I received, the day after my arrival from Galveston, your Lordships communication bearing date of the 16th of last February, in
which you say to me that the citizen Martin de Leon, Empresario
of the town of Guadalupe, has presented himself at the Capital
complaining that the Alcalde of the Colorado District, regardless
of the consideration due him as Empresario, sole Justice of his
District, maliciously and violently gave orders to one Briche to
attach a cart and oxen and a load of corn, which he had sent to
that settlement in charge of his son Sylvestre; and that for no other
cause than a mere complaint made by Thomas Grey against his
son. You instruct me further to cause the attached property to
be returned to its owner at the town of Victoria, without delay,
at the expense and risk of the Alcalde, if he has, indeed, commissioned Briche to execute the attachment, or of any person who
may appear to have been guilty of the offense. You, finally, order
me to cause the Alcaldes of the Colonial Districts in my charge to
abstain from issuing illegal judicial writs, particularly of the scandalous character of the one alluded to.
At the issuance of said attachment, I was absent at Galveston,
on the mission intrusted to me by your Lordship; upon the reception of your said communication, I sent for the Alcalde and Grey,
to inquire into the matter, and from the prior circumstances, and
the declaration of the witnesses, the facts appear to be as follows:
Grey bought an ass from Martin de Leon, paid for it, and left
it with the bell mare; afterwards Grey sent for the ass by a certain
Bison; De Leon refused to deliver it, claiming 25 Dollars or a cow
and a calf for the Expense of keeping the ass, and furthermore
declared to Bison that he owed nothing to Grey. When De Leon's
cart arrived at the Colorado, Grey appeared before the Alcalde,
complaining that De Leon owed him the value of the ass and
refused to deliver it, although it was claimed by Bison, and claiming from the Alcalde, a writ of attachment on De Leon until the
case should be disposed of in law. The Alcalde issued the writ,
which was executed; and the cart was attached for the purpose of
securing a judicial hearing for the parties. Agreeably to the provisional law existing in this Colony, Sylvester De Leon might have
stopped the attachment by giving security for his appearance before the Alcalde to answer Grey's charges, but, instead of doing so
he returned to the Guadalupe.
The provisional law by which we are governed provides, that,
whenever a person who is indebted to another is about to leave the
country or to remove his property out of its jurisdiction, then, at
the request of the plaintiff, the Alcalde shall issue a writ of attachment of said property to prevent its removal from the jurisdiction
until the case is lawfully disposed of, the plaintiff being, in all
cases responsible to the defendant for the damages accruing from
said attachment if it should appear that the process was illegal,
or without foundation; the defendant being allways at liberty to
stop the attachment by giving security for his appearance before
the competent authority.
In this case of De Leon, Grey declared upon oath, before the
Alcalde, that De Leon owed him the value of an ass, which he refused
to pay, that he had property within the jurisdiction which he was
about to remove. Grey applied to the Alcalde for a writ of attachment, agreeably to the regulations on the subject matter, and the
Alcalde was in duty bound to issue the writ; in doing so he did not
overstep the limit of his power, nor commit an abuse of authority,
as your Lordship remarks in your communication; on the contrary,
he did what the law compelled him to do.
The only laws we have for our government in this country, are
the provisional rules approved by the Political Chief of Texas, and
which His Excellency, the Governor, in his communication of February the 12th, 1825, ordered to be observed until the general laws
were published. I think that if we have no other laws than these,
the fault can be attributed neither to me, nor the Alcalde of the
Colorado. I have repeatedly applied for copies of the law of the
Country, but I have, as yet, received no instructions from the government beyond a recommendation to administer justice and preserve
the Colony. Owing to the total absence of laws and rules,
I was compelled by necessity and my feeling of duty, being in charge
of the chief magistracy of this jurisdiction, to frame some plain and
provisional rules to preserve order and establish some kind of system;
I did so with the consent, approbation and assistance of the Commissioner, and they have also received the sanction of the Superior
authority; I therefore consider them as provisional laws, and cannot
cease to do so without declaring that the Supreme Powers who sanctioned them, have exceeded their authority and overstepped the
circle of their prescribed duty. This principle once Established, the
only question that remains to be settled in the case of the Alcalde
of the Colorado and De Leon is the following: Did the Alcalde
follow said rules, or did he not? In my opinion, formed upon the
inquest I have made, he has followed them; he was compelled by
said rules to act as he did, and had he not done so he would have
deserved punishment. In this matter, in consequence of your Lordship's order, the Alcalde finds himself between two fires, without a
possibility of escaping both. Your Lordship's order condemns him
to a fine and cost which will ruin him, and, had he failed to follow
the provisional rules, the plaintiif would have had sufficient incentive
for complaint and suit against him for a dereliction of his duty in
the administration of justice according to the existing laws. Said
provisional rules are very plain and clear. It was De Leon's duty
to, and he ought now, according to said rules, give security for his
appearance before the Alcalde there and then to answer Grey's complaint, and if it appears that he is indebted, then he should pay,
and in case of unwillingness on his part to abide by the decision of
the Alcalde, he [could] bring the case before me, as local judge of
the whole jurisdiction, and, as such, having power to inquire into
the conduct of the Alcaldes within its limits; then, in case of dissatisfaction with my decision on the subject, he could carry the suit
before the corresponding superior courts of justice; In this manner
he will not deviate from the path laid down by law, and by the very
essence of the system of government which controls us, and, which,
Establishes a distinction between the judiciary and Executive powers. The Alcalde's writ was a judicial process, and agreeable to
the rules in force here. Your Lordship's order was Executive, and
annulled an act of a judiciary officer, imposing a ruinous fine on him;
and this on the mere representation of one of the parties without
giving the other a hearing, without any inquiry into the facts in
question, by the local authority; and, consequently, without the possibility of ascertaining whether the act of the Alcalde was legal,
or not.
An other difficulty presents itself in thus reviewing the subject.
What means had Grey at his command to obtain his money from
De Leon, if it is, indeed, due him? De Leon is the sole judge and
commanding officer of the Militia of Guadalupe, and, consequently,
Grey would have had to present his complaint against Martin de
Leon before judge De Leon for his decision, or to proceed against
his property found in another jurisdiction. He adopted the latter
course.
I do not wish to make complaints against Martin de Leon; but
my duty towards these new Colonists compels mo to say, that, according to statements made to me, it appears that he has treated a
resident of this district, named Edward Dickenson, with injustice
and cruelty. Dickenson's brother, who was killed by the Indians
near Bexar, gave to De Leon a kettle, which he promised to deliver
to him; on his return he was killed. Edward went to Bexar to
obtain his deceased brother's property. De Leon claimed from him
the kettle, which was then at Bexar, and which he promised to leave
with Señor Sandoval; but he departed from Bexar prior to Sandoval's arrival, and left it with other property in a house under
lock and key, in charge of Nixon to be delivered to Sandoval when
he arrived. A thief entered the house and stole the kettle On the
arrival of Dickenson at Guadalupe, on his way from Bexar to this
town, De Leon arrested him and seized upon his property; or, to
express it more clearly, put him in jail, took from him his rifle and
a bag of wool, and detained him for 32 days.
Dickenson made his complaint to me and presented an account
against De Leon, as follows:
$12 for a rifle, $5. for a sack of wool, $23. for one month's board,
paid to Hardy, and $18 for one months detention, in all $53, without
speaking of the forcible and violent manner in which he was detained. I do not say that Martin de Leon, went beyond the limits
of his powers by taking from Dickenson all his property, detaining
him for one month a prisoner, and sending him away on foot, without a real for his travelling expenses, because I have not heard what
De Leon has to say in the matter, but I hope that Your Excellency
will be pleased to give me your instructions respecting the course to
be followed to ascertain the facts of the case. I consider it to be
my duty to do so, because this business has created a great deal of
excitement here, against De Leon, and some apprehension about the
security of persons and property.
Considering all the features of the transaction between Grey, De
Leon, and the Alcalde of the Colorado, I find myself in an exceedingly delicate and embarrassing situation. I presume that my conduct, since I entered Texas, has been a proof of my obedience and
submission to the lawful authorities, and this is the first order which
I have not executed as soon as circumstances permitted, without
hesitation, or delay. Like the Alcalde of the Colorado, I am between
two fires. On the one hand duty, as well as honor and inclination,
urge me to obey faithfully the orders of the Superior authority; on
the other, the same considerations cause me to doubt if my compliance, will not amount to an injustice, or produce fatal consequences.
Our people, thus far, have been contented to live under the existing
provisional rules, convinced that they were approved by the Superior Authority; but your Lordship's order causes them to doubt
their legality, and whether they are bound to obey them. Thus I
run the hazard of finding the only rules and laws by which I could
hope to succeed in preserving good order in the Colony, and keeping
bad men in subjection destroyed and annulled by the very authority
that sanctioned them and this without supplying their places by any
others. It will be believed that if the rule under which the Alcalde
of the Colorado attached De Leon's property is not lawful, no other
rules are so, since they were established by the same authority.
The amount of money in litigation with De Leon is nothing, nor
ought the ruin of the Alcalde of the Cororado, or any other person
to have any weight if they are guilty. The difficulty lies in the disorganizing principles that may be created, and, also, in the belief that
cannot fail to exist in the minds of the settlers, that the Executive, or
political officers unite in their persons all the executive and military
political and judiciary powers that were formerly vested in the Governors and the Spanish Government.
Therefore I beseech your Lordship to decide that De Leon's case
shall follow the course prescribed by the existing provisional rules,
and to excuse my hesitation in executing your orders to the effect that
the Alcalde shall return, at his expense, the attached property to
De Leon on the Guadalupe; considering that my delay has been
caused by the doubt herein submitted, and not by a want of respect
for the Superior authority.
God and liberty.
Estevan F. Austin.
San Felipe de Austin, March 18th, 1826.