USA > Texas > Governors who have been, and other public men of Texas > Part 11
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(heathen) poets, just stick to the law and the facts." Judge Chilton "stuck" thenceforth.
It came to pass after Governor Hogg became a member of the bar at Houston that I was called upon to try a case in which he was made defendant. The action was in the nature of one to impress a trust upon certain lands in favor of the plaintiff-or in the alternative to recover damages in a large amount.
The original petition set the damages at, I believe, $3,000,000, but as the land lay near Beaumont and was, of course, supposed to be underlaid with rivers of oil, a lawyer who at that time dropped the figures in his allegation of damages below a million, was ridiculed as a "piker."
There were, of course, allegations of fraud and deception made against Governor Hogg, and the case was one of that character where one tale was good until the other was told, and the very respectable and capable counsel who filed the suit were entirely justified in doing so, on the faith of their client's version of the dealings between him and Governor Hogg. One of the ablest lawyers ever at the bar of Texas, who was a political and personal friend of Governor Hogg, was employed before the case came to trial, and he revised the pleadings and reduced the amount of damages asked to $66,000. Governor Hogg appeared for himself, but supported by quite an array of able lawyers.
It took nine days to try the case, and the result was a verdict for defendant, as it should have been. While I believe the plain- tiff honestly thought he had been defrauded, he was not an educated man nor overly bright, and Governor Hogg had not only not defrauded him, but had tried to befriend him, and when the facts were fully sifted out and the truth revealed, not even the faintest odor of fraud attached to Governor Hogg's action.
I recall that the charge was a very difficult one to write, as the issues as plead were complicated, and I expected a motion for a new trial to be filed, alleging error in every paragraph of the charge. When the time for filing motion was about to expire, I asked the counsel who had been called into the case, if he was going to file a motion for a new trial. He replied promptly and with decided emphasis: "I am not. My case has been submitted under a charge to which there could be no objection, twelve men have found against me, and I am done." There is no truer or safer test of legal ability than the capacity to know when not to appeal, especially on the part of the plaintiff. A lawyer gen- erally knows when not to appeal. The mere attorney never knows until the appellate court points out why he had no case, or no ground of appeal.
After the case was over some friend asked me if I heard what Governor Hogg said about me in the course of his argument. I replied I did not. It seems he said in effect, that the court was
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personally unfriendly to him, and he had to look to the jury for justice. The case was tried before the statute passed as a con- cession to judicial stupidity was enacted, requiring the charge to be delivered before the argument, but not till court and counsel have wrangled over every paragraph.
My attention was absorbed in writing the charge, and I did not hear what Governor Hogg said, but even if I had, I likely would neither have fined him nor reprimanded him, but would have par- doned the remark to his natural zeal in defending himself against charges involving his honor.
Besides, since I did not cherish the slightest personal ill will against him, and I was conscious that in the fear of God I was try- ing to "execute justice and maintain truth," I could have afforded to, and would have ignored the statement had I heard it. Had I been his bitter foe, the only way I was likely to have been in- fluenced as regarded him, was that I might, out of fear of lean- ing against him, have unconsciously leaned toward him. He won, as he ought to have done, and I was, and am glad he did.
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CHAPTER XVII.
I stated a few pages back that the only opponent who offered for the nomination for Governor against Governor Hogg in 1890 was Gustave Cook of Harris County, and any story of the public men of Texas which did not include Gustave Cook would be like the tragedy of Hamlet with the melancholy Dane omitted from the cast. He was strictly sui generis. He had neither precedent or model. He was a bundle of inconsistencies and contradictions, but nevertheless through his mental and moral makeup there ran a thread of pure gold.
He joined the famous regiment, the fighting Paladins of Ben- jamin Franklin Terry, which came to be known as Terry's Ran- gers, and when the war closed, was, as I recollect, its Colonel. He said to me once: "I never could understand why it was that I couldn't go through a battle without getting in the way of a Yankee bullet. I was no braver than anybody else, but d-d if they didn't hit me every time I went in. When we got to Ben- tonville, North Carolina, with Joe Johnston, we didn't know General Lee had surrendered, so we lit into the first bunch of Yankees we saw, and they shot me pretty near through, and fif- teen years afterwards I had to have the bullet cut out from under my shoulder blade." He was an authority on race horses, their blood and ancestry and pedigrees, yet never bet a dollar.
He was an earnest, eloquent anti-prohibitionist, but never took a drink. He swore like "our army in Flanders," perfectly uncon- scious that he was doing so, yet he believed profoundly in the fundamentals of the Christian faith, and was able to, and did, on the platform, defend it with persuasive logic and thrilling elo- quence.
On the bench he was in one moment the very impersonation of judicial dignity and sternness, the next moment would let out some original remark that would bring a smile to the face of a mummy.
His heart was tender, his friendship strong, yet I have seen him try a murder case in which the defendant was bound to him by ties as close as was possible not to be within the prohibited degrees, and he never leaned or wavered the millionth of a mental inch from the perpendicular of judicial impartiality.
He was elected to the Legislature in Harris County in 1872 and had for an opponent a negro named Dick Allen. I said: "Colonel, you will have to observe the courtesy established by long custom and vote for your opponent." He said: "I'll be d-d if I do. I have been telling these people that no 'nigger' had any business in the Legislature, and I am not going to stultify myself to conform to any kind of custom. I am going to vote for Gus Cook."
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His colleague, elected at the same time, was Dr. Ehrich F. Schmidt, a German druggist, and most estimable man. Both men were in the heyday and prime of a splendid manhood, and I recall them as the two handsomest men I have ever seen in my life, one a brunette, the other a blonde.
Judge Cook was for many years Judge of the Criminal District Court of Harris and Galveston Counties, and I several times ex- changed with him. He said, "I like to go to the country where I can eat hen aigs and swap lies with the boys." He could con- dense the law of any kind of a criminal case correctly into briefer compass than any man I ever knew. He was as honest and as fearless as Saul of Tarsus.
The popular clamor had no more effect upon him than did the sighing of the winds. He was genial and courteous to everybody, but toadied to no man. The rich man was no more in his sight than his poorer neighbor, if the latter was worthy of respect. He was going to court one morning and a man stopped him who was rich and by reason of that fact, was somewhat of a king among his kind, which kind was not of Judge Cook's class. The man said: "Judge Cook, the people of this county are getting mighty tired of the way the Criminal Court is run. There are too many continuances and too much expense." The Judge said: "Is that so? And they have sent you to tell me about it as I un- derstand." "Yes, sir," the man said, "and I have done it." The Judge looked at him for a moment with an expression of con- temptuous scorn and said: "Well, you tell the people for me that the next time they send anybody to tell me how to conduct my court, to send a gentleman and not a d-d pot-bellied scrub like you are."
The messenger grew wrathy at once, and said: "You can't talk to me that way, sir; I won't stand it." The Judge said: "Now you are a d -- d liar, for I have already talked to you that way, and you have stood it, and are going to stand it," whereupon he coolly strolled off down the street, leaving the messenger of the people boiling with wrath, but with prudence enough to say no more.
He could do things in the court house at one time that would touch the deepest emotions, and the next time violate all prece- dents.
I chanced to be in the criminal court room at Galveston one day when he was passing sentence on a negro youth who had been con- victed of theft. He said: "I am ashamed to see you here. On the wall of my home there is a picture of your mammy with two of my children in her lap, and God never made a better woman than she was. She raised you right, and I am glad she is dead so she will not see you where you are now. Here, Mr. Sheriff, take this money and buy this boy such knick-knacks or comforts
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as he may need," at the same time putting a lot of money in the sheriff's hands.
At a term of the court in Houston the District Attorney who always read or recited an indictment with much impressment got down to the charging part of one, and it revealed that the de- fendant was accused of stealing a watermelon. The Judge said: "Mr. District Attorney, where is the defendant?" "He is sitting there just in front of your honor's stand." The Judge leaned slightly over, but the heavy cornice and carving of the elaborate Judge's stand concealed the defendant from his view, until he pressed his corpulent form against the inner edge and leaned further, when he saw a little woolly headed negro boy about 10 or 12 years old. Raising up, he said: "Tut, tut, Mr. District At- torney, this won't do. You are trespassing upon the constitu- tional rights of a citizen. Any 'nigger' boy of that age has the constitutional right to steal a watermelon and it ain't right to worry the court with it. Gentlemen, return a verdict of not guilty." And they did.
In every city there are always to be found among the legal habitues of the criminal court room some very shady "shysters." One day the District Attorney was endeavoring to identfy a lot of gold rings and chains found in the possession of the defend- ant, whose counsel were handling the part of the jewelry lying on the counsel table. The Judge called the sheriff to him, and bending his lips close to the officer's ear, said: "Watch that jewelry. It is in more danger now than it ever was before."
I saw him tested once as few judges have been tested. It was when I had not practiced law long, assisting, if what I did could be called assistance, an older and very able lawyer defend the brother of a friend of mine for alleged murder. The District Attorney, though always fair, was very strong, and the private prosecution was very vigorous.
The deceased, while he was a printer at the case, as was the defendant, had relatives of high social and professional standing, and the issue was doubtful. There was but one objection re- ferred to the Judge during the trial and he resolved that against the defendant, and if there was any leaning or bias at all in his admirable charge, it was in favor of the State.
After the jury had retired I walked up to the Judge's stand, and he said: "Norman, this has been one hell of a case." Much astounded, I said: "Why Judge, I never saw a case more smoothly tried. We have had no contention over any question." "Oh," he said, "I don't mean what I say in that way. I wouldn't have cared anything about that, but I raised that boy sitting there," pointing to the defendant. "His mother's yard and mine joined in Richmond. He played with my children. He ate at my table, he slept on my beds, he sat on my knee, and no man
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ought to be compelled to go through the ordeal I have gone through."
Under those circumstances no man connected with the trial even suspected that he had ever seen the defendant before in his life. No Judge could ever have been more absolutely impartial, though, as I discovered a few minutes later, his heart was full, almost to bursting.
I said: "Judge, let's walk down to the corner and get some lunch." He agreed. Before we had gone very far a deputy sher- iff overtook us, and said the Judge was needed in the court room as the jury had reached a verdict. We returned and he took his seat and asked the jury if they had reached a verdict. The foreman said: "We have, sir." The verdict was one of ac- quittal. The Judge said: "Gentlemen of the jnry, you are dis- charged with the thanks of the court. You have proven that you intend to uphold the law and administer justice in this com- munity," and at once left the bench and walked rapidly to the door of the court room. Tears were rolling down his cheecks, and as he drew near to the District Attorney, who had started out of the room ahead of him, he cried out in a voice broken almost into sobs, "Frank, by g-d, they cleared him."
I asked him later what he would have done had the verdict been one of conviction. His answer was prompt and em- phatic. "I would have given him a new trial in fifteen min- utes." The verdict was right. I have had many jurors be- fore me in murder cases, but so far as I recall, I never have seen any jury which, taken all in all, was composed of twelve men of as high character and as superior in order of intelligence as were those who tried that case. The defendant himself was but little if any happier than was the Judge. Only a man who has a heart, and has been placed in such a position can appreciate how trying an ordeal "Gus" Cook endured that day.
In that very court room where his emotions moved others to tears, he had laid before him one day an application for con- tinuance in a case. The attorney was generally reputed to keep a supply on hand to meet most any emergency. The Judge turned page after page until he reached about the tenth, when he folded up the motion and said: "Mr. Clerk, enter a contin- uance. It will take the rest of the term to read this motion."
He had the faculty in conversation or on the platform of blend- ing the comic and the serious, or putting them into that juxtapo- sition which creates humor. I heard him in the course of an ad- dress at a gathering of Confederate veterans one day pay a trib- ute to Jefferson Davis which, in point of chaste oratorical beauty, no man could have excelled. There was a sentence in it that I felt that it was impossible that it could have been the fruit of im- pulse or sudden inspiration, put forth "impromptu," and I asked
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him about it. He said: "Why, I laid on the floor and groaned like a woman in travail shaping that sentence to suit me," and I am sure he told the truth. It was worth the toil, yet it sounded as if it came forth spontaneously, fresh-coined from the mint of his wonderful mind.
He sometimes, as a courtesy, or to help some deserving charity, delivered a lecture on the theme, "Simon-Sometimes Called Peter." I do not believe he ever delivered it for pay, because he cared no more about money, or knew no more how to make it, or take care of it, than did an infant in arms. The lecture was a marvel of humor and seriousness, fun and solemnity. I re- member he said: "And Peter's wife's mother lay sick of a fever but she rose and ministered unto them. If one of these modern day of mothers-in-law had been Peter's mother-in-law she would have had Peter making a fire and fixing the coffee, and skin- ning around the back yard over chunks of wood and wheel- barrows and old stove legs trying to catch a yellow-legged chicken. The word 'Peter,' you know, comes from the Greek Petron, a stone, and in French, it is Pierre, so when you work it out to the end we are led to the conclusion that Peter was 'a brick.'" Immediately after such quaint conceptions as those quoted, he would rise to heights of eloquence that stirred and thrilled.
When the I. & G. N. Railway was first built a very wealthy man in New York was a large stockholder in it, perhaps was its presi- dent-a station on it is named for him. He was a very religious man, and a liberal philanthropist. Outwardly at least, he car- ried his religion into his railroad business, by having framed and hung in the stations along the line, scripture texts. The road was begun before the reconstruction period was over, and the carpet- baggers were robbing the South, unrestrained. In one of the depots the text was, "Thy gold and thy silver are mine." It caught Judge Cook's eye at once and he said: "You are d-d near right. You have got most all we had, and are getting the balance."
It should not be inferred from what I have said about Gustave Cook that he was gifted with eloquence, wit and humor, but not dowered with a sustained power of reasoning, for such infer- ence would be most erroneous.
He was capable of presenting a legal argument in a civil case, with great force and clearness, for in addition to being thoroughly grounded in the principles of law, he had an unusual command of language, and clothed his ideas in faultless English, and could embellish an argument with metaphor and pointed illustration, without lessening its strength. He made before me on one oc- casion, one of the most clear-cut and forcible arguments on the
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constitutionality of a statute relating to contested elections I ever heard.
Able lawyer, just and brave judge, chivalrous, gallant soldier, genial companion, faithful friend, tender and devoted father, may his rest be peace in the bosom of the State he loved so deeply and served so faithfully.
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CHAPTER XVIII.
In 1894 there was a very spirited contest for the Democratic nomination for Governor. John H. Reagan, S. W. T. Lanham and Chas. A. Culberson were, as I recall, the contenders for the prize.
The convention met in Dallas, and Judge Reagan and Attorney General Culberson were the leading candidates. On personal grounds, which are very persuasive with me, my sympathies were with Colonel Lanham, though I had sincere admiration for the brilliancy and solid ability of Mr. Culberson, and profound reverence and respect for Judge Reagan, than whom no state ever had a more capable or more faithful public servant. He was, I think, twice district judge, and I believe was twice elected to Congress. One of his contests was with Lemuel Dale Evans and I have heard it was very heated, and that the race was very close.
I know Judge Reagan was in Congress in 1860, because my father visited Washington that year, and I have heard him re- peat what Judge Reagan told him about the dangerous tension which political feeling had reached between Northern and South- ern Congressmen. Judge Reagan said personal conflicts were imminent all the time, and said to my father: "Doctor, if one shot had been fired, this hall of Representatives would have been a slaughter pen."
Lemuel Dale Evans was a man of considerable ability-indeed, above the average, but is conception of fidelity to the South must have differed very widely from that of Judge Reagan, as he was presiding Judge of the Supreme Court of Texas in 1870-71. He must have been appointed by Edmund J. Davis, hence could not have been of Judge Reagan's way of thinking.
Judge Reagan came to Texas at a very early day, only a few years after the Battle of San Jacinto, when he was about 21 years of age, as he was born, as I recall, in 1818. It was delightful to hear him relate his reminiscences of the early days. He told me that he never played poker but once, and as far as he re- called never was drunk but once.
He was a deputy surveyor and traveled over a large territory. On one occasion he went to Fort Worth, or to where Fort Worth now stands, but there was nothing there then but a government frontier post. The crowd got to drinking mustang grape wine, which I have heard was calculated to upset even the most hard- ened toper. Next followed poker. The old Judge said he never had known much about poker, but sat in to be sociable, and the next thing he distinctly recalled, he was waking up and his pockets were full of money; the pile being about $400. He said he couldn't account for it, as he really knew very little about
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the game. It must be assumed he had the proverbial luck of the greenhorn. That was his first and last spree of the kind.
He said on one occasion a colony or tribe of Indians which had pitched its tents near Palestine, got obstreperous and the settlers had to send to Houston to get Sam Houston to come and pacify them, as nobody else could do anything with them. He was President of the Republic and quite a numbr of his staff came with him, and the party was joined on the route by one John I. Burton, who was quite a wag, and otherwise an original character. The President had not at that time forsaken the habit of indulgence in strong drink, which he did later in life under the influence of his devoted wife, and when he got to the camp- ing place, near Tennessee Colony, was just recovering from what the boys sometimes call a "jamboree."
He at once sought his tent to get some sleep, and quiet his nerves and straighten up. The settlers who comprised, or com- posed, the Tennessee Colony had brought along a small number of brass instruments from Tennessee-enough for the beginning instruments of a brass band, and the performers were eager to display their musical skill (?).
John I. Burton went to the band boys and said: "Would you like to give the President a serenade? He is very fond of music." The boys felt honored, so they armed themselves with their trom- bones and other horns, and Burton guided them to a position just behind the President's tent. Every nerve of the President was out of tune, and even the chirp of a cricket, or the hoot of an owl sounded as if it had been magnified by a microphone; and he yearned to fall off into a deep sleep.
Just as it looked as if "balmy sleep, tired nature's sweet re- storer" was about to exert her dominion, the Colony band broke loose on the opening notes of "Hail Columbia," which tune begins with no soothing, dreamy melody, but its first note is full grown. The President rose and came out in the night, the very personifi- cation of rage, and the band struck for the thickest part of the woods. He soon learned that Burton was responsible for the trick, and Burton did not return to camp for three days. What the President said no doubt made hot reading on the ledger of mor- tal accounts.
The Judge upheld the majesty of the judicial office, and al- lowed no trifling with it.
My father used to tell of one occasion upon which an old countryman got the best of the Judge. When I was a boy I used to wade and fish in Pool's Creek in Madison County. It was called for a family by the name of Pool-early settlers in that section. There was in the same section a family of "Cleeks" or "Clicks," and a feud broke out between the two families and sev- eral of the male members of each side, happening to meet by ac-
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cident in the primeval forest, a pitched battle followed, and one side, I believe the Pool side, was about wiped out.
The only two persons who saw the fight outside of the par- ticipants, was an old "country cracker" and a negro, and, as I recall, the negro could not testify, as the law then was, though possibly I am in error on that point, which, however is not material.
Indictment was returned in due course, and trial before a jury began, with Judge Reagan on the bench. The old countryman was put on the stand and told to tell what he saw, in his own words, He began: "I told Dick, that's a nigger boy that lives with me, that we would go hog hunting and fur him to git a wallet of nubbins to pitch the skittish hogs." Just then the Judge said: "See here, I don't want to hear anything about hogs, or Dick or nubbins. You tell what you saw when the Pools and Cleeks fought." "Yes, sir, your honor; I were a comin' to that pint," said the witness. "Then come to it quick," replied the Judge. "Well, as I were a-sayin', Dick and me went a hog huntin' and we found a bunch of shoats down back of my branch field." Again the Judge interrupted and said: "If the witness says any- thing more about Dick or hogs I will fine him. He must tell about the shooting." "Ef it please yer honor, I were a-comin' to that pint. As I were a-sayin', we found a bunch of shoats, and I told Dick to toss 'em a few nubbins, and he done it. Then we went 'cross the crick and we found some sows that wuz pow'ful skittish and I told Dick to toss 'em a few nubbins." The Judge could stand no more, and turning to the witness, said: "If you don't start out and tell about the shooting right from the start, I will send you to jail, so don't you mention hogs or Dick again, but tell about what you saw when you were where the killing took place." "Yes, yer honor, I were a comin' to that pint. As I were a sayin'- -" Just then the Judge called out: "Mr. Clerk, enter a fine against the witness." At that juncture an attorney who was present went up to the bench and told the Judge that the simple, uneducated old man meant no disrespect; that he was thoroughly honest and truthful, but his mind so worked that he could tell the thing only one way, and if the Judge would let him tell it that way, the jury would get the truth, so the Judge yielded, and the old fellow never missed a bunch of sows, barrows, or mixed hogs all the way down the creek, and when he got to the scene of the bloody meeting, he told all about the affray.
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