Republic Texas v. Skidmore

• Decision Date: 31 December 1847
• Citation: 2 Tex. 261
• Parties: THE REPUBLIC OF TEXAS v. ABRAHAM SKIDMORE
• Court: Texas Supreme Court

2 Tex. 261

THE REPUBLIC OF TEXAS

v.ABRAHAM SKIDMORE

Supreme Court of Texas.

December Term, 1847.

Appeal from Red River County.

The doctrine of the domicile of the husband being that of the wife, or of the head of a family being that of the family, was not admitted in the construction of laws of colonization.

The object of the provision of the constitution granting lands to families and single men was the bestowal of a bounty on those only who were actual residents of the soil at that date.

This was a suit brought by the appellee, in 1842, to establish his claim to a headright for one league and one labor of land. The most material facts of the case will be found stated in the opinion of the court.

Harris, Attorney General, and Morrill, for appellant.

Allen and Everts, for appellee.

Mr. Chief Justice HEMPHILL delivered the opinion of the court.

This cause was brought before the supreme court of the republic, and on the facts sent up in the record the judgment of the court below in favor of the petitioner was reversed, and the cause remanded for a new trial, in order that he might show, if he could, by additional proof that he was entitled to the amount of land sued for, or a less quantity.

The case is reported in Dallam, 581, and it appears from the facts then in proof, that the appellee came to Texas in February, 1836, and remained until June of the same year. He left, stating that he intended to return, and did so in April, 1839. Whilst here in 1836 he performed all the duties incident to a good citizen. Upon his return he laid claim to a selection of land made by him in 1836; when he left in 1836, he left with the intention, as stated by himself, of going for his family; and upon his return he brought his wife and children with him. He also proved by two other witnesses that at the date of declaration of independence he was a married man and the head of a family, and it was proven that they were residing at that date in Alabama, in the United States of North America.

The questions presented by these facts were maturely considered by the court, and in the lucid opinion delivered by Judge Baylor, it was held “that to make a man a resident citizen within the meaning of the constitution, he must have resided at the date of the declaration of independence within the republic with the intention of remaining, and that if he left it, he must have quitted the country with the intention of returning, and that the claim of the appellee, tested by these principles, could not be supported.

That Skidmore's long absence from the country, which was totally unaccounted for, with the fact that his home, family and property were in Alabama during all that time, lead us irresistibly to the conclusion that he had not at the date of the declaration of independence made this country his residence animo manendi, and that when he left it he did not do so without the certain intention of returning, and that the equivocal conduct of the claimant relative to his inhabitancy, intention of remaining, and returning to the country, would not entitle him to the liberality of the republic.” Dallam, 582.

On the second trial there was additional proof adduced by the claimant and by the republic, and a second verdict was found for the appellee. We are of opinion that his long absence from the country was accounted for satisfactorily by the facts adduced in evidence; and that his acts after his return to Alabama demonstrated an intention to change his domicile.

There were some contradictory statements relative to the patriotism of the expressions and conduct of the applicant in the spring of 1836. As the jury were the best judges of the weight to be given to these statements under all the circumstances, we will make no comment upon them, nor will they enter into our consideration further than as they show that the claimant cannot be classed among the officers and soldiers whose families did not emigrate with them to the country, and for whom special provision was made by the 30th section of the law of 1837.

Is the claimant, on the facts now presented, entitled to a league and labor of land, under the laws regulating the grant of certificates for headrights?

We have repeatedly decided at the former term of this court, that the jurisdiction of the district court to hear and determine claims for land was a special and limited authority, restricted to the admission of such claims alone as could be established by the number of witnesses and the facts positively prescribed by the law. And that where all the requisites pointed out in the statute are not complied with, no case is presented for the exercise of the jurisdiction originally vested in a board of land commissioners and subsequently in the district courts. And their acts confirming claims on any other facts or circumstances than those distinctly defined in the statute are usurpations of power not warranted by the law of the land.

A grant of a certificate for a league and labor to an emigrant who had arrived in the country five years after the declaration of independence would be a flagrant usurpation obvious to all. And a grant to one who had arrived five years before the declaration of independence, but whose application was not sustained by the oath, the number of witnesses and the facts prescribed by the law, would be also usurpation, not so glaring and obvious to common comprehension as the former, but equally unsanctioned by the authority of law. The jurisdiction is not dependent on the supposed merits or hardships of the case of the applicant, but upon the establishment of the facts and compliance with the requisites prescribed by the statute. The claimant must prove that he was actually a citizen of Texas at the date of the declaration of independence, and continued to be such up to the time of his application for the certificate, and must prove, also, whether he was married or single at the time of the declaration of independence.

The appellee has proved that he was in Texas at the date of the declaration, and that he was a married man, but that his family was then residing at his former domicile in a foreign country.

What are we to understand by the signification of the terms a “married man,”...