USA > Texas > Governors who have been, and other public men of Texas > Part 17
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After serving several years in Congress he offered for the Senate. Older men halted and hesitated, but Morris Sheppard went boldly out after the place, and won over Hon. J. F. Wolters, a most worthy and capable man, who has since proved his readiness and ability to render most efficient public service.
He had, however, always been a consistent and I have no doubt conscientious anti-prohibitionist, and the prohibition sentiment at that time was by no means as pronounced and intense as it became later,-so Mr. Sheppard made a brave venture for so young a man. He has since been returned to the Senate without opposition.
Whether the people agree wholly with the views of any man or not, they always admire consistency, persistency, and pluck. The man who stands by his convictions, whether they be popular or unpopular, always commands the respect of the people.
I saw somewhere recently that one of the brother Senators of .Senator Sheppard, a Republican, paid Senator Sheppard in open
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Senate an eloquent tribute for his fidelity to the cause of prohi- bition, and the tribute was well deserved.
My acquaintance with Senator Sheppard is very slight, but I know him to be an indefatigable worker, and he has demonstrated his unswerving fidelity to conviction.
His first election to Congress resulted doubtless in large part from very commendable sentiment, and from a desire to pay tribute to his father's memory, but the North Texas gentlemen who offered might have known that a capable "piney woods" boy, with good character, and fluent in speech, was invincible in "the sticks."
JOHN HENRY KIRBY
It was a hot day in June, 1879. The corn was in tassel and old Sol's penetrating rays distributed the fires of summer. There was not a breath of air. Not a blade of the corn trembled, except from the shimmering heat.
A stalwart youth of about eighteen, and a vigorous, well-pre- served, broad-shouldered man of fifty-eight, were plowing round for round in the corn field. The perspiration rolled from their horses, whose nostrils were distended and their sides tremble'd with every respiration from the intense heat. Not a dry thread was on man or youth, but they persevered in their tasks.
It could be seen that they were father and son, and on occasions, to relieve the misery of their horses, they would drive their plows under the shade of the trees that skirted the corn field, giving their animals a brief respite. On one of these occasions the youth, who with a wooden paddle was cleaning his sweep while they halted in their work, addressed the other man thus:
"Father, I have been thinking for some time I would make you a proposition and I will submit it now. All of the children are married and gone away except myself, and if you will release me from the farm and help me to go to school for a time I will make a contract with you that I will thereafter support you and mother. With a little education I can earn more than both of us are earning on this farm, for at the end of every year when our debts are paid we have nothing left. You will remember what Mr. Cooper said to you last year about sending me to school."
Silence prevailed for a time while the elder man seemed to be turning over in his mind the seriousness of his son's offer. Then he answered:
"Son, I have been thinking over that very matter and I remem- ber what Bronson said. Our neighbor, Jim Priest, has gone to Woodville to see if he can employ Frank Crow, who is reputed to be the best teacher in the county, and if he succeeds then we are going to fit up the old Buxton house as a school house and I
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will release you from farm work for the balance of this year so you can attend continuously, but I will not accept your offer to maintain me and your mother. I can do that. What I want to do is to give you every chance that can be secured through any kind of sacrifice which both your mother and I are ready and willing to make."
There was joy in the boy's heart. Within two days it was an- nounced that the services of Professor Crow had been secured, and then the neighbors met at the old Buxton place, which was an old log house on an abandoned farm, and fitted it up with benches and crude writing desks, and in its one big room Pro- fessor Crow, in due time, took up his school.
This youth attended regularly every day and applied himself with such diligence and manifested such capacity that he soon won not only the interest but the affectionate regard of Professor Crow. When the six months were ended Professor Crow im- portuned the father to let the youth go home with him to Wood- ville, where Crow's mother would board him on credit for a further scholastic period. The Professor was successful. The youth accompanied him to Woodville, the county seat, in January, 1880. He entered high school there, the principal of which was a scholarly man, Prof. W. F. Gibson. The youth attended dili- gently for a period of six months.
Beginning under Professor Crow in July, 1879, with prmiary lessons, taking grammar and first lessons in composition, he came out of high school at Woodville in June the following year, having mastered what would now be substantially a four years' course in our schools and colleges, for he had not only mastered all of the arithmetics, algebra, geometry, trigonometry, conic sections and differential calculus in the way of mathematics, but he had taken history, English literature, rhetoric, mental and moral phil- osophy, and all the other branches of that period, including the dead languages, and had read Caesar, Sallust, Virgil and Cicero in Latin and was well advanced in Greek.
Immediately following the close of the term at Woodville, in June, 1880, he secured a position as a school teacher and had soon saved enough money to pay Mrs. Crow his board bill and to pay a store account at Woodville for which his friend, S. B. Cooper, stood security.
This boy, with this limited opportunity and from this humble beginning, is now no other than John Henry Kirby, President of the great Kirby Lumber Company, and the directing mind in numerous other business enterprises.
It is manifest from the foregoing that any list of East Texas men which did not include John Henry Kirby would be inex- cusably incomplete, for he is essentially an East Texan, and does credit to that remarkable realm.
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He was born and reared in the midst of the primeval forests, where his worthy parents, typical representatives of the old school of Texas pioneers, industrious, intelligent, honest and God-fearing, settled at a very early day.
In, if I mistake not, 1883, John Henry Kirby was calendar clerk of the Senate of Texas at the salary of $5.00 a day, and now he is the official and executive head of one of the largest, if not the largest of the lumber companies of Texas, which company bears his name.
There is no truer adage in Scripture, nor one which is oftener fulfilled, than "where there is no vision the people perish."
John Henry Kirby had a luminously clear vision of the possi- bilities of the development of the lumber industry of East Texas, and what was equally important, had the ability to inspire with enthusiasm and confidence like his own, northern and eastern capitalists. By sheer force of his energy, coupled with an un- swerving faith in the enterprise he had undertaken, he drove a standard-track railroad line through a sparsely settled territory of virgin pine till he reached its very heart and center, and soon the hum of the saw was heard at many different mills, the prod- ucts of which are carried to many foreign lands, besides supplying millions of feet of yellow pine lumber to Texas consumers.
Such success is never acquired by chance or by accident. It is the fruit of keen foresight, business ability of the first order, and rare executive capacity. It has been said that there is no business in which the profits can be so easily shown on paper, yet are so difficult to develop into actual money, and the state- ment has been verified by long experience.
The reason for Mr. Kirby's success is, that he attends to his business and works at the task he has set for himself. He is probably seen less frequently on the streets of his home city, Houston, than is any business man of his class. While his palatial home and my humble one are only about a mile apart, I do not recall that I have seen him in two years.
The interests for the successful direction of which he is largely responsible are of great magnitude and he is always "on the job," yet he finds time to give attention to public affairs.
He was at the front in the inauguration of the movement to build a Y. M. C. A. building in Houston, and contributed to pur- chase the property and erect the building as much as any other single individual. I have heard it stated on good authority that he subscribed $4,000 towards the erection of the Confederate monument to Hood's Brigade, which stands in the Capitol grounds at Austin, and before it was paid, or about February, 1904, the Kirby Lumber Company went into the hands of a receiver. When that fact was announced the president of the Hood's Brigade Association wrote or wired him that in view of the embarrassment
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of his company he would be released from his pledge. He replied, as I was informed, by wire that he did not desire to be released, but on the contrary would increase his subscription to $5,000. It was his personal gift, and not that of the legal entity, the Kirby Lumber Company, and he made good his word.
Twenty-five years or more after he was a clerk in the Senate of Texas he was drafted by the people of Harris County into service as a member of the House, a position he filled most effi- ciently. That was his first and last adventure into the field of politics.
That part of East Texas from Beaumont north to Longview is largely his debtor, as the original lines of railway for the con- struction of which he was responsible, have been merged into part of the G. C. & S. F. system, which serves a large area and affords the conveyance of transportation to many thousands of the very best citizens of Texas.
THE TODD FAMILY.
No name is more closely or more honorably identified with East Texas than that of Todd.
Hon. Wm. S. Todd was from 1850 to 1862 judge of the old eighth judicial district, the dimensions of which can be at least in some measure realized, when it is said that it extended from Cooke County to Cass County, which means that it covered an area larger than that of many of the States of the Union.
He was not only an incorruptibly honest and fearless judge, but was also a very able one. I have been reliably informed that he was reversed less frequently than any judge of his day and time.
A judge may be honest and fearless but possess but limited knowledge of the law, but integrity and courage cannot supply the lack of legal learning. A sense of honesty and justice of course enables a judge to see the abstract right of a case, but as Judge Roberts points out in his great opinion on rehearing in Duncan vs. Magette in 25 Texas, already referred to, law is not administered according to abstract right, but in accordance with fixed rules of law and evidence, and a judge who is not grounded in these, but relies on his personal conception of abstract justice. is often a blunderer, and his administration of the law from the bench becomes a judicial tragedy.
The reports are filled with the record of judicial errors made in this day and time, when text books on nearly every subject and reports up to almost the very day of trial are accessible to the judges, yet fifty to sixty years ago judges like Wm. S. Todd, Peter W. Gray, James H. Bell and Alexander W. Terrell conducted trials involving the most intricate and difficult questions of both civil and criminal law, and in doing so erred less frequently in proportion to the number of cases tried than I did thirty to forty
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years later, though for the larger part of the time they had access to very limited libraries, and often to practically none at all.
The reason for the correctness of their rulings was that they were not case lawyers, but were deeply grounded in the basic fundamental principles of law.
Judge Todd was a member of the secession convention, and voted for the ordinance of secession. He was a Southern gentle- man from crown to toe, which means he was the finest type of man ever fashioned by the hand of God.
When the tocsin of war sounded his son, George T. Todd, responded to the call of his native South, and went out as Captain of the first company which left Texas for the battlefields of Virginia. His company was Company A, first regiment of Hood's Texas Brigade, and fought in every battle from Bethel to Appo- mattox, and Captain Todd stayed at the post of duty till the stars and bars sank 'mid the wail of a people's agony of sorrow, behind the historic hills of Appomattox.
Returning to his home ragged and penniless, he entered upon the practice of the law and rose to the front rank at the bar. He lived at Jefferson for many years, and died there in the com- paratively recent past at the age of seventy-four. He was that man- ner of man that was equal to every situation. Whether resting 'neath fortune's favor or her frowns, he was the same genial, courageous man. He was possessed of the saving sense of humor -a blessed endowment when it does not degenerate into buffoon- ery, which it never did in the case of Captain Todd.
A younger son of Judge Todd, Hon. Chas. S. Todd, has been for many years a successful practitioner at the bar of Texarkana. By the well nigh inerrant law of heredity, Judge Todd transmitted to his sons those instinctive impulses and perceptions, and those standards of conduct which are the indefinable, but unmistakable hall-mark of the gentleman, and the name of Todd in East Texas is the synonym of genuine merit and true manhood.
I never knew or saw Judge Todd, but I esteem it a privilege to have known Captain Todd, and to have had his friendship, and I hold in high esteem Chas. S. Todd and his charming wife, the latter of whom I have had the delightful privilege of having as a guest at my humble board.
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CHAPTER XXV. THE JUDICIARY OF TEXAS.
"Justice is immutable, Immaculate and immortal !- and though all The guilty globe should blaze, she will spring up Through the fire, and soar above the crackling pile With not a downy feather ruffled by Its fierceness."
-Virginius-2nd Scene, Last Act.
No State has been more fortunate in having upon the bench of its court of last resort men both of ability and high character than has Texas.
It has been now nearly three-quarters of a century since the Supreme Court held its first session, and judges have come and gone, and the changes have been numerous, but the high standard set by the great judicial triumvirate which first comprised the court has been consistently maintained.
Within that time there have been charges of corruption made against judges in other states, and judges have been impeached for prostitution of their high positions to unworthy ends, but there has never been a judge upon the Supreme Court of Texas who could not have truly said in the words of the great Wolsey, "I have kept my robes and my integrity stainless unto heaven."
When I use the term, "Supreme Court of Texas," I mean that court as it was constituted from 1846 till 1867, when the judges who were elected in 1866 were removed from office by arbitrary military power, and that court as it has been constituted from February, 1874, until this time, and as it is now constituted.
In the interim from September, 1867, to February, 1874, there was, of course, a tribunal composed part of the time of five men and part of the time of three men, which was called the "Supreme Court of Texas," and which by sheer force of circumstances, over which the people of Texas had no control, functioned as the "Supreme Court of Texas," and the people and the bar were obliged to submit to it all legal controversies for arbitrament; but it is not that tribunal to which I refer as the "Supreme Court of Texas."
I recall reading at one time an opinion by Hon. George F. Moore, in which he was dealing with an opinion delivered by the last named tribunal (I believe, on motion for rehearing), and in the course of his opinion he said, in substance, that whatever measure of legal ability, or personal merit, the members of that tribunal may have possessed, the Supreme Court of which he was a member did not feel bound to accept its decisions as law, and it would not hesitate to hold contrary to what that tribunal had
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held; and proceeded to point out why the conclusion it had reached in the case he had in hand, was palpably erroneous.
Some of the members of that tribunal were aliens, interlopers and strangers; and others were men who forsook their country in her hour of peril, and were able to take such an oath as not one Southern man in a thousand could, or would, take,-so I am in hearty accord with Judge Moore.
I did not feel, however, that I would be justified in ignoring the fact of the actual existence of such tribunal; which, however unconstitutional and illegal may have been its origin and exist- ence, was at least a de facto court, as many a lawyer and many a litigant found out to his sorrow. With possibly one exception, there never was an hour in the history of Texas when either one of the men who from time to time composed that tribunal would have had, under normal conditions, any more chance of obtaining, either by election or appointment, a seat on the bench of the Supreme Court of Texas, than he would have had to be vested with the robe and scepter of a king.
At one time when the tribunal was in session in Austin, a gentleman who before the Civil War had won high distinction as a lawyer, and who was Confederate States Judge of the Eastern District of Texas, entered the court room, and after gazing earnestly for a considerable length of time upon the aggregation of military-made Supreme Judges (?), said: "I had never even dreamed that I should live to see the time come when a man, who when I knew him at the bar was the most pestiferous petti- fogger in all East Texas, would occupy the seat once adorned by John Hemphill and later by Royall T. Wheeler. Surely my State has fallen upon evil times."
I remember it was said in those days that when the records were distributed to the several members of that tribunal, each one wrote his own opinion, and that it was deemed a breach of judicial comity, or courtesy, for any one of the five to object to the conclusion reached by another one.
I was not at the bar in those days, but I recall distinctly that it was stated as a fact, that one of the five wrote an opinion in a case, and laid the record aside. Another one of the five, seeing no opinion in the files, took the record and wrote an opinion of his own, holding directly contrary to what the first man had held; and both opinions were filed in the archives of the court. When delivered to the clerk to be recorded, or perhaps to the reporter, the contradiction and conflict was discovered, and in some way adjusted. Surely the baleful tree of "reconstruction" bore bitter and destructive fruit.
I will likely be safe in saying that not one lawyer in ten in Texas has even an approximately correct idea of the times when the several Supreme Judges held places on the Supreme Bench, nor
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when the various changes took place. I am sure I had not, until I took the pains to investigate the records; for while I have written upon other themes almost wholly from memory, I was unwilling to trust entirely to memory as to the judiciary.
It may prove interesting to set forth the facts regarding judicial tenures and changes.
All lawyers, so far as I know, agree that the first court was composed of three great lawyers. They were men of wholly different order of mind, but all of them were men of vigorous intellect.
It is conceded, so far as I have ever heard, that Chief Justice Hemphill was the most profoundly learned man of the three. Judge Lipscomb enjoyed the rather unusual distinction of having been, before he came to Texas, a Judge of the Supreme Court of Alabama.
His grandson, a most useful citizen and worthy member of the bar of Texas, holds, or at least did hold, within the recent past, a judicial position in the county of his residence.
The first Chief Justice resigned after thirteen years of service to take a seat in the United States Senate. Judge Lipscomb died December 8, 1856. The last opinion written by him was that in the case of Jacobs vs. Arnold, which appears in volume 17 of the Texas Reports, page 652.
It appears from an examination of volume 18 that for a con- siderable time, how long I do not know, Judges Hemphill and Wheeler constituted the court. Hon. O. M. Roberts was appointed to succeed Judge Lipscomb, and his name appears for the first time as a member of the court, in volume 19.
Judge Wheeler was a man of nervous temperament, and inclined to pessimism and despondency, and was called upon to deal with questions of conflict between the military power of the Confed- erate Government and the rights of citizens, which it was under- stood greatly troubled him.
His salary, which was small, was paid in Confederate money, and proved wholly inadequate to meet the necessities of his family, to which he was passionately devoted. He was a man of spotless purity in private and public life, but his nature was unattuned to the excitement, and strife, and bitterness born of war, and the thickly gathering troubles of the present seemed to him to presage for him and his a future filled with hardships, and under the combination of troubles which beset him, his magnificent mind gave way, reason toppled from her throne, and in a state of total mental irresponsibility he died by his own hand.
The brief sketch of his life and services from the gifted pen of Hon. Chas. S. West, who in later years was a Justice of the Supreme Court of Texas, which can be found in volume 27 of the
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Texas Reports, is a beautiful and deserved tribute to a great jurist.
The last opinion delivered by Judge Wheeler, so far as I have been able to discover, was in the case of Hanks vs. Pickett, 27 Texas, page 97.
Upon the resignation of Chief Justice Hemphill, Judge Wheeler became Chief Justice, and he and Judge Roberts appear to have constituted the court until the election of Hon. James H. Bell as Associate Justice.
I have heard a very interesting story concerning the campaign which resulted in the election of Judge Bell. His opponent, I have been told, was Constantine W. Buckley, who was for a number of years Judge of a district in the southern part of the State, and who was an able lawyer. He was, I have understood, the Demo- cratic nominee.
Judge Bell had never been a Democrat, and never was after- wards. His political views were not in harmony with those of the majority of the people of Texas, but he had as District Judge displayed conspicuous ability. The Galveston News was at that time an even more influential journal than it deservedly is now, and, as I remember, from what I have heard, the late Wm. Pitt Ballinger was the legal adviser and the close friend of its then owner, Willard Richardson.
He had never aligned himself with the Democratic party, and he had the very proper conception that no man's political views had any just or proper relevancy to his fitness for judicial position.
He knew Judge Bell, and had practiced before him, and esteemed him highly as a judge. He was given free use of the columns of the News, even on the editorial page, and warmly espoused the candidacy of Judge Bell, with the result that the independent candidate defeated the nominee.
Judge Bell was a man of very high character and became a Republican after the war, but neither held nor sought office, and lived and died in the Republican faith.
I feel sure every lawyer who has read any material number of his opinions has been favorably impressed by their clearness, directness and brevity, and been struck by the frequency of the statement in the very beginning of his opinions, to the effect that he was of the opinion that the case must be reversed, or must be affirmed, according to the conclusion he had reached.
Judge Moore often began his opinions in the same way. Short opinions which go directly to the heart of the case, and correctly determine the controlling questions are greatly to be desired, but are impossible to be written if a court is crowded, pressed and hurried, because the judges then have no time to review and revise and condense.
A distinguished Judge, upon being asked why he wrote such
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lengthy opinions, replied: "Because I have not the time to write short ones." The reply may appear at first glance to involve a contradiction, but it does not, and every appellate judge will bear witness that it was the statement of absolute truth.
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