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Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47
Gc 976.4 L99b 1746071
REYNOLDS HISTORICAL GENEALOGY COLLECTION
ALLEN COUNTY PUBLIC LIBRARY 3 1833 02439 1739
Digitized by the Internet Archive in 2016
https://archive.org/details/benchbaroftexas00lync_0
840
THE
BENCH AND BAR
OF
TEXAS.
BY
WATLAV THE PUBLIC ESERA OF
JAMES D. LYNCH,
CALLENUCO.
Author of " Heroes of the South," " Kuklux Tribunal," " Clock of Destiny," " Kemper County Vindicated," " The Bench and Bar of Mississippi."
1
'Tis not in mortals to command success, but We'll do more, Sempronius, we'll deserve it. -ADDISON'S CATO.
PUBLISHED BY THE AUTHOR.
ST. LOUIS : NIXON-JONES PRINTING CO. 1885.
840
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LAS CIVA HOWHE
THE ORBFIC TIBEVEX
BOUL MVAME F VITEK CO" INDY
BAZAT
C BHMAT
.2881
IVOCATION
1746071
Entered according to Act of Congress, in the year 1885, by JAMES D. LYNCHI, In the office of the Librarian of Congress, at Washington.
Dave
Nicon-Jones Printing Co., 210 and 212 Pine Street, St. Louis, Mo.
TAIPOST
INVOCATION.
ON BEING PRESENTED WITH A SWAN'S QUILL
Quill, that through the classic ages Glided o'er the polished pages, Moulding golden gems of song Which the years have borne along, Shedding pearly drops of rhyme All along the path of time, Lighting it with sparks that rose From the mind in song and prose, Long before the pointed steel Painted human woe or weal - Come thou now, O faithful feather! Bind my wayward thoughts together, Smooth the roughness of my page In this harsh and steely age; Let new light upon it dawn, And the music of the Swan - That death-chanting bird that bore thee, Swell its soothing strains around me, Through my rugged rhythms trill, Lured by thy soft charm, O Quill! And may knowledge from thy point Trickle, and its streams anoint My scrubby growth of word and thought, In its deep mysteries untaught - Save so much as to make me feel How little it doth yet reveal. Leave upon my page some trace Of good that Time can not erase, Some thought not yet to mortals given, Some new idea yet unriven From the mind, some gleam of love, Lighting, lifting man above.
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PREFACE.
Biography is the anatomy of history. History tells us of man, biography, of men. But men do not know themselves, and how can others know them? To know one's self would be to know everything. All the branches of knowledge have their origin in the science of being, and, like meteors, flash along its firmament and lose themselves in its illim- itable expanse ; and for the mind to attempt to fathom itself is the mad butt of thought against the inconceivable - the push of airy nothing against infinity.
Metaphysics, which the Scotch Highlander defined to be " when a man dinna know what another man says, and the other man dinna know what himself says," is the most in- comprehensible of all sciences, and biography is conceded to be the most difficult field of literature; for the reason that there are so many uninterpretable elements in the com- position of mind and character that no one but the Creator himself knows the texture and coloring matter of human thought and the hinging springs of human action. Yet, biography is the most important of all studies, and of all the species of writing, the most worthy to be cultivated.
History, with its monotonous compendium of facts, re- garding national progress, either in polity or science, ceases to satisfy the curiosity and spirit of research, which in this age seek the causes and agencies of achievement rather than the mere statistics of event; and to supply the wants of intellectual progress, it must weave into the dry leaves of fact a personal impression, and the varied colors of individuality.
" Histories," says Lord Bacon, "set forth rather the pomp of business than its true and inward resorts. But the lives of eminent men, if they be well written. repre- senting individual achievement in the various spheres of
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PREFACE.
life, in which actions, both great and small, public and private, have a commixture, mast necessarily contain a more true, natural and lively representation."
Subsidiary to this universal desire to know the means and traits of character by which individual eminence is attained, they furnish incentives to emulation - examples of the pos- sibilities of merit, by which its qualities can be ascertained and measured, and the calculus of success eliminated; and this knowledge is a debt which every person who has attained eminence owes to his fellow-man. All biographies should be written that can impress the rising and future genera- tions with the rewards of merit and the value of exertion, and which shed light upon the path of effort. But none should be written which do not make us think better of their subjects than before, and the sentiment nil de mortuis . nisi bonum, is applicable to the living as well as to the dead.
The author has been engaged nearly one year in the pre- paration of this work, but several months of that time were devoted chiefly to procuring sufficient encouragement to justify the undertaking ; and if Plutarch deemed it neces- sary to reside forty years at Rome in order to prepare him- self to write the lives of its eminent citizens, surely the author can claim, under cover of the disparity of circum- stances, immunity from any severe animadversion upon his shortcomings.
The object of this work is to present to the world, and especially to the rising and future generations of Texas, a history of the eminent judges and lawyers who have built up and elevated the jurisprudence of the State: to preserve their memories and characters, to set forth the methods and measures of their success as examples and incentives to those who are to follow in their footsteps, and to show them how much can be achieved by energy, uprightness and skill.
In selecting his subjects the author has occupied neutral ground. He has had no prejudices to subserve. no prefer- ences to promote, and no ties of obligation to draw him from the path of his own judgment. He has stood as Lord Coke
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PREFACE.
says a juror should stand " as indifferent as he stands un- sworn." He has had no partiality for political distinction ; for that is sometimes the least exemplary of all prominence ; nor have those selected for subjects had any agency what- ever in the matter. The selections were carefully made by the author, without constraint or influence, in conformity with the design of the work. He has been guided chiefly by the beams of eminence which flash from the judicial records of the State.
It is true that persons in Texas, as elsewhere, have held high positions, who never ought to have held them; for the reason that they possessed no qualifications which en- titled them to such superficial marks of distinction over many others, often superior to them in merit, but less fer- tile in the methods of obtaining preferment. With such the author has no concern ; nor does this work profess to make mention of every good judge and skillful lawyer. The Texas bar will bear favorable comparison with any in the Union ; and there have been, and are now, many gentlemen in the State, whose professional qualities and characters are full worthy of the most meritorious mention in any work ; but it has been the design of the author to embrace in this volume only those whose professional careers have been characterized by an established eminence, achieved by long and successful practice, and which have made marked im- pression upon Texas jurisprudence, and if any of these have been omitted it is not the author's fault. Coming to Texas an entire stranger, with no acquaintance with its jurisprudence, or with the customs of the country, the author undertook a difficult task ; but he has been constantly encouraged by the most polished courtesy and kindness on the part of all with whom he has come in contact; and to that kind-hearted and magnanimous gentleman, Maj. J. T. Brackenridge, of the First National Bank of Austin, he is particularly indebted for financial favors which greatly aided him in the preparation of the work.
In the execution of his task he has found it difficult in many instances to obtain the data necessary to enable him to accomplish the object of the work, and the metaphysical
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PREFACE.
poverty of language has often occasioned him perplexity in finding terms to express the multifarious features and varied shades of character. He would have included other de- ceased lawyers of the Republic and State, could he have obtained sufficient information in regard to them. But the corroding finger of time has already dimmed the records of their greatness and stilled the hearts upon whose tablets their virtues were inscribed, leaving only, here and there, a glimmer of those lights whose brilliancy kindled the rising glory of the State.
With these inscriptions he feathers its wings and commits it to the flight of its destiny, and if it should return with the olive branch of favor, the author will be glad; but if it should be lost in the crypts of wasted effort, he will still be contented with the memorial of its conscientious mission.
JAMES D. LYNCH.
CONTENTS. 1
--
CHAPTER I.
INTRODUCTION.
. Genius - Its source -- Its universal application - The certainty of
PAGE. its assertion - The law, its peculiar sphere - Fame the meed of genius - The common law a protitic school of fame . . 13-18
CHAPTER II.
A view of the laws and institutions of the Mexican State of Coa- huila and Texas -1824-1835 . . 19-25
CHAPTER III.
Origin of Texas jurisprudence - The judicial ordinances of the Consultation and Provisional Government -- The judiciary system of the Texan Republic - Introduction of the common law and the civil code of Louisiana - Observations - Legislative modifica- tions - 1835-1845 . 26-33
CHAPTER IV.
Organization of the State government - Its judiciary establish- ment-Its blended system of jurisprudence - Common law, civil law, and equity - Peculiarity of its land laws - Marital rights - Rules of inheritance - Homestead and exemption laws - Its liberal educational system - Beneficence of Texas jurisprudence - 1845-1885 . 34-62
.
CHAPTER V.
The bench of the Republic and State - Eminent jurists, deceased : James T. Collinsworth - Thomas J. Rusk - John Hemphill - Anderson Hutchinson - Richard Morris -Wm. B. Ochiltree - Abner S. Lipscomb - Royal T. Wheeler - George F. Moore - A. J. Hamilton - Lemuel D. Evans - Peter W. Gray - M. HI. Bonner - S. P. Donley - Thomas H. Duval - Amos Morrill - M. D. Ector - C. M. Winkler - Benjamin C. Franklin - Rich- ardson A. Scurry - William S. Todd . 63-184
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CONTENTS.
CHAPTER VI.
PAGE.
The bar of the Republic and State -- Eminent lawyers, deceased : J. Pinckney Henderson - R. M. Williamson - Wm. H. Jack - James Webb - Ebenezer Allen - James Willie - O. C. Hartley - Thomas H. Jennings - John A. Wharton - James W. Dallam - Elisha M. Pease - Wm. S. Oldham - H. P. Brewster - Thomas M. Jack 185-272
CHAPTER VII.
-
The State bench - Eminent living judges: Oran M. Roberts - Richard Coke - James H. Bell - Asa H. Willie - Thomas J. De- vine- John Ireland - Robert S. Gould - John W. Stayton - Charles S. West - Richard S. Walker - John P. White - Samuel A. Willson - James M. Hurt - A. S. Walker - George Clark - A. T. Watts - W. S. Delaney - E. B. Turner . 273-366
CHAPTER VIII.
The State bar - Eminent living lawyers : John W. Harris -James E. Sheppard - Frank Sexton - John H. Reagan - W. P. Ballin- ger-J. W. Throckmorton - John Hancock -John Sayles - N. G. Shelly - Richard B. Hubbard - Thomas N. Waul - A. J. Peeler - Jacob Waelder- Wm. M. Walton - A. W. Terrell - George Goldthwaite - N. W. Battle - M. D. Herring - Charles Stewart -- Alexander White - J. M. Anderson - Thomas Harri- son - W. S. Herndon . 367-532
CHAPTER IX.
Legislative data - The constitution of Coahuila and Texas - The Texas declaration of independence - Constitution of the Texan Republic - Articles of annexation . 533-605
CHAPTER X.
Judicial data
. . 606-608
LIST OF ILLUSTRATIONS.
FACES PAGE
M. H. BONNER, portrait of
116
E. M. PEASE, portrait of
221
AMOS MORRILL, portrait of
151
JOHN IRELAND, portrait of .
306
J. W. HARRIS, portrait of
367
T. N. WAUL, portrait of
404
N. W. BATTLE, portrait of .
505
M. D. HERRING, portrait of
510
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THE BENCH AND BAR OF TEXAS.
CHAPTER I.
---
INTRODUCTION.
GENIUS - ITS SOURCE - ITS UNIVERSAL APPLICATION -ITS VARIED MANI- FESTATIONS - THE CERTAINTY OF ITS ASSERTION - THE LAW ITS PECULIAR SPHERE - FAME THE MEED OF GENIUS -THE COMMON LAW A PROLIFIC SCHOOL OF FAME.
The definition of that intuitive principle or subtle quality of the mind, which we call genius, has never yet been formulated ; at least, it has never received an intelligent interpretation among men. Its source lies concealed in the unexplored recesses of human nature; nor is its presence known until, awakened by the touch of opportunity, it bursts from its gyves, and flashes upon the world with a light that illuminates the extending scope of its own vision.
But whatever may be the abstract nature of genius, its qualities are readily recognized and its manifestations easily judged. Its course is upward and onward, and its flight is bounded by no definable horizon, while its zenith is hidden somewhere in the realms of eternal and untar- nished light.
The application of genius is universal, and it has kindled its beacons along the highway of every sphere of life, penetrated the occult depths and obscure labyrinths of every science, and illumined a path for the advancement of every art. It is, indeed, the assignable coefficient of all enterprise and the multiplicative exponent of all progress.
Nor is genius to be measured by its means of appliance. It perhaps required as much genius in Adam and Eve to
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BENCH AND BAR OF TEXAS.
patch their fig-leaf aprous as in the manufacture of the finest fabric of modern art, and as much in Noah to fit the timbers of the ark as in the construction of the proudest vessel that plows the waves of the western world. But from the summit of Ararat it winged its way with new- fledged pinions until it rested in triumph upon the pinnacle of Solomon's Tempie, whence it gave sanctified utterance to the tongue of prophecy, and guided the pen of inspira- tion along the pages of Holy Writ. Yet, while the hand of genius was hewing and fashioning the pines of Lebanon into the columns of the great temple, with uplifted eyes it gazed into the starry canopy of heaven, caught the first glimpse of the star of Christianity, and, like a sentinel on the watch-tower, heralded every gleam of knowledge that flashed across its vision ; and thence, with increased glow, it illuminated the pages of Grecian and Roman literature, and evoked those sparkling gems of thought whose corrus- cations will dazzle the eyes of the intellectual world to the end of remotest time.
But in conformity with the vicissitudes of all human grandeur, the eyes of genius were at length closed by the cold finger of Fate; and, hurled by the hand of barbarism from the Tarpeian rock, it lay for ages hidden beneath the wreck and ruins of the Roman Empire ; yet the spark glowed on until it slowly arose from the smouldering ashes, burst through the pall of the dark ages, and rekindled its blaze in the revival of learning.
Yet, while the true course of genius is upward, it is not always subordinated to the good of mankind, but is often perverted and prostituted to unhallowed purposes by the wayward passions that flourish in its train. While with pious sweat it could carve the lofty architraves and rear the temple of Jehovah, it could with sacreligious hand heave the huge rocks, and pile them upon the Tower of Babel, with mad desire to invade the very chambers of the Al- mighty. While it strung the pastoral lyre and tuned the shepherd's reed, it gave power to the destructive engines of Archimedes, and the fatal twang to the archer's bow ; and though it glowed in the natural laws of Kepler and the
15
INTRODUCTION.
civil code of Justinian, flashed through the glasses of Galileo, and illuminated the hallowed visions of Luther, it also glittered in the crown of Alexander, burnished the helmet of Cæsar, and flamed in the sword of Bonaparte.
But whatever may be its mode of indication; whether it sparkles in the eye of the astronomer, smiles upon the lips of the minstrel, frowns upon the brow of the misanthrope, decks the finger of the artisan, or emblazons the sword of the conqueror, the characteristics of genius are the same. It is only the purposes to which it is devoted, the motives by which it is guided, and the brilliancy of its manifesta- tions, that give to it any variety of character; and these are as varied as the channels of human thought, the fires of human passions, and the spheres of human action. It is the same principle that gives inspiration to the poet, conception of beauty to the artist, brilliancy of argument to the advocate, a lucid discernment to the judge, religious fervor to the devotee, and ingenuity to the midnight bur- glar and the common swindler. But in whatever direction its prowess may be exerted, its qualities are soon mani- fested.
A man of genius is sure to assert his superiority in whatever walk of life he may direct his course, and whether it be for the good, or to the detriment of society, depends upon the passions by which it is actuated. " Such men," says Lord Bolingbroke, speaking of superior spirits in elevated positions, " either appear like ministers of divine vengeance, and their course through the world is marked by desolation and oppression, by poverty and servitude ; or they are the guardian angels of the country they inhabit, busy to avert even the most distant evil, and to maintain or to procure peace, plenty, and the greatest of all human blessings, liberty."
But however certain may be the development of genius, its conspicuity is often governed by circumstances, and frequently trammeled by the presence of other and incom- patible qualities. Chief among these is timidity-a lack of courage sufficient to command upon all occasions the full
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BENCH AND BAR OF TEXAS.
and clear exercise of the faculties, and to lay hold with proper alacrity and vigor upon great and rare opportu- nities.
It was from this cause that Cicero failed in his defense of Milo. He did not have the courage to display his usual and natural eloquence in the face of prejudice and under the frown of power; and Lord Erskine, through his.reluc- tance to encounter Mr. Pitt and Edmund Burke, lost the great opportunity of his life in declining the defense of Warren Hastings ; while, on the other hand, Lord Brougham wreathed his brow with immortal glory by his bold defense of the unfortunate Queen Caroline, in the face of courtly clamor and kingly opposition.
Genius is often marred by passion and prejudice. If it would retain its lustre, though clothed in the tinsel of eloquence, its lips must be rouged with the carmine of kindness and complacency. The angry invectives of Achilles gained him no sympathy, while the soothing eloquence of Nestor swayed the minds of the Grecian host. It is true that a judicious appeal ad hominem sometimes produces a wonderful effect, as in the first oration against Catiline ; but the eloquence of genius rarely distills from the pale lips of anger. The furious accusations of Tertullus pro- duced no formidable effect; but we are told that when Paul reasoned, the court trembled; and Lord Coke greatly impaired his efficiency, and injured himself in the eyes of posterity, by his virulence on the trial of Sir Walter Raleigh when he condescended to thou him as a viper and traitor.1
Of all the schools of science, there is no one so prolific of the fruits of genius as that of the law. There is no sphere
1 When all argument failed him, Coke, then Attorney General, poured a torrent of abusive epithets upon the noble prisoner, and applied to him the term thou : "Thou hast an English face and a Spanish heart, thou traitor ; for I thou thee, thou viper." A reference is made to this signifi- cation of thou in Twelfth Night, when Sir Toby Belch, in urging Sir Andrew Aguecheek to send a sufficiently provocative challenge to Viola, suggests : "If thou thou'st him some thrice, it shall not be amiss."
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INTRODUCTION.
in life which presents so many necessities and motives for its exercise, and such a vast field for its development, as that of a lawyer. His constant intercourse with all sorts and conditions of men, and his frequent dealings with all the multiplied concerns of life, render him familiar with human nature, with all the workings of the human heart : its virtues and its vices, its strength and weakness, and the varied manifestations of its passions; and he necessarily becomes an expert in all the motives and a detective of all the springs of human action.
The wide scope of his learning, the confidence reposed in his honor and integrity, his tutored conservatism, and usual freedom from the virulence of party and the malignancy of faction, constitute for the upright lawyer a just claim to be a leader of his fellow-men ; and when to this broad field of knowledge he brings the rare gift of genius, it, at once, places him in the line of distinction, and, with the aid of other and usually concomitant virtues, raises him, sooner or later, to a proud eminence of superiority, and procures for him a just title to the fee of fame.
But while the bar offers the most illimitable scope for its exercise, it is the severest test, and most precise and exact- ing of all the measures of genius. It permits no successful charlatanism, no ephemera of superficiality and pretension, but subjects every candidate for superiority, every claimant to the quality of excellence, to a just and infallible esti- mation.
A title to fame acquired under the eye of such close, competent, and penetrating scrutiny, amid such exacting circumstances, and under such a nice adjustment of qualiti- cations, is surely of an exalted character, and worthy of the highest admiration of mankind. Such fame is not of that kind which Pope would have us to believe to be a temple of ice melting away with each returning sun; nor is it a mere second life upon the breath of others, or post- humous inheritance founded upon custom or arbitrary rules of descent ; nor does its tenure depend upon any uncertain fine. It is the most certain and enduring of all earthly possessions, the ultima thule of human attainment. the
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BENCH AND BAR OF TEXAS.
crowning glory of pre-eminent virtue, the meed of an im- mortal name. No ;
Say not to me such greatness ever dies, Or Lethe's waves can over virtue roll ; For glory has its realms beyond the skies, And there it copies off its earthly scroll, There sets its music to celestial chime ; And when its bright and proud historic page
No longer flutters to the breeze of time,
Beyond the reach of man's invidious rage,
Its shafts will rise where time knows neither youth nor age.
The vast and intricate system of common-law juris- prudence, with its comprehensive doctrines, its nice shades, subtle distinctions, and unlimited application, has been from time immemorial a fertile field of fame. It is there that we find those brilliant precedents of eminence, those illustrious examples of true greatness, which have afforded marks and models for the aspiration of every country, and of every age since the days of Runnymede.
It is there that ambition may revel among the most gor- geous pictures of glory ; where genius can find an unlimited scope for the exercise of its utmost powers ; where freedom may find shelter from the pelting storms of oppression ; where the statesman can gather material for the fabric for the wisest government, and the patriot may clothe himself in more than Vulcanian armor for the defense of the liberty and honor of his country.
It was in this field that Coke and Hardwicke, Mansfield, Eldon, and Burke, and a host of others no less renowned, erected their monuments of eternal glory. Notwithstand- ing the difficulties of the way, the height and ruggedness of the ascent, there is no sphere in life where so many hands are beckoning from the lofty eminence, and where so many footprints lead to the summit, as the law. Nor are these confined to the steps of the Inner Temple, or to England's soil, but up the same pathway, and to a no less degree of eminence, ascended our. Marshalls, Storys, Taneys, Kents, Hemphills, Robertses, and others to whom it will be no disparagement to add, to a less degree.
CHAPTER II.
A VIEW OF THE LAWS AND ADMINISTRATION OF JUSTICE OF THE MEXI- CAN STATE OF COAHUILA AND TEXAS-1824-1835.
It was not at first view deemed essential to the design of this work to extend its province and locate its beginning so remote from the present status of Texas jurisprudence as to embrace a notice of the Spanish-Mexican institutions which obtained in the State of Coahuila and Texas, but as they were found lurking among the elements of the judi -- ciary system of the Texas Republic, and still clinging by analogy, at least, to tenures, marital rights and laws of in- heritance, it was thought best to notice them so far as they are qualified to shed light upon the origin of Texas juris- prudence.
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