by Mike Cox
The legislature did take one piece of decisive action in response to the crime: almost immediately after the representative’s murder, it approved installation of two large gas lamps at the foot of the capitol steps, two lamps in the lower hall of the building and one at the south gate of the capitol grounds. The lamps were to be kept lit from dark “until eleven o’clock each night during the remainder of the present session of the Legislature.”
During the construction of the present capitol, rumor spread among the laborers and tradesmen that one of their co-workers had been murdered. “There was a carpenter working on the building whose wife chose that site for his murder,” bricklayer Gustave Birkner wrote in his unpublished memoir. “She sent arsenic in his tea and poisoned him one noon.”
If such a crime occurred, it did not make the newspapers. But Birkner said the contractor kept the lid on news of any mishaps or unsavory incidents on the job site. “If anything happened on one end of the building, we wouldn’t hear of it if we were working on the other side,” he wrote. “Many of the workers were superstitious…so the contractors and bosses definitely discouraged any talk about them.”
Eleven years after the capitol’s dedication, another member of the legislature died under suspicious circumstances. Representative S.P. Evans of Sherman died in Austin on March 19, 1899, during that year’s regular legislative session.
“A rumor is prevalent on the streets that [Evans] was murdered,” a Sherman newspaper reported on April 12 that year. “The bruises on his face and contusion on the back of his head indicate foul play and it is now believed he was the victim of an assault between the capitol…and his hotel the night before his illness was announced. A quiet investigation has been in progress, but so far no incriminating evidence has been found.”
But the same day the afternoon San Antonio Light pooh-poohed the murder story as having originated “from a wild-eyed news monger.” The Alamo City newspaper reported, “Speaker [James S.] Sherrill…stated that before Evans’ death he had heard rumors of a bruise on the head and made a thorough investigation. He learned that Evans had fallen on his head striking against a box. The wound was only slight. Nobody here believes the Sherman story.” The San Antonio Express said Evans had tripped a few days before his death and struck his head on stone curbing but that it had nothing to do with his death.
The story dropped from the news after that. Today, determining cause of death is a relatively easy procedure in most cases. If a doctor performed an autopsy on Evans, that fact went unreported. However the North Texas lawmaker died, the House and the Senate each recessed for a time in his honor.
The most sensational murders in the capitol occurred only in the vivid imagination of Texas novelist Bill Crider, who used the statehouse as the setting for his 1992 whodunit Texas Capitol Murders. In that well-reviewed page-turner, a young cleaning woman is found strangled in a trash hamper in the basement of the capitol. The medical examiner’s autopsy showed she had been pregnant. The day after that shocking discovery, a second body is found in a men’s restroom. This time the victim is a male legislative staffer.
The governor asks for a Texas Ranger investigation (which in real life would not be necessary since the Rangers have primary jurisdiction on state property), and the state lawman who takes on the case, according to a review in Publisher’s Weekly, finds “a varied assortment of suspects ranging from right-to-lifers to political time-servers, naive coed capitol guides to powerful lobbyists.” As the novel nears is denouement, a third person dies violently. The reviewer concluded that the retired college professor’s 329-page book, with its “neatly detailed setup, twisting plot and colorful cast of characters… will keep readers riveted.” And, unlike the real murder that happened on the capitol grounds in 1873, the killer in Crider’s book does not escape justice.
5
MR. FLEMING OF COMANCHE
On a hillside shaded by tall evergreens overlooking Spokane, Washington, is Greenwood Memorial Terrace, a garden-like cemetery established in 1881. More than thirty thousand people lie buried there, including one James Richard Fleming.
His gravestone is a simple rectangle of two-tone granite, a smaller pink stone fitted into a larger gray slab, bordered with concrete. Other than his name, the only other information on the marker is his date of birth and death, “1847–1904.” And the date of his birth is wrong by a year. The website findagrave.com lists nine “Famous Interments” in this cemetery, but Fleming’s grave is not one of them.
The Spokane cemetery is a peaceful enough place to end up, but by all rights, Fleming’s remains ought to be in the Texas State Cemetery in Austin under a much more imposing monument, one that places his story in historical context. After all, when all the many dusty layers of the capitol story are swept away, the genesis of the Texas Capitol traces to this decidedly unremembered man.
Born on September 10, 1848, in Feliciana, Kentucky, he later moved with his family to Tennessee, where he grew up. When bitter sectional rhetoric boiled over into secession and the Civil War in 1861, at only thirteen, Fleming enlisted in the Confederate army, serving under General Nathan Bedford Forrest.
A couple years after the war, in 1867, Fleming decided to move to Texas. He settled in Columbus, where he bought the town’s newspaper, the Columbus Times. He published the Times for a year before selling it so he could focus on reading the law. After passing the bar exam on March 16, 1870, he married Mary McLeary Grace that November 1—her twenty-second birthday—and they moved northwest across the state to Comanche County. His legal services not always in demand, he further provided for his family through merchandizing and banking.
In the summer of 1875, by then well integrated into the Comanche community, he was elected as a delegate to the ninety-member Constitutional Convention set to convene in Austin on September 6. With Reconstruction ended, the convention was mostly about two things: restricting the power of state government (particularly the governor) and keeping a tight rein on state spending. Delegates even refused to pay for a stenographer to record the proceedings.7
So far as is known, Fleming left no diary revealing his thought processes at the time, but at some point during the first month or so of the convention, the gentleman from Comanche had an idea. Maybe having to spend so much time in the poorly built 1853 capitol had something to do with it. Anyone could see that Texas needed a new statehouse, but the state was more than $3 million in debt. Fleming had read the comptroller’s report on the state’s finances. With a national financial depression gripping the nation, projected tax revenue would cover only half the state’s budget. Given the financial and political climate, a tax increase was out of the question.
This photo montage of members of the 1875 Constitutional Convention hangs in the capitol that their resolution helped make possible. Author’s collection.
However, Texas did have plenty of public land, some forty-eight million acres. Likely from his study of the law, the twenty-seven-year-old lawyer had at least some familiarity with the federal Land Ordinance of 1785 and the nation’s next major measure dealing with public land, the Pacific Railway Act of 1862 and its successors. A component of the first law had to do with leveraging public land to fund public education, while the acts passed during the Civil War set aside part of the public domain to help pay for the nation’s first transcontinental railroad. Also, Fleming knew the Republic of Texas had issued land scrip to secure loans and land bounties to pay its soldiers and that starting in the 1850s the state had offered public land for infrastructure development and to induce railroad construction. Perhaps inspired by the federal laws and his awareness of the various ways Texas had used its land in lieu of money, on November 1—his fifth wedding anniversary and the forty-ninth day of the convention—Mr. Fleming of Comanche offered for consideration this resolution: “Resolved, That the Committee on Public Lands and Land Office be requested to consider the propriety of setting apart five million acres of the public domain for the purpose of building a State capitol,
and to report by ordinance or otherwise.”
Convention president Edward B. Pickett quickly referred Fleming’s resolution to committee, but that day’s convention journal has nothing more to say of the matter. Still, the process had begun. On November 11, delegate W.H. Stewart of Galveston offered essentially the same resolution, although his version shaved two million acres off Fleming’s suggested appropriation. Stewart’s resolution went to the committee on state affairs, which on November 17 reported favorably on the proposal.
Chaired by former Texas Ranger John S. “Rip” (Rest in Peace) Ford, the committee made this observation in its report:
It is evident that within a few years repairs and changes will be required… upon the capitol and other public buildings, and, in order to accomplish these objects, an outlay of money will be made. As a measure of economy, it may be proper and expedient to erect these buildings anew, so that they more appropriately represent the augmented population of the State.
In addition to his Ranger service, Ford was a trained physician, lawyer and onetime newspaper editor. Clearly, it was the doctor in him that composed the committee’s report. While written in a complicated way, the meaning came through: given the cost of repairs, and the growth of the state, it would make more sense to build a new capitol than try to fix the old one.
Accordingly, the six-member committee offered this proposed wording as a section of the new Constitution:
Three million acres of the public domain are hereby appropriated and set apart for the purpose of erecting and constructing a new State capitol and other necessary public buildings, at the seat of government; said lands not to be sold until ten years after the adoption of this constitution; and the Legislature shall pass suitable laws to carry this section into effect.
Delegate George McCormick tried to get the allotment increased to ten million acres, while another delegate sought to lower the acreage to only one million, but neither effort gained traction and the convention voted forty-eight to four to include the section as written in the proposed constitution. The following February, Texas voters ratified the Constitution, a long and complicated state charter that remains the organic law of Texas.
Back in wild and wooly Comanche, where in 1874 a prolific killer named John Wesley Hardin shot and killed a sheriff’s deputy and then managed to elude an entire company of Rangers (in the aftermath, the good people of Comanche did at least lynch Hardin’s brother and a few others), Fleming decided to seek election as judge of the Twelfth District Court. “Mr. J.R. Fleming will be one of the best district judges of Texas,” the Austin Statesman said on January 20, 1876, “and Comanche is properly solid in his support. He won deserved honors for his ability and integrity while a member of the Constitutional Convention.”
Journal of the proceedings of the 1875 Constitutional Convention reproduced delegate J.R. Fleming’s resolution that proposed setting aside five million acres to fund a new state capitol. The amount of land later was reduced to three million acres. Author’s collection.
Fleming won the election and went to work. A letter from Comanche published on October 1, 1878, in the Waco Daily Examiner praised the judge, noting that “the law is rigidly enforced.” The anonymous correspondent, who signed his dispatch “Fascination Fledgy,” noted that Fleming was the state’s youngest district judge and had succeeded in suppressing “the mob law in this district, overcoming the evils resulting from the factional feuds which for a time run [sic] riot over this country.”
The young judge’s reputation continued to grow. “The newspapers say that [Fleming] is one of the coming great men of Texas,” the Austin Statesman reported on March 27, 1879. “He is eloquent, learned and brave, and pure in both public and private life.”
While busy helping to bring law and order to his part of Texas, Fleming surely read with satisfaction that on February 20, 1879, the legislature had passed a bill creating a board to spearhead the building of a new capitol. Made up of the governor, comptroller, treasurer, attorney general and land commissioner, the board was authorized to hire a superintendent “who is a skilled architect” and two commissions to get the job done.
Fleming remained on the bench until 1880, when he moved to Cisco in Eastland County and soon partnered with two other men in a real estate and land title business. Three years later, voters sent him to the Senate to represent District 29. While in Austin, Fleming got to see a new capitol slowly taking shape where the old one had stood. As he had first envisioned, in exchange for the promise of three million acres, the structure was being built by a group of Chicago businessmen who came to be referred to as the Capitol Syndicate, “syndicate” at that time being essentially a synonym for “corporation.” (The state had thrown in another fifty thousand acres to pay for surveying the land.)
As a member of the Senate, Fleming read the capitol board’s reports and other documents pertaining to the project. Chicago businessman Abner Taylor, along with Amos C. Babcock and brothers John V. and Charles B. Farwell, formally known as Taylor, Babcock and Company, had won the contract to build the capitol.8
In 1889, Fleming moved to San Antonio, where he was appointed to oversee the sale of the foundering San Antonio and Aransas Pass Railway Company as master of chancery. He relocated to Houston in 1894, the same year he served as a delegate and temporary chairman of the state Democratic convention in Dallas. It being a national election year, he also represented Texas at the national democratic convention in Cleveland. Two years later, in 1896, Fleming and his wife left Texas for Spokane, Washington. After he died there of Bright’s disease on May 25, 1904, at fifty-five, his widow returned to Texas. She settled in Fort Worth and lived another ten years.
Descendants of several score key figures involved in the planning, financing and construction of the capitol can truthfully boast that their forebears had a role in bringing about the state’s Texas-size statehouse, but it all traces back to an idea the honorable James Richard Fleming of Comanche had in 1875.
6
THE MAN WHO BURNED DOWN THE CAPITOL
Shortly before noon on November 9, 1881, the wind blew out of the north in Austin, and a light rain fell from a sky as gray as an old Confederate army coat. With the norther dropping the temperature, maybe the porter sweeping the floor in the attorney general’s office on the capitol’s first floor had in mind warming up the room. Or perhaps Henry McBride just wanted to get rid of a basket of wastepaper the easy way, by stuffing the trash into the heating stove.
Whatever his intention, McBride moved on to the next room, pushing his broom. Soon he smelled smoke. Running back into the room where the stove sat, he saw flames coming from the wall around the chimney pipe. As he watched in astonishment, the fire quickly spread. All he could do was run for his life.
A writer for Texas Siftings walking home for lunch noticed wisps of smoke coming from one of the windows of the limestone statehouse. “That’s the way those State officials waste firewood,” he thought, or at least so he claimed in a tongue-in-cheek article he later wrote. “There they are toasting their sinful shins before fires in which they waste enough wood to do a respectable family for a week.”
But soon the fire bell atop city hall began ringing. The number of clangs informed the volunteer firefighters—rushing to the hall to get their equipment—that the fire was in the eighth ward, downtown Austin.
Though the limestone capitol had been a bonfire waiting to happen, Governor Oran M. Roberts, remembering the 1865 looting of the state’s treasury, feared history was repeating itself. Holdup men must have started a fire in the capitol to divert attention, he thought. The governor quickly ordered several Texas Rangers camped on the capitol grounds to go guard the vault. The only enemy on this day, however, was the natural consequence of fuel, oxygen and an ignition source.
The 1853 capitol caught fire on November 9, 1881, expediting the state’s plans to build a new, grander statehouse. Author’s collection.
“It was a thrilling scene,” the next edition of
Texas Siftings reported. The writer continued:
The fire’s demon cruel tongues licked the fair proportions of the historic pile, while huge volumes of black smoke poured from the doomed building, and settled over the fair city…like a sable funeral pall, enveloping in its somber folds the spires and domes that glitter on the several hills of the Capital City…while the toot, toot, toot of the fire engine, and the hoarse profanity of the enthusiastic volunteer firemen, seemed a solemn and appropriate dirge as the old sarcophagus crumbled.
Low water pressure at the nearest hydrant, which sat seven hundred feet from the statehouse due to the fact that two previous sessions of the legislature had not seen fit to appropriate money for fire hydrants on the capitol grounds, prevented the volunteer firefighters from putting much more than a light mist on the blaze. In less than two hours, only a blackened limestone shell remained of the Texas statehouse.
“The architectural monstrosity…at the head of Congress Avenue is no more,” the Texas Siftings summarized. “The venerable edifice that bore such a striking resemblance to a large size corn crib, with a pumpkin for a dome… took fire on Wednesday.”
Though newspaper reaction to the loss of the capitol varied from near indifference to open sarcasm, many government records dating to the days of the Republic of Texas burned in the fire. Geologic samples and a collection of cultural artifacts, including shields and lances seized by Indian-fighting Texas Rangers, also went up in smoke. One of the items was a coat of mail dating from Spain’s reign over Texas in the 1700s. The item had been removed by rangers from the dead body of a Comanche headman known as Iron Shirt, one of his forbears apparently having relieved a Spaniard of the protective wear years before. In addition, eight thousand books lining the shelves of the state library had been incinerated. The loss of the library alone was placed at $40,000, a huge sum for the day.