District of Brazos
The Republic of Texas’ early court
Written by Ken Wise
From the glorious victory at San Jacinto until her first congress convened in October 1836, Texas was a land without (much of) a government. The Convention of 1836 had elected a provisional government, as revolutionary movements often do. But after the fall of the Alamo and subsequent Goliad Massacre, the fate of Texas was very much in doubt. Any purported government governed with imperfect authority at best.
The success at San Jacinto meant that the new Republic of Texas needed to turn its attention to international relations. It became critical to the viability of the republic to establish a functioning government. Events that occurred shortly before the Battle of San Jacinto made immediate government action necessary. In fact, the new republic had to scramble to establish some sort of legitimate justice system before the first congress of a newly independent Texas could even convene. It all began with a Texian naval victory in April 1836.
April 3, 1836, dawned with the Texian Navy schooner Invincible patrolling the mouth of the Rio Grande.1 Commanded by Capt. Jeremiah Brown, the Invincible was blockading the Port of Matamoros when it captured the brig Pocket and soon discovered powder, ammunition, and military stores for the Mexican army.2 Her cargo also included dispatches to Santa Anna with intelligence on Texian naval strength3 and a map of the entire Texas coast, highlighting Texian vulnerabilities.4
While capturing a ship that is aiding the enemy is normal during the course of a war, the capture of the Pocket had a significant twist—the Pocket sailed under a United States flag. Interested parties in the United States were none too pleased with her capture and the provisional government immediately recognized the diplomatic problem it posed. After being encouraged by prominent Texians to ensure the capture of the Pocket was handled in accordance with accepted practices, Texas President David G. Burnet called for the creation of an admiralty court, appointing Benjamin C. Franklin as judge of the district of Brazos5 on May 8, 1836. Franklin held that the Pocket was properly captured as a prize of war.
Franklin’s appointment followed multiple correspondences between government officials contemplating the creation of an admiralty court specifically. After all, an admiralty trial for the Pocket was the immediate need. Burnet’s appointment order, however, says that Franklin holds the office with “all power[,] jurisdiction and emoluments by law pertaining to said office.”6 Burnet’s appointment did not limit Franklin’s jurisdiction only to admiralty cases.
Citizens of the fledgling republic flocked to the court to conduct the normal legal business a growing population generates. Among the more important matters in the new country involved property deeds.
A typical example is a deed from Texas veteran Leon Dyer to Grace Lyons. Dyer served in the Texas army from May to November 1836.7 His six months of service entitled him to a bounty of 640 acres. He transferred the property to Lyons “under the law ‘non numerate pecunia no entrego y prueba.’”8 This term of art translates roughly to a situation whereby the sale takes place without payment or the actual transfer of any documents. The deed memorialized an act that took place before the court was created. Such was the haste and informality with which so many land sales took place.
One deed remains that gives some indication that prominent Texas officials recognized the court’s authority in fact, if not in law. Republic of Texas provisional Vice President Lorenzo de Zavala sold a half-league of land on the San Jacinto River to Secretary of War Mirabeau B. Lamar, the location of which was to be agreed upon by their sons.9 That particular deed also contained a warranty clause that served as a sort of title insurance policy for $5,000, a significant sum in 1836.10 One can only speculate that this instrument may have settled some sort of dispute between de Zavala and Lamar.
Judge Franklin’s “memorandum book,” a sort of ledger, sheds some light on how the court conducted business.11 To understand the entries, one must first understand how the alcalde system functioned in pre-revolution Texas. Under this system, legal disputes were subject to the decision of the alcalde and the alcalde was entitled to collect a fee for his services. It appears as though Judge Franklin conducted his court under this system. His memorandum book reflects, for example, that on October 29, 1836, he issued a “certificate of citizenship” to Peter Griffin and charged him $2.12
Larger sums were collected for other services. Franklin charged J.M. Lyons $10 for “powers of attorney and transfer of certificates.”13 He charged another $10 to J.C. Haskins as administrator for William Brown for letters of administration.14 Both those charges were also on October 29, 1836, a busy and lucrative day for Judge Franklin.
Neither conflict of interest rules nor anything resembling a code of judicial conduct existed in the new republic. All agree that Judge Franklin served honorably and without blemish, but certain entries would raise modern eyebrows. For example, on that same October 29, 1836, Franklin charged “Herrell & Kiley” $10 for writing a deed that Stephen F. Austin executed to that party, presumably for a land grant or sale.15 That deed, of course, would be filed with Judge Franklin for approval, as so many others were.
One interesting event occurred on November 8, 1836. On that day he records a wedding fee for performing the wedding of “Col. Eberly.”16 No doubt this is Jacob Eberly, who married Angelina Peyton around this time. They would go on to open the “Eberly House” in Austin. During his second term as president, Sam Houston resided at Eberly House, rather than what passed for an executive mansion.17 From Eberly House, Angelina heard the commotion that led her to fire a cannon as a team of men intended to take the Texas governmental records to Houston—the famous “Archives War.”18
The court also handled criminal matters. Only one record has been located by which two individuals, James Neil and John Chaffin, were indicted for assault in the district of Brazos.19 They were ordered brought to a “store” or “stone” house owned by Walter C. White, since no jail yet existed.20 It’s almost certain Judge Franklin was called upon to preside over other criminal matters, though no records have been located.
One important quasi-criminal matter involved the plot to free Santa Anna from his captivity near Columbia after the Battle of San Jacinto. Once the plot was discovered, Bartolomé Pagés, one of the alleged co-conspirators, filed a sworn statement before Judge Franklin as to the events surrounding the plot.21 This event evidenced the fact that Judge Franklin presided over essentially the only functioning “official” department in the new Republic of Texas.
The first Congress of the Republic of Texas met in Columbia and, among other actions, established the court system under the constitution approved by the voters in September 1836.22 It created four judicial districts.23 Judge Franklin presided over the Second Judicial District, which included Brazoria and Harris counties. The first minute book of Brazoria County reflects several cases that were commenced in the district of Brazos and simply continued in the Second Judicial District Court.24 The transition was seamless, apparently, and I have found no challenges to the validity of any of Judge Franklin’s rulings before his appointment as a regular judge of the republic.
An organized society needs a system of justice. The peaceful
adjudication of civil disputes, as well as the protection of the public
from crime, necessitated the establishment of courts. While the newly
independent Republic of Texas could have probably functioned under its
existing Mexican system until the congress convened in late 1836,
actions during the war made it imperative to establish a court with
admiralty jurisdiction. That urgency was more a matter of international
relations than justice. Nevertheless, the court of the District of
Brazos served as an important step for the fledgling republic toward a
system of justice more familiar to the majority of its citizens—and a
sign to the world of the viability of the new Republic of Texas.
JUSTICE KEN WISE serves on the 14th Court of Appeals in Houston. He is also the creator and host of Wise About Texas, a Texas history podcast.