The Fred Parks Law Library has recently acquired a volume of great importance to Texas legal history, the 1856 Texas Penal Code and Code of Criminal Procedure. These two codes are combined in one volume, and represent the first official codified version of Texas law. Prior to their enactment, the only official version of Texas law available to the lawyers and judges of the state was the session laws.1

The Texas Constitutions of 1836 and 1845 both had provided that, as soon as possible, the laws of the state should be collected and codified; work was not begun immediately either time. Unofficial compilations of the laws of Texas were created in both 1845 2 and 1850, 3 but these proved so incomplete and confusing to the legal community that eventually enough impetus was created for an official version, which the Texas Legislature authorized in 1854. 4

By an Act of the Texas Legislature on February 11th, 1854, the Governor of Texas was authorized to appoint a committee of three men to revise and digest the civil and criminal laws of the state. 5 Governor Elisha M. Pease appointed to the committee John W. Harris, Oliver C. Hartley, and James Willie. Harris was supposed to revise the civil statutes; Hartley was to compile the code of civil procedure; and Willie was tasked with preparing both the criminal substantive and procedural codes. 6

Governor Pease was himself an attorney, who actually had had a hand in writing Texas' first criminal laws in 1836. 7 Harris was an easy choice for the committee, since he had practiced law with Pease since 1838. 8 Hartley had practiced law since 1844, and was at the time of his appointment to the committee the Reporter of the Texas Supreme Court. 9 Hartley had also previously produced his own unofficial compilation of Texas law in 1850. 10 Willie served in the first legislature of the state of Texas in 1846, began practicing law in 1847, and around the time he was completing the 1856 penal and criminal procedure codes, he was elected Attorney General of Texas. 11

The committee drafted four codes, substantive and procedural codes for both the civil and criminal laws of the state. Only the Penal Code 12 and Code of Criminal Procedure 13 ended up being adopted. 14 Both were first amended by the Legislature, the Penal Code with major amendments, and the Code of Criminal Procedure with only minor ones. The Code of Criminal Procedure was then adopted by the Sixth Legislature on August 26th, 1856, 15 and the Penal Code on August 28th, 1856. 16 James Willie was also contracted to superintend the publication of the volumes and to prepare an index to them. 17 Both codes then went into affect on February 1st, 1857. Both are now known as the Codes of 1856, for the year of their adoption, or as the "Old Codes," sometimes abbreviated "O.C." 18

The two Texas codes were supposedly largely based on Edward Livingston's criminal codes written for Louisiana, 19 which were completed in 1825. Livingston's work aimed at the prevention of crime, not the avenging of it, an extremely enlightened idea at the time. 20 Jeremy Bentham, the English legal reformer and political philosopher, had first agitated for the codification of penal law in England and other common law countries beginning in the 1770s, but it was Livingston who drafted the first actual code based on Bentham's principles. 21

However, the state of Louisiana chose not to adopt Livingston's code, perhaps because it was too revolutionary for its time. 22 As an example, Livingston's code included the abolishment of the death penalty. 23 Livingston also later presented to Congress in 1828 a plan for a system of penal law for the United States. 24 This plan was also never adopted. Nevertheless, Livingston's proposed codes were published and well circulated in Europe and America, which is how they came to the attention of the early Texas codifiers. 25

Thus, the 1856 Texas codes based on Livingston's work were revolutionary for their time, although they did include capital punishment. The 1856 Penal Code was also the first in Texas to declare every criminal offense under the law, therefore eliminating the use of the common law of crimes in Texas. Henceforth the common law governed Texas penal law only as a rule of construction when not in conflict with any statutory provision. 26

In keeping with Articles seven and eight of the new Penal Code, and similar articles in the Code of Criminal Procedure, the Attorney General and the Judges of the state were to prepare reports for the next Legislature if there were any problems with the new codes. Three of those reports have survived, and are quite voluminous. 27 However, the greatest amount of complaints by the legal community against the new codes seems to have been merely for their novelty and newness, which thus also required the legal community to learn the law anew; and the fact that the law since its codification was more plain and less mysterious, and perhaps less intimidating now to the layman, and thus might also lower the level of respect the layman had for the legal profession.

Several suggested changes to both codes were passed by the next session of the Legislature on February 12, 1858, and they took effect on July 1st, 1858. 28 It would appear that the legal community and citizens of the state were finally happy with, or at least getting used to, the new codes by the time of the next Legislature, since in December 1859, the Attorney General of Texas reported that:

"The defects in the Codes, which have occurred to me as deserving the attention and remedial action of the Legislature, are happily not numerous or very important, for with whatever rancor and severity the system of criminal laws inaugurated by the Codes may have assailed in the outset, it cannot now be denied that the practical workings of the system have fully met, if not exceeded the expectations of its friends, and in a great measure silenced the clamor of its opponents." 29

No official codification of the civil statutes or of the entire set of civil and criminal laws of the State of Texas was completed until 1879. 30 However, two more unofficial compilations of the laws of the state were prepared in 1859 31 and 1866, 32 the second one the most successful venture of the unofficial compilations. 33

It deserves mention that the trailblazing 1856 Texas Penal Code and Code of Criminal Procedure were never published as part of the session laws of the state, and did not end up being reprinted either in Gammel's The Laws of Texas, 34 or John and Henry Sayles' Early Laws of Texas, 35 two widely available reprints of early Texas laws. Thus, this important, seminal volume of Texas criminal law is very rare, even in the state of Texas itself. 36 This important book is now housed in the Fred Parks Law Library's Special Collections Department, in order to receive the extra care and security it deserves. Should you wish to consult the 1856 codes, please contact the library's Special Collections Librarian, or if that person is unavailable, please consult the reference librarian on duty.

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1 Karl T. Gruben and James E. Hambleton, editors, A Reference Guide to Texas Law and Legal History: Sources and Documentation. Second Edition. (Austin, Tex.: Butterworth Legal Publishers, 1987), at 16.

2 James W. Dallam, Digest of the Laws of Texas. Baltimore: Toy, 1845.

3 Oliver C. Hartley, Digest of the Laws of Texas. Philadelphia: Thomas, Cowperwaite, 1850.

4 Gruben and Hambleton, supra note 1, at 15.

5 The date appears in the Preface of the Penal Code, infra note 12. The date of the Act appears as February 10, 1854, in Gammel's The Laws of Texas. 3 H.P.N. Gammel, The Laws Of Texas, 1822-1897, at 1520 (Austin, Gammel Book Co. 1898).

6 A. E. Wilkinson, Edward Livingston and the Penal Codes, 1 Tex. L. Rev. 25, 38 (1922).

7 "Pease, Elisha Marshall." The Handbook of Texas Online. http://www.tsha.utexas.edu/handbook

8 "Harris, John Woods." The Handbook of Texas Online. http://www.tsha.utexas.edu/handbook

9"Hartley, Oliver Cromwell." The Handbook of Texas Online. http://www.tsha.utexas.edu/handbook

10 Hartley, supra note 3.

11 "Willie, James." The Handbook of Texas Online. http://www.tsha.utexas.edu/handbook

12 State of Texas. The Penal Code of the State of Texas. Adopted by the Sixth Legislature. Galveston: Printed at the News Office, 1857.

13 State of Texas. The Code of Criminal Procedure of the State of Texas. Adopted by the Sixth Legislature. Galveston: Printed at the News Office, 1857.

14 Gruben and Hambleton, supra note 1, at 16.

15 State of Texas, supra note 13, at 188.

16 State of Texas, supra note 12, at 167.

17 State of Texas, supra note 12, in the Preface.

18 Gruben and Hambleton, supra note 1, at 16.

19 Wilkinson, supra note 6, at 38.

20 W.S.C., "Livingston, Edward," 11 Dict. Am. Bio. 309, 311 (1933); Eugene Smith, "Edward Livingston and the Louisiana Codes," 2 Col. L. Rev. 24, 32 (1902).

21 Charles Noble Gregory, "Bentham and the Codifiers," 13 Harv. L. Rev. 344, 349 (1899).

22 Edward Livingston, A System of Penal Law for the State of Louisiana: Consisting of a Code of Crimes and Punishments, a Code of Procedure, a Code of Evidence, a Code of Reform and Prison Discipline, a Book of Definitions/Prepared under the authority of the law of the said state. Philadelphia: James Kay, 1833.

23 Sanford H. Kadish, "Codifiers of the Criminal Law: Wechsler's Predecessors," 78 Col. L. Rev. 1098, 1102 (1978).

24 Edward Livingston, A System of Penal Law for the United States of America: Consisting of a Code of Crimes and Punishments, a Code of Procedure of Criminal Cases, a Code of Prison Discipline, and a Book of Definitions, Prepared and Presented to the House of Representatives of the United States. Washington, D.C.: Gales & Seaton, 1828.

25 Wilkinson, supra note 6, at 36.

26 Nelsen Phillips, "Historical Introduction," 1 TEX. JUR. lii (1929).

27 In fact, the Attorney General at the time of the first report had been the chief compiler of the codes, James Willie. Nowhere in his AG report is it apparent that he was the main drafter of the codes. James Willie, Attorney General. Annual Report of the Attorney General, Made to the Governor, November 1857. Printed by order of the Legislature of Texas. Austin: Printed by John Marshall & Co., State Printers, 1857; C.A. Frazer, Report of Hon. C.A. Frazer on the Penal Code. Printed by order of the Legislature. Austin: John Marshall & Co., State Printers, 1857; P.W. Gray, Report of Hon. P.W. Gray on the Penal Code. Submitted to the Legislature by its Authority. Austin: Printed by John Marshall & Co., State Printers, 1857.

28 Acts of the Seventh Legislature of the State of Texas. Chapter 121, pp. 156-189. Reprinted as 4 H.P.N. GAMMEL, THE LAWS OF TEXAS 1822-1897, at 1028 (Austin, Gammel Book Co. 1898).

29 M. D. Graham, Attorney General. Report of the Attorney General of the State of Texas, 1859. Printed by Order of the Eighth Legislature. (Austin: Printed by John Marshall & Co., State Printers, 1860): 4.

30 Gruben and Hambleton, supra note 1, at 17. J. W. Ferris and John N. Lyle, The Revised Statutes of Texas, Adopted at the Regular Session of the Sixteenth Legislature, A.D. 1879. Galveston, Tex.: A. H. Belo & Co., 1879.

31 Williamson S. Oldham, and George W. White, Digest of the General Statute Laws of the State of Texas. Austin: Marshall, 1859.

32 George W. Paschal, A Digest of the Laws of Texas. Galveston, Tex.: S. S. Nichols, 1866. This text proved so popular it went through five editions, the last one in 1875.

33 Gruben and Hambleton, supra note 1, at 15.

34 H. P. N. Gammel, The Laws of Texas, 1822-1897. 10 vols. Austin: Gammel Book Co., 1898.

35 John Sayles and Henry Sayles, Early Laws of Texas, 1731-1879. 3 vols. Saint Louis: Gilbert Book Co., 1888.

36 Many thanks to Charles A. Spain, Jr., Staff Attorney for the Texas First Court of Appeals, for bringing this fact to the attention of the staff of The Fred Parks Law Library.