance, aye, the most pressing neces- j rights under this bill than under the law
sity for some settled policy; and I am i as Jt now exists. Sir, at common law
satisfied a most radical change is going the wife had rights, and in the States
on in public opinion in favor of the fetate ! governed by the common • law the wife
plan. But if the Loan bill men are de- has rights. She has the right of dower,
termined to fasten their policy .upon «-rghe hasr lo separate' éstate,
at this session, then I am willing to make ; which she may hold in various ways,
them responsible to the people for all the ; JJer real estate she holds at common law,
evil consequences to which it may lead ^ independent of the powers of the hus-
our young and glorious State. I trust band as she does under the statutes of
the substitute will be adopted. this State.
Mr. WREN:—I had expected to have This bill only proposes to give to indi-
participated in the debate being had on viduals holding property, and capable of
this resolution, at an early hour tins making a will, the right, by will, to dis-
morning, had I not been prevented from 1 pose of such property as is absolutely
doing so on account of indisposition; for | their awn, and confers upon them, be
although neither the resolution nor the they either husband or wife, no right to
substitute embraces all the principles 11 interfere with the property of others. It
should like to see incorporated in a meas- j does not curtail the rights of the wife,
ure of this kind, yet I believe something ! nor enlarge those of the husband. The
o
money to the several counties of the
State, and to grant to them not only the
privilege of loaning it to railroad compa-
nies, but of loaning it to whomsoever they
he certainly has judgment enough to dis-
pose of it. Because to make a valid will
under this bill, or at common law, the
testator must be of sound mind and dis-
posing ability. This bill does not confer
the right to make wills either on madmen
or fools, or on any person not capable of
making a valid will at common law, or
under the statute as it now stands. If
the testator has the capacity necessary to*
acquire property and dispose of it during
his life; because he may, by the decision
of the Supreme Court, as stated by the
gentleman, dispose of it by donation one
mement before his death ; but he cannot
reduce that to writing, and convey it, if
he puts the conveyance in the shape of a
title, according to the arguments of gen-
tlemen, and the statute they support, be-
cause all of a sudden he becomes so im-*
becile that he cannot make a just dispo-
sition of the property he has acquired
during all his life;—he does not become
imbecile for want of mind, but merely
because the statute makes him so.
The gentleman says the bill will in-
crease litigation ; questions of imbecility
will come up—questions of undue influ-
ence ; and this bill will bring additional
questions into the courts to be deter-
mined. What additional question of im- J
becility or of undue influence does this
bill propose to bring into the courts of
the country ? I say it brings no addi-
tional question before the courts; and I
want the gentleman to point out one sin-
gle additional question that will be
brought before the courts of the country^
but may not airead} be brought there
under the present law.
The gentleman who last addressed the
House says that the common law States,
where the law of this bill prevails, and
especially in his native State, North
Carolina, you will find ten will suits
brought in the courts where there is one
here. I ask the gentleman what is the
reason of this ? It is because there are
more cases there—more people live there
—there arc more law suits there of ev-
ery kind, and ten times the amount of
property there to be conveyed by will;
and the Reports of that State contain
the decisions of cases running back
through centuries, whilst our Reports only
contain the cases of a few—say ten or fif-
teen years at most. He says there are
ten cases of issues deviwvit vel non
made up in the courts of that State to
one in the courts of this. If this be the
¿ase, what is the cause of it? Certainly
not any difference in the laws of the two
States, because upon this point the laws
of the two States as they now stand, and
as they have stood since this has been a
Republic and State, are exactly the same,
and are the same here, and there, that
they are in all countries where the people
have the right to make wills. In these
cases, and under this issue, the question
is, is the document relied on by the devi-
see and legatee the last will of the testa-
tor? Was the same duly signed; scal-
ed and published by him as his last will
and testament, or had he capacity suffi-
cient to make a will ? or anything that
of this nature is required, and I hope j relative rights of husband and wife it -r—
will be determined upon by this Legisla- leaves just where it finds them, without shows the will itself to. be bad, or no will
ture. I am in favor of loaning this the slightest interference with them in at all ? all of which questions are as like-
any way. We are asked by the gentle- ly to come up under our laws as they
man from Nacogdoches whether the wife now stand, and without this bill, as under
could make a will at common law or not?
At commnn law the wife, technically
7 O t •/ "—~ ^
may see proper, where it will command j speaking, cannot make a will. But she
the highest interest, andjat the same time, can make an appointment, a disposition
of her propertv during life, which a court
O r 7
be a safe investment. The School Fund
was appropriated and set apart for edu-
cational purposes, many years ago, by
special act of the Legislature of the State,
and I do not think it within the jurisdic-
tion of this Legislature to appropriate it
to other and different objects, and espe-
cially, in a manner ^lich it is believed,
by a respectable portion of this body, it
will not be a safe investment. Nay,
many of the avowed advocates of the
loaning policy candidly ailmit they do
not belive a dollar of the School Fund, if
loaned to railroad corporations in accord-
ance with the provisions of the Loan Bill,
will ever be returned to the State Treas-
ury. I believe sir, if we distribute the
School Fund to the counties of the State,
nine-tenths of the fund will be loaned out
to railroad companies. But the counties
should have the power to discriminate as
to the safety of the investment, and I am
in favor of delegating to them the right
and privilege of retaining the fund until
an opportunity for safe investment is
offered. I am not in favor of loaning
out this fund to the benefit of corpora-
tions. We all know and fear the dan-
gerous influence railroad corporations
exert upon a legislative body. Petition
after petition will be presented, and re-
lief after relief will be granted them,
until everv dollar in the Treasurv will be
r i v o 7 *
of equity will execute, and enforce after
her death. But this question is not put
in issue by the bill—it is dehors the rec-
ord. By this bill she can do it^as much
as she can under the law as it now
stands.
This bill proposes to curtail no rights
held by the wife under the law as it now
stands. It has no such object in view.
But it is based upon the principle that any
person, male or female, who is by law
capable of making a will, and who by
labor, or by any means whatever, has ac-
quired property, is the only person who
has the right to control and dispose of
said property; and that they should have
the riglit to control and dispose of such
property at will and pleasure ; and that
any power is tyrannical that attempts to
fetter that right. And it regards it as
tyrannical in any legislative body to take
that right from them.
I say that it is a sufficient argument of
itself. I stand upon that alone, to guar-
antee the passage of this bill. The pres-
ent law is an infringement upon natural
rights. A man should have the right to
dispose of his property as he pleases ;
and all this talk about caprice and whim,
as a matter of argument; falls to the
ground. Because, if a man has capacity
and industry enough to acquire propertv.
7 7 w ■—
the laws of anv State or country on the
globe.
In common law States, .few issues in
courts of law are made in will cases, ex-
cept the issue devisavit vel now; or wheth-
er the testator has made a legal will or
not; or whether the instrument is his
will. But as the law exists here, other
and additional, and different questions
come up. Tnis bill knocks off questions
instead of adding them on. Not one ad-
ditional question does it add on. But it
knocks off some of the most perplexing
and vexatious questions that have ever
come before the courts of the country.
As the gentleman from Liberty says,
under the present law, a testator has to
will his property just to a dollar. He
must know the amount of his property to
a dollar. He cannot will it by metes
and bounds, or by heads and hoofs, but
he must will it by value. And if he
transcends the one-fourth part of his
property the hundredth part of a farth-
ing in willing to others than his forced
heirs, the will is bad from the overplus
over and above the one-fourth, if not for
the whole; and the heir, thinking he is
swindled out oí a few cents by the price
set by the testator, brings his suit, and
has a jury to re-value the estate. Pass
this bill, and this question is knocked out
of the ring, and out of the courts. The
gentleman from Liberty says he knows
of a case in his county, where a fine es-
tate has been consumed in litigating this
Doint. I think if he will search the rer-
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The Tri-Weekly Times. (Austin, Tex.), Vol. 1, No. 3, Ed. 1 Wednesday, July 23, 1856, newspaper, July 23, 1856; (https://texashistory.unt.edu/ark:/67531/metapth181796/m1/2/?q=+date%3A1845-1860: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting The Dolph Briscoe Center for American History.