The Texas State Times (Austin, Tex.), Vol. 3, No. 34, Ed. 1 Saturday, August 2, 1856 Page: 1 of 4
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TEXAS STATE:
CITY OF AUSTIN, TEXAS SATURDAY, AUGUST 2, 185&
Joly 8,1856.
to villi being
" (rf ~
of Bexar: It
ir one of policy only.
will bo
itions
tlnon this floor,
ramufeno rigbt
of m&o's
t wite hm no
with a fie$dispo-
bj will, than by con-
is a dangerous doctrine,
upon the laws of
society, it cannot ex-
r and confusion, the
tbe power to take Ae
to himself the
These things
system for their
recognized and
tothe naht of property;
ll necessary
to~soaaie and protect its pos
in all tbe depart-
ofKfe;
has spoken of fun-
I ask gentlemen to
to fundamental principles^ as
to see bow prop-
how U is left, and then
It is net right and ex-
-
They naturally die result Of a repeal of the law as it
at condition Win stands. Ido not believe that such results
will follow the passage of this bill, ae the
fee
tee led to suppose that that condition
continue after his decease; they a*e in-
duced to believe that they will surfed to gentleman from Nacogdoches (Mr. Och-
the property which he as the bead of the iltree) has predicted. On theother hand,
family possesses, and their views, expec- I believe that this system of restraining
tations and course of living are regulated men in nutting their wills and distribute
accordingly. The children of the rich rag their property in kind, will be pro-
are not generally as well fitted to begin ductive of more litigation than any other
life without means, to the use and enjoy- . law upon our statute books.
of which they have been accustom- | If the gentleman from Nacogdoches
ed, and to struggle with poverty, as the will tell me that he does not feel capable
children of the poor, and to disinherit of disposing of his property by will in a
them arbitrarily and throw them upon proper manner, I will acknowledge the
their own resources, without those means force of his argument, and give my ad-
hesion to the resolution for which he con-
by some elemen-
all property was origi-
by occupancy, that it be-
of nature, the man who first
Ject, as for mstaaee a piece
. and reduced it to possession, ac-
a right to it, wtdeh lasted during
, and when that ceased, the
ceased also. Such is
of
1 the right of inherit-
ri said to have originated in
person having reduced
^property, and occupied it,
and possession ceased
j abandoned it. U pon
. tbe property again became va-
ster fee seised and ap-
ifiy other person. Those
ift£tt**st>*be time of bis
, near relative, or
this spot when the
, were on hand to
i and by
natural
then, is derived this rigbt to
pagawte wai? From the
aety. If this right is created
frpsnda upon it for its
liffciety certainly must
regulate and control
■ what wo contend
_ Mttfr that depends
social system, and hasits
he social compact, it is
rates and regulations ,as
may see proper to make
and as may fee deemed
individual, bat for the
that society possesses
exercise a
that be
affect o
which they have a just reason to expcet,
is an act of injustice to them, and an in-
jury to the community at large.
If a person has children, it is a duty
he owes them and to society to make a
reasonable provision for them after his
death. It is a harsh exercise of power
to leave than penniless, and liable to be-
come a burden to the community. I see
no reason why the exercise of tins power,
arbitrarily and without just
be permitted. ' • , ,
The natural law will indicate, and tbe
natural feelings and affections will sug-
gest, that when a person dies his properly
should be divided equally among his
children. An equal division cannot vio-
late any such feeling, or offend our sense
of right and justice. It would seem that
any other disposition must result from a
perverted feeling or misplaced affection.
The law in force in this State ia in ac-
cordance with these principles. When a
person is willing that his property should
be disposed of fin* the equal benefit of
his children, the law does not prevent
hiol; When, however, misguided affec-
tion or perverted feeling induces him to
tends. All the argument is predicated
upon the assumption, that although we
are capable of making such a disposition,
yet our neighbor is not. £very man be*
lieves himself capable of making a proper
will.
Now the gentleman from Nacogdoches
has alluded to some facts, and very poet-
ically, too. But sir, I will relate one
violate this natural duty, the law steps in,
and declares that this disposition shall be
made in accordance with what is recog-
nised by the great mass of mankind as
niost consistent with the dictates of natu-
ral feeliilg and justice. If the parent
should be justified in disinheriting his
child on account of gross misconduct of
the child, he is permitted to do so, for
causes specified in the law. If there is a
reason or necessity that one Child should
have a greater share than the others, or
that any other equitable provision should
be made, the law leaves a sufficient mar-
"gLn for that purpose, and gives the p&rent
the absolute disposal of one-fourtn; If
he has no children, he can do with the
whole as he may see fife
The equal division of property among
children and heirs, is one of the essential
principles of republicanism, for by this
system it is almost impossible that large
fortunes can accumulate and be continued
in the same family more than one or two
The power of unlimited
by will contravenes this policy
by permitting parents to concentrate
their property upon a favorite ehild to
the exclusion of the rest, and the same
system kept up by a proud and ambitious
family, would as effectually lock Up prop-
erty as a law of primogeniture.
It is contended by tbe advocates of this
bill that every person who acquires prop-
erty, feas an unlimited power and rigbt to
of the
a who aoqmres property*
I right to dispose of it ui
trite elect after his death;
who shall bold,
it, after his own power
hasceaaed; that he has the right
while living either
provided it is
>e or transfer
but if be re-
diath, he holds
of exercising
and to suppose ^this con-
sr death, is to suppose a
to enforce it; that he can
has neither a natural or legal
of it after his death; that fee is as
ipotent WRBt tUs titspaMtan vessa-
acquire it,Or to make any contractre-
GentLmen seem to forget that when
men make wills, they are not always in
the possession of the same faculties, as
while acquiring property or acting in re-
gard to it in the orainanr cUtirse of bus-
sin ess. Wills are very frequently made
during extreme illness, often shortly be-
fore death, when the body is enfeebled by
disease and the mind is correspondingly
impaired. Under these circumstances
the views and feelings frequently undergo
a change. Sick persons become influ-
enced by motives that would not operate
upon them in health, and they cease to
possess their usual good sense, sound in-
tellect and discriminating judgment:—
Persons in the last extremity of disease
are peculiarly subject to the influence of
those about them, and under this influ-
ence wills have been made in favor of
persons present or of their friends or
favorites, to the exclusion of absent chil-
dren or relatives, under circumstances
where the want of the necessary mental
Capacity could not be proved, and thus
children and heirs have been wrongfully
defrauded of that which should have
been theirs.
By detaining the present law, no. such
injustice can take place. The adoption
this bill opens a door to all these
KOll^
should fact in which there is more troth than
poetry, in regard the operation of this
law. A man died leaving a will and
property, amounting by the inventory to
§25,000. The will was contested, and
the matter in controversy was, whether
more thanr one-fourth of the estate had
been devised. Suit was brought in the
district court, and the will was set aside
to the extent of die excess, which was
trivial. Before that litigation closed, not
a dollar of the estate was left. Every
dollar had been consumed in one way ana
another, in consequence of the protract-
ed litigation and . expense attending it.
I claim to have made some little observa-
tion in relation to these matters, although
I do not pretend to that professional ex-
perience and ability which I know to be
possessed by my distinguished friend from
Nacogdoches.
The argument made by the gentleman
from Harris (Mr. Smith) is true. I defy
any man who desires to make his will, to
sit down and make a calculation of the
value of his estate, which will not in the
estimation of his neighbors, depart from
the true and exact valuation. I will sup-
fiose that he has an estate consisting of
and, negroes and cattle. He undertakes
to make a distribution of it by will. In
tbe valuation of his land, he places one
estimate on it, and bis neighbor another;
and so with his negroes and his cattle.
If the difference should amount to more
than one-fourth, the will may be contest-
ed and annulled. He might believe, hav-
ing a full knowledge of the disposition
and character of a certain child, that one
species of property would be better fof
that child than another; yet he is re-
strained in making this division himself,
lest it may be impeached. Pass this law,
and you enable the parent to make a par-
tition of his property", which he cannot
now do without incurring the hazzard of
an unequal distribution, and thus giving
rise to a protracted and expensive litiga-
tion. I admit the r ght of society to say
what shall be done with one's property if
he does not choose to determine for him-
self. But believing that every person is
best capable of exercising a correct
qdgment in the transaction of their own
:ueu, if tin,j
Ulla
mm Aai
wills people would make. I believe
every man would make that sort of a
will that would suit him. And I believe
that whenever you satisfy public * opinion
upon this subject you are doing right.-!—
And I have no right to complaig of the
disposition which my neighbor makes of
his property. No man has a right to dic-
tate to me what course I shall pursue,
no more with regard to a disposition of
property by will, than by contract in the
ordinary affairs of life.
The argument of the opponents of this
bill, must proceed, upon one of two hy-
potheses : either that the parent will be
actuated by improper motives, or that he
is incapable of making a proper disposi-
tion of his property. I am unwilling to
assume cither that the parent is incapa-
ble, or that he will act unnaturally.
I will state a case. A parent has ten
children; one of them a boy who has ar-
rived at the age of manhood.. The par-
ents have expended five or ten thousand
dollars in the education of that child.—
Here is a younger child to whorii no ajjt-
vances have been made, and for whom
that parent feels all the same natural ties
and tenderness of affection as for $fee
other. Hetfe one has received advances
to the amount of ten thousand dollars by
way Of education, and certainly better
advances,than cash or property. Here I
say tho parent would be doing the just
tbing to discriminate between the two,
and why ? Because the advancemental-
ready made to this other child should be
taken into the account. It would req£re
an equal amount to educate the youngest,
to place him upon an equal footing u&tb
the other; yet if thiB proper discrimina-
tion is attempted, you are told thalt it
cannot be done, that the law forbids you.
I tell that gentleman that he is mistaken
in supposing that by changing the law,
litigation will be increased. How will
litigation arise if the right is conferred
of making a will, without restraint or lim-
itation ?
But t can tell gentlemen how it will
arise under the law as it is now. When-
ever the parent attempts to distribute his
estate, to make a partition of his prop-
erty in kind, and to do that which every
parent desires, to keep it out of the pro-
bate court, litigation will arise. Seme-
body will be found to complain of its in-
equality, and a contest on that ground
ensues. It goes—one portion to the
probate judge, another to the clerk, half
to the lawyers, and what is left for the
wife and child. Cannot these great evils
be prevented? I think so. The bill
before us provides the remedy.
I believe the law as it now stands,will
result in much litigation, and put money
in my pocket as a lawyer. It will en-
hance the fees of lawyers, I am satisfied
of that; but I do believe it will diminish
the good we ought to have in view. It
takes from the parent that right which he
ought to exercise, to distribute his prop-
tery as he thinks proper. And I can't
for my life see any reason in the world
for withholding that right except it is one
of the two reasons I have before -men-
tioned, either that the parent is incapa-
ble, or that he will act unnaturally. I
will not assume either to be so. The de-
right of disposing of the property
Bcsawd person exists somewhere; j
It deeeenda with tbe inheritance to his j
and relatives, if there be any; j
no heirs, it escheats to the |
r in othei words, it becomes the
mpm # cwnmnity at large.
Property being a creature of society,
for its existence,
One gentleman has said that the com-
mofl law rule, as advocated in this bill, is
in force almost everywhere, and he ob-
jects to our present law because it is de-
rived from the civil law. Provisions
similar to our own exist in almost all the
countries of continental Europe, where
ths civil law prevails, and especially in
France, Prussia and Belgium. The com-
mon law regulation contended for, forms
the exception, and not the general rule of
civHifed nations.
It is of itself a great argument in favor
of our present law, that most of the com- '
mon law lawyers in this House, who have
come into Texas with all the prejudices
resulting from early education and asso-
ciations, who have seen the evils arising
right of making • from allowing every man to dispose of
in regard to it his property by will, at his pleasure,
without regard to those natdral ties that
should bind him to his children, and who
have also witnessed the operation of our
system, have become its strongest and
warmest advocates.
It seems to me, sir, that this law has
worked well. It has been in operation
here since Texas has been a separate gov-
ernment. There is no just cause of com-
and it would now, I
i others, and has,
acquiescence
^power to make
i, snbject how.
it has thought
it; This right
bring derived
exercised in such a
most conduce to the
tad be most consistent
IfNr.v
; in regard to the power
testamen-
; been briefly dis-
little in regard to
i of the present law$
" n.
i a natural
the part of the parent to
s children if they
can be en-
and yet when
of dMs bill,
to,«ease,aad
kia 'life-time
children,
right, T say society ought not to restrain
them. Believing that they are capable
of discharging this great trust, if they
choose to exercise it, die law ought never
to restrain them—never. I find many
who believe that their neighbors, friends
and constituents, are not able to do it.
But I have never yet met one who be-
lieved himself incapable of disposing of
his property.
Now sir, again, those extreme cases re-
ferred to by the gentlemen from Nacog-
doches, may as well occur under the law
as it now is, as if ifris repealed. If a
parent chooses to act unnaturally and un-
justly towards his children, I ask that
gentleman as a professional man, if he
can't so arrange it now ? He can do it,
by gift, which under a recent decision of
the supreme court, is held to be effective,
no matter when executed, though the
donor be in eztreitli , if possession ac-
companies the gift. The whole argument
of the opponents of- the bill is founded
upon an unjust assumption—that the par-
ent will do that wbichit ia unnatural for
hhn to do—disinherit his children.
Sir, I-do not believe .such would be
the operation of the law. Under the law
at present in force, the parent may dis-
inherit his child for good cause shown,
which Cause however most be set forthin
the will.
Had I Cause under the law to disin-
herit my son by will, I would never do it
—I Would never perpetuate his disgrace
by setting forth such causes—I would
never make those causes a matter of sol-
emn record. No man will disinherit his
child, if he baa in order to do that to
perpetuate his shame.
I believe a man has as much right to
dispose of his property by will, as he has
by deed. Why not undertake to regu-
late a man's conduct t What is a will
but a contract with those to whom bc-
iuests are made, to take effeet at the
eath of tho testator ? What is it but
an instrument which confers rights upon
those mentioned in it as devisees. Shall
we undertake to say that men's contracts,
because they may be improvident, shall
be avoided:
I aay, let the law stand as it is, so far
as it seeka to distribute the estates of per-
sons who die intestatet. But I cannot
for my life conceive of any argument why
we should take from the parent the right,
to dispose of his property, the accumula-
tion of his own earnings, by an instru-
ment the most solemn that he ean make.
For it Beems to me that no instrument
could be more solemn—no occasion more
: solemn, inhere is ho tine in a man's life
nininn nf fhfl awnromo. .oniirf to I
have alluded, and to which other gtrmA—
men have alluded, is the strongest possi-
ble argument in favbr Of a repeal of the
law which prevents the parent from dis-
posing of the whole of his estate by will.
He may do this by gift we are told, if the
deliverv of the property accompanies the
gift- Now I believe that a man would
act under as solemn convictions of duty
in making a wiil, as he would in making
a deed of gift. But be this as it may, I
say that if a man wants to defraud his
children, he can do it just as well under
the present law as expounded, as if no
such statute existed. The only question
seems to be as to the manner or mode of
doing it. If by gift it is all right. If
by will it is void. No one in the lan-
guage of the law is heir to the living. If
when on my death-bed, I can make a do-
nation of my property to a stranger, by
deed, which is valid and effectual, bow
utterljr futile is that law wliitfh prevents
me from attaining the same end by will.
Where the reason of the law ceases, the
law should cease.
the State of Texas would vote saofe a
provision. The attachment law ii as
stringent here, he believed, now as it is
in any State in the Union. And it is a
matter of doubt ia the minds of ««winfl'it
jurists, whether these stringent measures
arc hot productive rather of evil than of
good. They pkoe it in the power of
every evil disposed man in the communi-
ty, to harram his neighbor in an extra-
ordinary degree.
He wished the House to know the full
extent of this law, before being called
upon to vote upon it.
Mr. DAVIS: We are told that if this
bill becomes a law, it will arm overy cred-
itor with the power to harrass and injure
his debtor. It is confidently asserted
that creditors are generally a bad set of
folks, and should rely more upon the
honor of the debtor than the efficacy of
demands. I am of the opinion that the
existing law enables a great many bad
men to defraud their creditors. It not
unfrequently happens that persons owing
debts dve by account, leave the county
where the debt was contracted for some
remote county in the State. The credi-
tor, though he feels morally certain that,
without the intervention of law, he will
lose hie debt, yet he does not take the
oath necessary to authorize the issuance
of the writ of attachment.
The bill under consideration, if it be-
comes a law, will authorize writs of at-
tachment to issue, upon the party apply-
ing for the writ making oath that the
debtor is about to remove his property
beyond the limits of the county, and that
the creditor will thereby probably lose
his debt.
I do not believe that such a law would
be used to oppress the people. An hon-
est creditor would not harrass an honest
debtor. Whoever shall abuse the remedy
secured by this law is answerable in dam-
ages to the injured party.
I will not take up the time of the House
to meet the objections urged against the
bill. They are ail extreme cases. All
human laws are liable to abuses. The
most that poor mortals can do, is to
adopt laws that will do the greatest good
to the greatest number.
Believing, then, that the bill under
the substitute will be re- consideration is just and equitable, and
that a large majority of the people de-
mand it, 1 shall cheerfully give it my sup-
port. Let it be tried for a time and if it
shall be converted into an engine of op-
pression, let it be repealed.
Mr. SMITH of Harris: I rise for in-
formation. I would tfish to ask before I
vote what the practical operation of the
law will be. And there i3 no gentleman
to whom I would refer sooner than to the
learned gentleman from Nacogdoches,
IMr. Ochiltree,) who, as he has intro-
duced the amendment, undoubtedly will
understand its practical bearing.
I wish to know what the practical op-
eration of the law will be without his
amendment. Whether it will not enable
any person who may be a creditor of
mine, to arrest my cotton or corn, after I
shall have started it upon a sail-boat to
Galveston to market ? Or if, peradven-
torej Z sfeould happen, in passing through
Houston, to owe a grocery bill, whether
my creditor could not Stop me, or Beize
me, the
lluL, U1
berit by stating the causes in their wills.
Those who have no legal excuse for dis-
inherison, who from undue influences are
wont ti> disregard the dictates of nature,
should not be permitted to do so. The
law as it now stands prevents the unnat-
ural parent from disinheriting, without a
legal excuse, his child.
It is objected that parents dislike to
state in their wills, and thereby make it
a matter of record, the reason for disin-
heriting their children. It is contended
that under the provisions of the bill be-
fore the House, a parent can disinherit
without mentioning the cause. If the
object of the parent is to do as little in-
justice to the child as possible, the cause
of displeasure should be mentioned, else
an uncharitable world might 'attribute it
to causes that never existed. Under the
existing law, a child shall not be con-
demned without a hearing.
For the reasons I have given, I will
not support the bill.
After some further discussion, Mr.
Sayles offered a substitute for the bill.
The substitute having been read by the
clerk, together with the original bill,
Mr. SULLIVAN said: The substi-
tute offered by the gentleman from Wash-
ington, (Mr. Sayles) is in effect a law re-
lating to marital rights. There is a bill
which has passed the Senate and is now
pending in this House, which, I believe,
is entitled an act regulating marital rights,
and which, if I recollect rightly, covers
the objects named in the substitute. The
main feature of the bill now pending is to
discontinue forced heirship in Texas. I
am inclined to think this substitute is
thrown in here for the purpose of prevent-
ing a vote upon the main question. It
does not meet the main question. It is
not a substitute for the law relative to
wills in any particular. It leaves the law
of forced heirship just where it is under
the present laWi If the gentleman from
Washington will go further with his sub-
stitute, and will make a wholesome pro-
vision on that subject, with the right to
dispose of property by will, without re-
taining forced heirship, and put the two
objects together, I see no objection; but
as it now stands I strongly object to it
as a substitute for the law relating to
wills. I hope
jected;
July 10, 18o6.
Abridged Report.
Mr. STEDMAN called up a Senate
bill to amend an act regulating attach-
ments, with a report from the Judiciary
committee recommending amendments,
with the amendment offered by Mr. Och-
iltree, pending when the House adjourn-
ed last session. The bill and report with
amendments were re-d. Question on the
adoption of Mr. Ochiltree's amend-
ment: Strike out the words " or that he
is about to remove his property beyond
the county."
Mr. OCHILTREE said he thought
that provision entirely too hard and
stringent. It was not contained in the
law" of toy other State that he knew of.
He hpped this Hoitee would not pass a
law that would render a man liable,
merely Crossing a county line; Or remov-
ifvomity w-auuib
July 9th, 1856.
The bill supplemental to an act of Feb-
ruary 28th, 1840, concerning wills Was
again taken up.
Mr. DAVIS said: I will declare my
objection to the bill under discussion brief-
ly. I belong to that class of legislators
who do not believe that a periodical
Change of all laws is necessary, nor in-
deed do I occupy the other extreme.—
The evils of existing laws of long
standing, should be apparent before they
are amended or repealed. The fact that
laws have existed for many years, is the
best evidence the Legislature can have of
the virtue of a law, except by instructions
through the ballot-box and by petition!
Adopting the foregoing proposition as
my guide, lam constrained to vdte against
the bill under consideration. The law
regulating the disposition of property by
will was passed in .1840. Thus for six-
teen years the citizens of Texas has pros-
pered under the existing law. I have
heard no complaint of the law, and am,
therefore, satisfied that the great mass of
the people are satisfied with it.
I will now notice the objections against
the existing law and in favor of the sub-
stitute. The Chief reason urged in favor
of the latter is that it leaves every one
his property seized by his creditors, and
thus be compelled either to stop or to
give security.
So far £s he was concerned individually,
he had no doubt its adoption would bring
an abundant harvest to gentlemen of the
legal profession. .Wherever the country
was getting old and worn out, people
would move, and merchants and grocery-
keepers would be down upon them.
Mr. BUSHING said:
Mr; Speaker: The bill under conside-
ration is one Which, ill iiiy opinion, is re-
quired to facilitate justice. The old at-
tachment law is a mere sham—a mere
trap to entangle the creditor, while the
debtor who is deposed to evade the pay-
ment of his just debts may do so without
detection. I ask what objection can
there be to allowing an attachment to run
against him or his property who is in the
act o£ removing beyond the limits of the
county in which he resides, or in which
his property is situated, with the intent
to avoid the payment of his just debts ?
We are told that it will work a hardship
and oppress the debtor. I have not been
able to see in what manner it will oppress
...... I
- - — annoy me. the very m
stant whenXriuss on luuui^f—
propose to do so 2 "
If that is the practical Operation of
the law, I shall vote for the amendment.
Mr. OCHltiTREE: I answer the gen-
tleman from Harris, that the practical
operation of the bill is precisely that, in
my opinion. I state, beyond the shadow
of a doubt, under this law as reported,
any man who starts to haul his cotton
beyond the limits of the county, is liable,
upon an affidavit being made before a
justice of the peace, to have it seised.—
The only thing is, there is a clause pro-
viding that the creditor has to swear—
•'whereby he will lcse his debt." That
is a matter of to averse. The arrest
goes on: the property is seized; and the
debtor may have his remedy in damages
on the bond for having improperly sued ,
out the attachment. But he will be com-1 ^deration,
pellcd to sue upon the bond, and show to
the satisfaction of the jtiry that the cred-
itor had not probable cause to believe he
would lose his debt;
My experience goes to show, that men
who make affidavits of that sort, do not
that lie and his securities shall be aetkm-
afcjefer every cent of damages tbe party
may sustain in consequence of wrongfully
suing oat the writ. If then a party dis-
regards bib oath, and improperly sues Out
a rritof attachment, in that very suit—
for it is not necessary under tbe decision
of the Supreme Court to bring another
suit for the purpose—in that very suit
tbe defendant pleads those damages, and
gets a judgment if the damages exceed
the amount of his indebtedness. In. the
case of seizure of a man's buggy or hor-
ses, as suppose by the gentleman from
Nacogdoches, he could in a few minutes
give a bond and replevy the property at-
tached, and there would be no damage
done at all.
I think the necessities of the country
demand the passage of this law, and I
am therefore opposed to the proposed
amendment.
Mr. ECTOR: I propose to take up
but a few minutes of time to explain the
position which I occupy upon this ques-
tion. Tt is a question in which the peo-
ple of the section of country I live in feel
perhaps as deep an interest as in almost
any other now before this Legislature.—
Ever since this subject has been before
the House, t must confess I have had
doubts in my own mind as to whether or
not it is for the interest of the country
that this bill should pass and bccome a
law. However, after mature reflection,
I have determined to support it; and had
the vote been taken before when the bill
was up, I should have voted for it. I
shall vote against the motion to recon-
sider.
I look upon this law as an experiment;
I do not know that there is any State in
the Union which has such a statute.—
And in fact there is no State in the Union
where the people are eo Bituated as we
are. As has been very properly said
upon this floor, if a man owes debts in
Eastern Texas, we had much rather he
would move to almost any State in the
Union than to portions of Western Texas.
We look upon it as almost equivalent to
losing the debt. We don't think of fol-
lowing him.
I believe, as this law is guarded, it
would be well for us at least to make the
experiment, and see if something cannot
be done to remedy the peculiar evils we
suffer under. It is not ohlv the mer-
chant, but the fanner; every man who
has a debt owing to bim, suffers under
the present system. As it is now, the
debtor Lcan pack up his movables and be
off in a trice to a section of the country,
where the county perhaps is not organ-
ized, and there is no chance to enforce
the collection of a debt, perhaps six or
seven hundred miles from where the
creditor lives.
I am satisfied, too, a decided majority
of my constituents require that some-
thing should be done to cure the defects
in our attachment law. Under these
circuinstances, I Shall voto against the
reconsideration.
Mr. ARDREY: The reply of the
gentleman from Nacogdoches to the
tion propounded by the gentleman
Harris does not, it seems te me, give the
proper legal construction of the statute.
In order to authorize the issuance of a
writ of attachment upon the ground in
^g^lhai-^aaogal must amount to a
IJ the debt "
speedy construction-«f several Jtfcia traiik
lines of Railroad:
5. Reaolvedv That we are nppo—d to
embarking the State ia tbe practical busi-
ness of Railroad comtraetHHf, while tfee
same can be prosecuted witK so m££&
more efficiency and expedition by mmm,
of individual enterprise and economy,
acting through the custmaary forma, of
corporate associations, aad wit
ence to other more serious and radical
considerations, in the present depressed
and embarrassed condition of the iaiita-
trial interests of the people, arising from
want of means of trafisportatien—dw'
regard as a weighty objection to tke St&fti
system.) the loss of time, and delays an-
avoidably incident to its efficient instal-
lation. Deep-rooted convictions existed
in the public mind at tbe formation of die
Constitution, and continues to exists this
day,
such
making, and it would only be alter ft
er of att hope, of the adoption of
other means that the people ooula be ii
duced to adopt the State sy
any form in which ithas
Having the power in their own handtj
they do not see that such alternative need
be presented, and therefore, we, the peo-
ple of Falls county, as part of the people
of the State, claim of the Legislature the
carlv adoption of tbe loan policy, that
all doubts may be removed and efficient
progress insured in die speedy construc-
tion of the three great lines of road men-
tioned. .
Resolved, That we are willing to tax
ourselves to raise funds for thia purpose
—and we further daim of the Legifll&rare
the enactment of a law by which the |
pie of .the different counties, in
capacity of county corporations may be
authorised to shbscribe stocks to the roads
in tthich they are directly interested, and
to levy upon themselves and proptifty;
within their limits; the tastes necessary to
pay such subscription, securing to each
tax-payer, an individual property in the
amount of stock his taxes may suffice to
pay. In thi6 way Internal Improvenrat
taxes would be paid by those rattffgtted
in, and benefitted by such improveme
and by labor upon such works, and mle
sques-
from
change of domicil; the debtor must be
removing from the county, without the
intention of returning back to it. Merely
leaving home on temporary business does
not come within the proper construction
of the term removal. And not only must
he be bound to remove, but he must not
leave sufficient property in the county,
whereby the party may be enabled to save
his debt. The terms, I think, are
them should they desire to pay, for 1 ap- conscientiousness that they ought
prehend there is not a single man who i w 1 Jfi :
will fail to make satisfactory arrange
ments with his Creditor* by seeing him and
suf-
ficiently guarded in tbe bill. The mere
act of removing himself, or the mere act
of removing a few bales of cotton off a
man's plantation, for the purpose of
sending them to market, does ttBt consti-
tute u sufficient basis upon whieh a fcrit
of attachment can issue. The latter por-
tion of the affidavit—"whereby he will
lose his debt"—must bfe taken into con-
In order to authorize tbe is-
suance of ah attachment, tbe creditor
must swear that the party is going to
change his domicil, " thereby nc will
probably lose his debt;' or that he is go-
ing to remove his property out of the
__ cotlnty, "whereby he will probably lose
generally Btudy them with that degree ol ^is debt. Then, sir* it seems to me that
- - - - - thiB bill does not operate very peculiar
We are told as an argument in favor
of this bill, that men are removing every
... ,. ,. t ,7. , .day from Eastern Texas to the West—to
explaining to him his objects before leav- th^ Rio Grando even> and that hundieda
mg, or attempting to leave, which I am
sure he ought to do. The assertion that
not a bale of cotton can pass out of the
county without being liable to attachment j
is also urged as a reason against the bill.
Now, t ask gentlemen who argue thus to
examine the bill, for 1 am certain they
do not understand it. There is no pro-
vision in the bill that will authorize the is-
surance of an attachment, unless the
party is changing his domicil, or attempt-
ing to place his property beyond the
reach of his creditors with the
of miles intervene between the debtor
and the creditor. So in Alabama, a m&n
may move from Mobile to Huntsville.—
Yet the law is not called for there.
I should look upon such a law as a ter
tardship or extraordinary oppression up-
on the debtae. It seems to me that his
rights are amply guarded by the provis-
ions of the bill.
Before the writ of attachment can issue;
the creditor must not only make oatfe to
these facts j but he is required to give
bond and security. And, as the gentle-
man from Panola has justly remarked, if
to those engaged therein, of
and provision, the people ths
would find facilities to pay
amount of tax, aad subscribe i
larger amotints of stock with J
upon themselves, than if their taxes1
imposed by the legislature to be el
upon works at a distance ■from
which they would not be at liberty to j
stock individually Or OtbeHtiee;
Resolved, That we protest mi
estly against that feature of the State
systciti in all the forms in which we hard
seen it published, by which the people of
middle and Eastern [fexaS, Sre t& be
postponed in the equal benefits they are
entitled to receive from the legislation of
the State, whilst Stibjmed lb the burthen*
it imposes. We are prepared to submit
to necessary and unavoidable inequalities
as to the time of fruition by tbwtf (t!$6g
the lines of toad, and which arise from w
near Or remote location from oar neigh-'
borhoods of our country af the road IfS-
signed for our accommodation. Bat wa
remonstrate against inequalities that <
specially
efof
in the papers, it
that the roads from
San Antonio, and from GalvtaftiS acaft
to Austin, shall he prosecuted to Comple-
tion first—that the fhhds of the State
shall be expended iipon these works ex-
clusively first, until they are ,&tfHpleted<
and then, aba Hot till (nek, shall a com-
rible infliction upon the community. You ^is no probable cause for the issuance
won't find another such law south of Ma- j 0 ftt'a-chment, 01> it is ian-
son and Dixon's line. Why then make ! protidently or wrongfully issued by the
an exception of Texas ? ! ma.k,nS a fa1lse ®ath' you have am-
Mr. POAG: This measure, I think, ] Ple security upon his bond; and not only
is one which the country demands. So j
| far as my information goes as to the sec-
free to dispose of his or her property as | statute book is a mockery. Bad men
they desire; This objection is formidable j will, before your face and with the money
in the estimation of those who do not ap- J their pockets, bundle up and move off,
, . intent -o j tjon in j live, it ia desired by the
aetraua them. , people. And this is not a measure which
I consider tbe passage of the bill of j may be designated as class legislation, as
absolute necessity to aid collection. I i has been intimated here. Men cannot be
know that in other States, this principle
has met with but little encouragement.
But I think when we take into conside-
ration the vast extent of our territory,
we are bound to see that justice requires
and demands the passage of the bill!—
Now, sir, in my purt of the Strttc the at-
tachment law as it now stands on the
will he
plaint against it, and it would now,
conceive, be highly impolitic to change it. j when he is more forcibly impressed with
Mr. CLEVELAND of Liberty said: ! convictions of duty, than when he is
I do not design making an elaborate "
speech on this subject, but I foel inclined
to offer a few reasons in support of the
bill before the House.
The arguments advanced in opposition
to the proposed change in the law, eeem
to be based upon the belief, that instead
of parents acting from that natural affec-
tion which is imputed to them, they act
from caprice, whim, passion or impulse.
Now I think it proper to look at fathers I rights between husband and wife. Nei-
and mothers as they are, recognising in tber the wife or the husband can dispose
of anything but what is their own. Nei-
called upon to make a will.
I believe that tbe passage of this act
will prevent putting estates through the
probate court. I have had some little
experience, some practiee in that court;
I know there is no estate which goes
through that court, that does not come
out worse than it went ia.
Gentlemen (and why I can't imagine,)
seem to think it will affect community
preciate the extent and nature of the ob-
ligation of the parent towards the child.
It is conceded that nature has implanted,
with but few exceptions, in the breast of
parents a desire to protect their offspring.
not out of the State, but to the Rio
Gande perhaps, a distance of eight hun-
that, but if he has sworn falsely, you
ciih prosecute him for perjury.
It appears to me that the rights of the
debtor are amply and fully secured ill the
bill. And it does relieve creditbrS from
some of tho hardships they labor under
classified as creditors and debtors, especi- at «tt tj . ' - ,
ally in Texas. And this legislation is as Mr^ RANDOLPH: I do not wish to
much in favor of one matt as of another; ma^e a spoecfr upon this question. I
it is in favor of the people generally. j merriy wish to give in my experience.
. Now, if this law is not amended, I can i * remember thsU at itil early date under
say, as far as the practical operation of j t"e Republic we had such a law as that
the law is concerned j we have no statute ' uow proposed; and it was exceedingly ob-
authorizing attachments at all. Persons • poxi°us an" oppressive. During its ex-
retnoving from one section of this State ilstencc upon the statute book, creditors
to another, c&n plate themselves as com- j on evcrTtrivial occasion resorted to writs
pletely beyond the control of their credi- i attachment. I had the honor to be a
tors as though they were to remove to Justlce of the peace m 184., and I had
the State of Missouri, and more so. I; 011 my^docketj as I well recollect, more
Mi estate, generally
ia accordance with
ng ii
them the existence of that natural affec
tion which we know theypossesB.
The object of this law is not to enable
the parent to disinherit his child, but its
object is to prevent litigation—to pre-
vent, that very thing which the gentleman
from Nacogdoches (Mr. Ochiltree) seems
as a rrrfeaMonal man to believe will be
tber can dispose of the Community prop-
erty, except so far as tleir right in the
community property is concerned. This
bill does not alter or modify the rights
incident to, or growing out of the mari-
tal relation—by no meajs.
It is immaterial to me what kind of
dred or*a thousand miles, and when they j wju specify an instance? A maii living i casc? of this kind than ordinary suits.—
1 ave done so, your chances for collection | in Harrison county and indebted there 1 every trifling pretext a party would
. are about as good as they would be had ! some thousand dollars, having property j sw®aur °.ut an attachment. ^
Among the obligations imposed by nature ! he moved to the State of New I ork. j which ought to be subjected to that debt, I T w as found so exceedingly op-
are those of protection from all harm, ! And, 1 ask, ought there not to be a rem- j removes to El Paso county. Would he' Presslv® that it was soon repealed.^ And
nurture and education. Such is the law j edy for this evil ? Will gentlemen per- ! not be as completely beyond the reach of J^at law did not go so far as the bill now
sist longer in refusing the remeuy . i creditors there, as he would in the j "ey)re House proposes to go±
This measure may work a hardship on J State of Louisiana or North Carolina?! 1 believe it is the dispositlb
a few, but it seems to me that it will ab \ think so; and indeed mctffe 60.
of nature which we are as much bound to I
observe as human laws. When nature's
laws cease to influence the conduct of
parentB towards their children in most
civilized countries, human laws step in to
enforce its observance.
ft being conceded that parents rest
under the beforementioned obligations, it
remains to enquire whether the existing
law forbids a compliance upon the part of
the parents; Under the law as it now
is; parentB, except for certain reasons,
are bound to distribute equal portions of
their property to their children. Those
who have no cause to disinherit a child,
cannot complain of the law as it now is.
Those who have legal causes, can disin-
i
" the greatest good to the greatest num-
ber." I therefore hope the bill will
pa3S;
On motion of Mr. Cleveland of Lib-
erty, the amendment of Mr. Ochiltree
was laid on the table by a vote of 47
yeas to 24 nays.
Mr; SULLIVAN moved a reconside-
ration of the vote just taken. He did so
from a conviction that the House was not
fully aware of the importance of that
clause in the bill. If this matter was
entirely explained and duly appreciated,
he did not think the Representatives of
The object of this law is not to oppress
the debtor. It is to afford facilities to
creditors to enforce their just demands
iigainst those who owe them; And it can-
not be realized as a harsh iaw; because
the rights of the debtor are protected
most peculiarly. In tbe first place, the
party taking out the writ must take a
solemn oath; he must swear to the truth
of what the law 6ays Shall be necessary
to obtain an attachment. That is not all.
He must give a bond with good securities,
I believe it is the disposition of the
HoUsq to pilss this bill, and I will Say no
more Upon the subject.
From the Statesman.
Railroad jfecttng III FtUh County.
1. Resolved tbat the people of Robert-
son; Burleson, Brazos and Milam counties
in common with their fellow-citizens ia
this quarter of the State, feel the deep&t
interest in the early enactment of a hir
by the legislature pledging loans of frfta
six to ten thousand dollars per mile to
legally authorized corporate companies,
mencement be made on the reads to con-
nect the Braaos and Trinity vattefa and
Eastern Texas with the Gulf coast-=tfeha
postponing for an indifinite period of time,
the ocC&sltfil whetl the people inhabiting
these sections of the State ate to fee te-'
lieved from the great embarrassments
under which they labor, arising from
want of railroad facilities If the State
system is to be adopted we claim a parti-
cipation in all its benefits, equal in aH
respects to what it dispensed to others,
and when the roads to San Antonio and
Austin are commenced, those for the ao^
commodation of the Brazos and Trinity
valleys and Eastern Texas shall also be
commenced and that they shall go on to
their completion mm* pasta.
5: Resolved^ Thit*pr<i8ent loans to
well organised companies engaged in the
construction of jirfcioasiy located roads,
would, in the estimation of thia meetings
afford the safest and most productive*
and wisest investment of Att education
funds at the command Of tke State;
It was further
Resolved, That a copy of these reso-
lutions be transmitted to our Senator and
Representative to be regarded as instruc-
tions from part of their constituency;
and that copies hereof be also sent to the
Houston Telegraph, and all the Aastiti
papers for publication*.
: — ..... -
Mavldad.
sir wit. t. g. warm.
There's ii bfcftutlfal spot, aye, the fSirest om. jwdj;
Where winter's tbld Storms aerif Spread
chat dearth ;
Tia a Tale with green live-oaks aad wild I
clad, ,
Throngh .>hicb flow the watenafflfa
'Tis a'. IdT-ely a landscape as ever ins At&i
That rale with Hsferdnre continually green,
Where the blue-rippling waters' harmoniously win d
Under wreaths of white lilies so gracefaBy twined;
Tia the home erf say Su&ctS—that ytli Ifcinitof
maid—; ,7"''°
With whom In Jane's tiHlight I oftan have stray'd,
Or sat by the rivulets vtae-ctfrfaiaed side,
To watch its bright tfavts o'er the thick JfttbleS
glide.
Ob Sasaii, Sweet Susan f Where that tcmhtat purU;
Sow ofl hare I playta with thy k g yellow CurU,
Or bound thenl frith ltftt rlffiH SrouflS thy whftC
brow,
And rowed that ns maiden was lovelier thaa thou.
But Bit* f We wsfe parted. Sow loaely I stray
To dream of the maid by that Stream te away;
And I know that the Qaon of the Prairie ia as*;
When she site by the waters Of Went Naridad.
Atww, Jane, 1836.'
%timi t_
" What is the reason," said (me Irish-
man to another, that yon and yoar wife
are always qtfitrrtHng?" " Because we
are both of one mind; «fce wafcis to be'
master, and so do I," replied Pat.
~ ■ inii .
in a much larger amount than the amount | such as may afford safe guarantees for the _ T
of property ho seeks to seite. conditioned' judicious employment of said loans, in the " Why, then J cmbo to ft*.
" Did yon preterit yOnr aoeeant te tiri
defendstfit 1" iatppred a lawyer of
clerk. W I did sir." What d)d hti 6a* ? "
" He told ifte to go to tbe devil, air."
" Well, and what did yon do after that?"'
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Ford, John S. & Jones, William E. The Texas State Times (Austin, Tex.), Vol. 3, No. 34, Ed. 1 Saturday, August 2, 1856, newspaper, August 2, 1856; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth235813/m1/1/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting The Dolph Briscoe Center for American History.