Stephen F. Austin to Jose Antonio Saucedo, 03-18-1826

Summary: Examination of a contest between one Grey and Martin De Leon. Judicial procedure, and protest against arbitrary interference of executive authority.

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 SeƱor 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.