USA > Texas > Governors who have been, and other public men of Texas > Part 15
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In the ranks of those who undertook to open to civilization a virgin realm covering so vast an area, there was no place for the intellectual, physical or moral weakling. It was, if a slang phrase be permissible, essentially "a man's job."
In this connection, I take the liberty to borrow my own lan- guage used in an address once delivered by me before a joint ses- sion of the legislature of Texas on "Sam Houston: Virginian- Tennessean-Texan." "Only such men as I have named could have achieved the task which they so successfully accomplished. Primeval forests filled with wild beasts and almost limitless plains over which bloodthirsty savages roamed in unhampered freedom, offered no attraction to small men, or to men who lacked in either physical or moral courage. The weak and hesi- tant man never pioneers, but waits until his bolder fellows have blazed the way and opened the path for the army of progress. Such men as I have named were not only courageous men, but they were men of education, culture and capacity for participa- tion in the affairs of government. They were endowed with the elements of leadership, and were so intellectually and morally gifted as to be able to leave to posterity a record of achievement in the sphere of statesmanship rarely excelled in any age, and enduring proof that they were as far-seeing, efficient and patri- otic statesmen as ever laid the foundation, shaped the policies, or directed the destinies of a new nation."
Robert M. Williamson made a place here for himself, which was peculiarly his own, and kept it to his life's end. Nature had endowed him with rare qualities and gifts. He was the personi- fication of independence, was courage incarnate, and possessed in a pre-eminent measure that "divine afflatus" which is as surely the dowry of the orator as it is of the poet; and was given the fairly earned title of "the Patrick Henry of Texas."
He held, before the republic was organized, the position of Alcalde, and after the republic came into existence, was one of the first district judges and ex-officio a member of the first Supreme Court. He lived first in East Texas, later at Old Wash- ington, where the Declaration of Texas Independence was signed, and died in Wharton, Texas, in 1859.
The time which, but for his physical infirmity, he would doubtless have given in large part to youthful sports, he devoted to study, and was in consequence thoroughly familiar with the ancient Greek and Latin classics.
The marvelous expansion of Texas as relates to her judiciary cannot be more strikingly shown than by the statement that under the Constitution of 1836, the judiciary consisted of a Supreme
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Court and not exceeding eight District Courts, with one judge to each, and every District Judge was ex-officio a member of the Supreme Court, but no judge could sit as a Supreme Judge in any case which had been tried before him as District Judge.
I have been informed that when the judiciary system was first organized there were only four judges of the Supreme Court, James Collingsworth being Chief Justice. Judge Williamson was one of the District Judges, but I am not able to say who the other two were. Later, the Chief Justice was T. J. Rusk and Judges Hemphill, Mills, Shelby, Jones, Hutchinson, Jack, Morris, Baylor, and Ochiltree were members of the court. When Chief Justice Rusk retired from the bench John Hemphill became Chief Justice.
There are now approximately, if not fully, ninety District Courts and nine intermediate courts of Civil Appeals, a Supreme Court having jurisdiction of only civil cases, a Commission of Appeals to assist the Supreme Court, and a Court of Criminal Appeals.
Any man who met the requirements of judicial position in the late thirties in East Texas had to possess a rare combination of qualities. He had to have ability, integrity and the highest type of courage, with all of which Judge Williamson was prodigally endowed.
In those days most lawyers drank more or less, many to excess. It was considered by no means unethical for a lawyer at the bar to appear in court under the influence of strong drink. I have heard it said that on one occasion in a rude frontier court house a lawyer who had imbibed far too freely stated a proposition of law which did not at all commend itself to Judge Wiliamson; on the contrary, he deemed it wholly unsupported by either princi- ple or precedent. Such being his conviction, he said in his sharp, keen, penetrating tones: "Where do you find any law to sustain such a proposition?" The bibulous barrister, reaching down to his side, drew out a dirk of prodigious length and driv- ing the point in the small pine table behind which he stood, said: "Hic!" There's the law!" As quick as a flash, the judge dropped a six-shooter across the edge of the judge's stand and said: "Yes, and by G-d, here's the Constitution." The organic law prevailed on that occasion. Like most, or at least many, men of great intellectual endowment and strong convictions, he was inclined to be intolerant of opposition, but fought out in the open against all opponents, fearing none.
Very soon after the republic became a state, steps were taken to locate and build a penitentiary-a step to which for some rea- son Judge Williamson was strongly opposed. If I am correct in my recollection, the penitentiary was established at Huntsville in 1849.
A very able member of the House from Galveston, who is yet
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remembered there by the oldest citizens, championed the peniten- tiary bill, and had a safe majority in the House with him. The nearer Judge Williamson drew to defeat, and the more hopeless seemed the cause which he espoused, the fiercer his opposition grew, and the peroration of his final assault on the bill is said to have been in these words: "Mr. Speaker: If the gentleman is so anxious to have a penitentiary, he should be willing to get it the easiest and cheapest way possible, and I will point out the way. Fence in and cover over Galveston island, a long, low, sandy deso- late storm-swept and sea-bound waste, once the abode of Lafitte and his pirate band, and now the abiding place of the lordliest set of d -- d scoundrels these blue eyes ever blazed on."
Judge Williamson was one of the men who signed the first call for a convention to be held for the purpose of protesting against Mexican rule, and of taking steps to establish the Republic of Texas. The Mexican government offered a reward for the cap- ture of each of the signers, among whom were Francis Johnson and Lorenzo De Zavala. He participated in the opening fight of the revolution at Gonzales, and was a captain during the revolu- tion and took part in the Battle of San Jacinto, and was one of the framers of the Constitution of 1836.
He held the first court ever held under that Constitution in his district, which extended from Washington County to San Augus- tine County, and held under the shade of a tree the first court ever held in the latter county. From 1840 to 1845, he was a mem- ber of the Congress of the Republic. He took part in enacting that provision setting apart to every head of a family a homestead, which could not be taken for debt, the first statute of the kind ever enacted by any legislative body in all the history of the world.
He and his contemporaries and colleagues who directed the negotiations for annexation retained for Texas her ownership and sovereignty of all her public domain, one-half of which they set apart for the purpose of free public education of coming gen- erations The message of the then President of the Republic, the cultured and scholarly Lamar, upon the subject of education was, and yet remains, a literary classic.
They also provided in terms, which renders any interpreta- tion unnecessary, that Texas should never be divided without the sovereign consent of her own people-and the mathematics of humanity have no calculus to compute the time of the coming of the division of Texas, nor will the world ever behold the mournful spectacle of the suicide of a sovereign state.
A son of Judge Williamson, Captain Willie Williamson, named for his father's early day friend, James Willie, was a gallant Con- federate Captain when he had barely attained his majority, and was for many years after the close of the war between the states
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a successful commercial traveler. I esteemed it a delightful privilege to be able to claim friendship with his noble wife and himself.
His son, J. D. Williamson, a grandson of Judge Williamson, is one of the most efficient and successful members of the excep- tionably able bar of the city of Waco.
Find them where you may, and in any sphere of professional or business activity, the descendants of early Texans have always "made good." Those qualities which make for efficiency, insure success and inspire respect are inherited endowments, and rare- ly, if ever, has the law of heredity operated with greater cer- tainty than in the case of the descendants of the men whose names are honorably associated with that of the young republic which eventuated into the sovereign state, the imperial common- wealth of Texas, which every intelligent man knows is destined at some not far distant day to forcefully effect, if indeed it does not dominate, control and direct the industrial, commercial, economic and political destinies of this, the greatest nation ever on the earth.
LOUIS T. WIGFALL.
Another East Texas inan who left the impress of his intellect and courage upon the era in which he lived, was Louis Treze- vant Wigfall, a much misunderstood man.
If I am not mistaken, he lived in Harrison county. He and my father were members of the legislature at the same time. He was considered by many as a kind of "stormy petrel" in politics, who rejoiced in arousing and inflaming public sentiment on the se- cession question, and there were those who thought that beyond his ability as a stump speaker, he possessed no great degree of ability. Such an estimate was grossly erroneous. I have reason to know that among the Northern people he was looked upon as being one of the most (in their eyes) offensive secessionists.
That he was a secessionist of the most ardent type there is no doubt, but when the die was cast and war came on he went to the front with Hood's Brigade.
I make the statement concerning how he was looked upon in the North on the faith of the following incident:
I resided when beginning the practice of law in Galveston and was often the guest in the hospitable home of Hon. Wm. Pitt Bal- linger, then the nestor of the Texas Bar, a most estimable and delightful man.
On one occasion the Hon. Samuel Freeman Miller, Justice of the Supreme Court of the United States, was a visitor to that home with his family for a week or more.
If I am not mistaken, Judge Miller's first wife was a sister of Judge Ballinger-in any event, they were warm personal friends. Judge Miller was an intense Republican in political belief, and,
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using the term "smart" in the sense of intellectual, was one of the smartest men I ever met. He was, as all lawyers know, a great lawyer and a great judge. He was a physician, I have heard until he was 32 years of age, and within fifteen years from the time he put aside his pill bags was on the Supreme Bench of the United States.
On one occasion in Judge Ballinger's home they were discussing past events, including the war and secession, and finally Judge Miller said: "Oh, Ballinger, it is not surprising that you had secession and war and all your troubles when you had as lead- ers and Senators such blatherskites and demagogues as Wigfall and other men of his kind." Judge Ballinger had never been a Democrat in political faith, and he was opposed to secession, but he was a patriot and stood by his people, and he did not let the attack on one of their leaders go unchallenged. It was really amusing to hear those two distinguished men quarrel like school- boys. Judge Ballinger countered on his guest by saying: "Mil- ler, you don't know what you are talking about. If there was one man who was essentially not a demagogue that man was Louis T. Wigfall. He was an aristocrat of aristocrats, and a patrician of patricians.
"When he was a candidate before the Legislature for United States Senator he stood in the hall between the door of the House and Senate in company with a friend. As the legislators filed in he said to his friend: 'A lot of those fellows are fine specimens of legislators to be vested with the power of electing a gentleman to the United States Senate.'
"The friend said: 'Say, Wigfall, you are very indiscreet. Those men hold your political fate in their hands.' He replied: 'I don't care a d-n. The fact remains that a whole lot of 'em are copperas breeched hayseeds and have no business here.'"
Every lawyer knows that the members of the Supreme Court of the United States have their own standard of judging of the ability and distinction of a lawyer, and that is he must have appeared before them. "He has never been before us," is a remark they frequently make, and the plain implication is therefore he cannot be much of a lawyer. Judge Ballinger knew that, so he continued : "Furthermore, Miller, you have never had a lawyer before you who was the intellectual superior of Louis T. Wigfall, nor one better prepared to present an able argument upon any question of law."
Judge Miller seemed much surprised at the statement, and I must confess it gave me a new conception of Mr. Wigfall, whom I had never known, and never saw but once, and that was a very short time before his death in Galveston.
One incident in the career of Judge Miller presented a striking illustration of the irony of fate.
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He was, when appointed a Justice of the Supreme Court of the United States, a resident of Iowa, though he was born, I think, in Kentucky. He was intensely bitter against secession, and as I have said, was the most orthodox of Republicans in political faith.
Many years after he was appointed to the bench there came an appeal from a Virginia Federal Court, the case of the United State vs. Lee. It involved the title to Arlington, the ancestral estate of the Lee family. The question involved was whether title had passed to the United States by a tax sale.
In the distribution of records to the several justices, the record in the Lee case fell to Judge Miller, and so it came to pass that a Republican of Republicans, a Union man the most intense, and an appointee of Abraham Lincoln, was called upon to determine a matter of profound interest to the eldest son of the great leader of the armies of the South in the war in which those who thought as did Judge Miller, termed a "rebellion." The appellee, G. W. Custis Lee, and had himself been a distinguished officer in the "rebel" army.
It is rare that fate had played such a trick on a public man, especially a judge of the most august judicial tribunal in all the world.
It is a pleasure to record that Samuel Freeman Miller rose to the demand of the remarkable situation as became a just, brave, up- right, and impartial judge.
The case can be found in U. S. S. C. Rep., Vol. 106 (XVI Otto), page 196.
Judge Miller's opinion will remain through all the years to come as a monument to his legal ability, and judicial integrity, courage and impartiality. It is alike strange and regrettable that Chief Justice Waite and Associate Justice Woods, Bradley and Gray dissented-the latter writing the dissenting opinion.
Every lawyer should read at intervals the opinion of Judge Miller. It will strengthen his confidence in the court of last resort of this great nation, which has in repeated instances been a bulwark of defense for the South against unconstitutional and oppressive partisan legislation.
During Judge Miller's visit Judge Ballinger invited the bar of Galveston to meet his guest, and the invitation was gladly ac- cepted by a large majority of the bar.
In those days the "punch bowl" was an indispensable acces- sory to the feast, and Judge Ballinger's bowl was filled with a most seductive beverage, concocted according to his own recipe, called, I believe, "Roman punch," and it had a "punch" in it be- yond all doubt. Several members of the bar went home early well "soused." About 11 o'clock that courtly gentleman and dis- tinguished and able lawyer, the late Major F. Charles Hume, said
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to Judge Miller: "Well, Judge, can you stand another glass of punch?" "Of course I can," Judge Miller replied. "I wouldn't give a thrip for a judge who couldn't drink half a dozen lawyers under the table."
A short time before, Major Hume had argued before the Su- preme Court of the United States the case of Dexter G. Hitch- cock vs. The City of Galveston, in which he appeared for the appellant.
The Judge of the U. S. C. C. who afterward became a Justice of the Supreme Court, had sustained a demurrer to Major Hume's petition. The judgment was reversed by a court, divided four to three, and Judge Miller was one of the minority.
A short time later, before the same judge who had sustained the demurrer Major Hume recovered upon a jury trial, a verdict for $112,000, which he collected.
When they had filled their glasses the Major said: "Judge, here's hoping that the next time I come before your court you will be right on the law." Judge Miller replied, as he prepared to drain his glass: "Here's hoping you will have a better case on the law next time."
The last glass seemed to have no effect upon either, but both were steady on their feet, and clear in their heads, though neither ever used intoxicants to excess.
At that hospitable board, in a Southern home, the great Judge, an intense northerner and friend of Abraham Lincoln, indulged in delightful badinage and exchange of social courtesies, with equally as great a lawyer who had fallen on the forefront of the fighting, the most desperately wounded man in all the host that followed Robert Lee that ever recovered and was able to fight again.
Such a scene would be impossible in any land but this. No man can read the opinion of Judge Miller in United States vs. Lee without feeling a thrill of admiration for the man who penned it.
When Louis T. Wigfall entered the Senate of the United States there were many strong men in that body. It is sufficient to prove that statement to mention Jefferson Davis, Robert Toombs, Judah P. Benjamin and Andrew Johnson. Mr. Wigfall held his own with the best of them.
I heard my father say that he was in the gallery of the Senate in 1860 and heard a tilt beween Mr. Wigfall and Andrew Johnson. It took a man of courage to deliberately enter into a senatorial de- bate with Andrew Johnson, for he was a power as a debater; but Mr. Wigfall, with characteristic courage, and full of the prevail- ing Southern sentiment, taunted the great Tennessean in his clos- ing remarks by saying:
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"Now let the Senator from Tennessee put that in his pipe and smoke it," but the taunt provoked no reply.
Since the foregoing was written I had the good fortune to find in the State Library at Austin a copy of that most delightful book written by Mrs. D. Giraud Wright of Baltimore, a daughter of General Wigfall, entitled, "A Southern Girl in '61," in which I found related an incident in the life of General Wigfall which I had never heard before, but the record of which richly deserves to be perpetuated.
During the bombardment of Fort Sumpter General Wigfall was serving on the staff of General Beauregard, and was stationed on Morris Island. When he saw the Fort was in flames and the flag staff shot away, he resolved to go to the Fort and persuade Major Anderson, the Federal Commander, to desist from further resistance. His comrades endeavored to persuade him not to go, but he procured a skiff and took three negro oarsmen and a cockswain. He had not got far from shore when he was called upon to return, and was told that the Federal flag had again been raised to the top of the pole, but he refused to go back. He had tied his white handkerchief to his sword and was waving it aloft. A 32-pound ball struck the water within five yards of his boat and was followed by a shell which came near proving fatal to all who were in the boat.
As soon as he reached the wharf he sprang ashore, went round to an open porthole, and swung himself from a protruding gun to an embrasure. Shells were exploding in the Fort from the mortars on Sullivan Island. It took some time to find Major Anderson, who asked him: "Whom have I the honor of ad- dressing?" The reply was: "Colonel Wigfall of General Beaure- gard's staff." When Major Anderson inquired . what business he had with him, General Wigfall replied: "I have come to state that you must strike your colors. Your position is untenable. You have defended gallantly. It is madness to persevere in use- less resistance; you cannot be reinforced; you have no provi- sions; your ammunition is nearly exhausted, and your Fort is on fire." Major Anderson asked him on what terms he was to surrender, and the reply was "unconditional. General Beaure- gard is an officer and a gentleman. He will doubtless grant you all the honors of war, but speciali gratia."
Major Anderson replied that he had done all he could to defend the Fort, to which statement General Wigfall assented, but told him to haul down his flag. Major Anderson replied that the Con- federates were still firing on him. General Wigfall said: "Hoist a white flag. If you won't, I will on my own responsibility." Just at that time a shell burst in the ground within ten paces of where they were standing. Major Anderson invited General Wig- fall into a casemate and the white flag was hoisted, the firing
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ceased, and what is called the "Battle of Fort Sumpter" was over.
During the whole time that General Wigfall was on the way from Morris Island to the Fort he was being fired on because his white handkerchief was too small to be seen at the long distance amid the smoke and haze of the firing. He not only displayed great courage, but a spirit of chivalry towards a gallant foeman.
WILLIAM B. OCHILTREE.
Among the able men of East Texas was William B. Ochiltree. He was a District Judge at a very early day, and lived, I am pretty sure, at Nacogdoches. I never saw him, but my father served in the legislature with him, and I have heard him say that when the intellectual obtained the mastery over the animal in W. B. Ochiltree, he was the ablest man he had ever met.
My father and Judge Ochiltree were warm personal friends, though their personal habits were very different. Judge Ochil- tree loved a good drink, or rather drinks, and was fond of the great American game, while my father would not enter a saloon and did not know one card from another, and was an exem- plary churchman. Judge Ochiltree had a large head thickly cov- ered with deep red hair. A large lock or bunch hung over his brow down close to his eyes, and gave him the sobriquet of "Buffalo Head."
On one occasion my father made a brief speech in favor of some pending measure of importance, not expecting the bill to be attacked. As soon as he was seated, Judge Ochiltree arose and assailed the bill with vehemence, and worked himself up to great heat in the attack. My father was much surprised, and as soon as Judge Ochiltree had seated himself, rose and said: "Mr. Speaker, when I first heard the tremendous noise behind me a few minutes ago I thought some lordly monarch of the forest had emerged from his lair, and threatened destruction to all who might be in his path. Imagine my surprise, upon turning around, to see that the source of all the uproar was a contempti- ble "bull buffalo."
As my father took his seat, Judge Ochiltree leaned over and said: "I'll get even with you for that if it takes seven years," but he never "got even" or tried to, and the friendship between the two was never interrupted.
As an illustration of the great difference between the habits and indulgences of that day and this, an incident my father used to relate, which was first made known by Judge Ochiltree, is very striking. It involved the father and the son, and the latter looked upon it as indicating the precocious brightness of the latter.
They were playing poker in the same room at different tables.
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The son came over to the father to borrow some money. The old man said: "What has become of your money? You had a good pile a while ago." Tom replied: "I loaned it to a friend." The old man said: "Well, here's enough for a stake, and I give you with it some advice which I want you to act on hereafter: Never lend money to a gambler." Tom assured him he would keep the advice in mind. In the course of a short while luck ran against the old gentleman and wiped out his pile, and he went to Tom to borrow a stake. Tom was about 20 years old at the time. He said: "Father, I would be glad to oblige you, but the best friend I've got in the world advised me only a little while ago never to lend money to a gambler, and I promised him I would not, so I must refuse you a loan"-and he did.
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