USA > Texas > Governors who have been, and other public men of Texas > Part 18
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A somewhat amusing story was told of a ruling made by Judge Buckley as trial judge.
An attorney, who afterwards under the E. J. Davis administra- tion was Attorney General of Texas, presented a motion to quash an attachment. He set forth in elaborate and specific detail seventeen grounds why in his judgment the motion should be granted, and the eighteenth ground was, "for other reasons ap- parent of record."
Judge Buckley, after careful consideration of the seventeen specific grounds, overruled them all, but quashed the attachment "for other reasons apparent of record," to him, but not to counsel.
Judge Roberts became a Colonel in the Confederate Army, and in volume 26 the name of Judge Geo. F. Moore appears for the first time as a member of the court. I knew him as a young man beginning the practice might know a distinguished man much older than himself, but never saw him, so far as I remember, until he was on the bench long after the close of the war of '61-'65.
My father knew him and esteemed his ability very highly. I heard him say more than once, "Geo. F. Moore sets at defiance, and disputes by his appearance, all the laws of physiology and phrenology." His head was much smaller than that of the average man, and he did not appear to be a man of strong intellect, but his many clear, vigorously reasoned, and profoundly learned opinions demonstrate that he was.
His great opinion in the Sparks case in 27 Texas, page 705, proves in a highly gratifying and most conclusive way that he was not only a lawyer of the first order of ability, but a heroically courageous judge.
He was a charming man socially. He was always dignified, but never austere, and was always approachable.
There is not a lawyer in Texas who has had practice sufficient to require him to consult the Texas Reports, who is not debtor to Judge Moore for some of the ablest, and most illuminating and instructive decisions ever delivered from the Supreme Bench of Texas.
I met him casually one morning in Galveston while the Supreme- Court was in session there, and he said, "I am going back to the practice for a few days. I am going to Crockett to try one or two of my old cases." I said, "Judge, won't you run up against a statute?" He said, "What statute?" I said, "There is a statute which says that no Supreme or District Judge shall appear as attorney in any court." "Well," he said, "That is news to me."
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His ignorance of the existence of a statute confirms the ancient adage that "even great Homer may sometimes nod."
I heard him relate on one occasion an incident in his practice which amused me very much, by reason of what may properly be termed his keen satire that it revealed.
The City of Austin, or at least a large number of its citizens, had contracted to pay the Houston & Texas Central Railroad a large bonus if it ran a train into Austin by a certain date.
The road failed by some days, or maybe a longer time, to fulfill its part of the contract, and the committee of citizens refused to pay the bonus.
The road brought suit against all the obligors, and they sent a committee to Judge Moore to engage him as counsel. The chair- man asked him to name his fee. He fixed it at $5,000. The chair- man said, "That is satisfactory, go ahead and we will pay the fee." The Judge said, "No, sir, I will not go ahead on that basis. You promised to pay the railroad company to come here, and it is here, and now you have come to employ me to keep from paying the bonus promised, and my fee must be paid or secured."
The eloquent and truthful tribute paid to the memory of Judge Moore by his life-long friend, Hon. Alexander W. Terrell, which is to be found in volume 60, Texas Reports, is well worth reading by every lawyer. It is such a tribute as might have been expected from such a source, and I know of no more appropriate or beauti- ful specimen of memorial oratory.
The response of Chief Justice Willie on behalf of the court, to the resolutions, and to the address of Judge Terrell, was worthy the perpetuation accorded it in the same volume.
It is a gem of fit phrasing and felicitous expression, and came from the heart of as sincere and pure a man as ever filled the exalted position of Chief Justice of the Supreme Court of Texas.
In the same volume are to be found the memorial resolutions adopted by the bar of Tyler upon the death of Hon. Micajah H. Bonner, who by appointment of Governor Hubbard succeeded Hon. Geo. F. Moore when he resigned, and also the admirable address of Judge Jas. A. Baker of Houston, who presented the resolutions by special request of the Tyler bar.
The tribute of Judge Baker to his distinguished friend was an offering of respect and admiration laid by the worthy living, on the bier of the worthy dead.
One able lawyer and just judge paid fitting tribute to another who was like unto himself. One Christian gentleman bore witness before a great court that one who had adorned that court, illus- trated in his daily walk and conversation the teaching of that old, simple and sufficient faith, by which he who spoke was consoled and comforted when a few years later he answered his Master's call, "Come up higher."
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Chief Justice Willie and Associate Justice Stayton both responded to the resolutions and to Judge Baker's address, with feeling and appropriate tributes to the worthy dead.
When any man, however exalted or however lowly his station, has so lived and served as to call forth from such men as James Addison Baker, Asa Hoxie Willie and John William Stayton heart- felt tributes of admiration, that man is avouched to those who survive him, and those who may come after him, as having lived according to the most exacting standards of worth and virtue.
The war between the states closed April 9, 1865, and the conse- quent demoralization was such that all branches of the govern- ment were disorganized, and as I have not taken the time to search official records of that day, I do not know what was the condition as to the judiciary up to the election of a Supreme Court in 1866.
My impression is that Governor Hamilton sought in a very com- mendable spirit to set the machinery of the trial courts in motion, and as I recollect, appointed Richard Coke as district judge, but I was not old enough at that time to take much interest in such matters.
I have not the slightest recollection whether or not there was any convention in 1866 to nominate candidates for Supreme Judge; or whether or not the candidates for other State offices were nominated.
That is however an immaterial detail. J. W. Throckmorton was elected Governor, and I believe Colonel Wash Jones was elected Lieutenant Governor.
The Supreme Court was composed of Geo. F. Moore, Richard Coke, Stockton P. Donley, Asa H. Willie and Geo. W. Smith, and it was a very able court.
None of them were old men, indeed scarcely middle-aged. Chief Justice Moore was only forty-four and Justices Coke and Willie, only thirty-seven.
I do not recall ever having seen Justice Donley or Justice Smith.
The opinions of the court of 1866 are contained in volumes 28 and 29, and up to page 374 of volume 30 of the Texas Reports. The last opinion of the court was written by Justice Stockton P. Donley, in whose honor Donley County was named.
While the court was on its summer vacation,-at least in Sep- tember, 1867, a military edict issued by one Griffin, commander of the Department of Texas, swept all the Supreme Judges and the 20th district judges into the discard; and their places (at least in a physical sense) were filled by military appointees who could take the oath of allegiance, which meant that they had failed to stand by their State in her hour of trial, and could swear they had given none of her people any "aid or comfort" in time of war.
It is just to say that one of the five, Andrew J. Hamilton, was
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a man of a very high order of ability, and an able lawyer and upright judge, and it is also just to say that while I was a mere youth at the time, I never heard then, or later, any charge made against the moral or official integrity of any of the reconstruction judges, but their intellectual and professional fitness was seriously questioned, and their constitutional and legal right to be where they were, was strenuously denied; but force, and not law, right or reason ruled in that mad hour.
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CHAPTER XXVI.
The Chief Justice appointed by the Federal Commander, when the constitutional court chosen by the people was abolished, was Amos Morrill, who practiced law in East Texas before the war. He was a Union man, and I assume, conscientiously so.
He was many years later appointed United States Judge for the Eastern District of Texas, which covered a territory now included in the Southern District.
He, as I recall, usually, if not at all times, wore a claw-hammer coat of an ancient vintage as to style, and was an intense Repub- lican, but an amiable old man, and so far as I ever heard, an honest judge, but was inordinately vain.
He said that when he was appointed to the judgeship he was on a visit to New York, and knowing that he would have to deal much with admiralty questions, he took steps to prepare himself in that branch of the law. For that purpose he bought a copy of Benedict on Admiralty to read on the boat on his way home, and then continuing in perfect seriousness, said: "And when I got to Galveston I knew all about Admiralty Law."
Judge Wm. P. Ballinger told me the statement was made to him, and he never failed to be amused when he related the incident. He doubtless thought, most reasonably, that any man who could learn all the admiralty law in the time it took to make a trip by boat from New York to Galveston, had a phenomenal gift of acquiring knowledge.
I witnessed a very amusing act on his part at one time in the Federal Court at Galveston. It was doubtless far more amusing to me, who had no interest in the case on trial, than it was to counsel who were interested in his decision.
A large number of parties had been indicted under some Federal Statute relating to the Ku Klux, or interference with voters, or some other of the numerous acts of Congress which were designed to harass and worry the people of the South.
The indictments were very long, and Judge Ballinger and Colonel George Flournoy were employed to represent the defend- ants who lived, as I recollect, in the southwestern part of the State.
Both counsel were able lawyers. Colonel Flournoy was clected Attorney General of Texas at 26 years of age, and was a brilliant man of solid legal attainments, and Judge Ballinger's reputation as a lawyer of high rank had been long established.
They assailed the indictments by logical and able arguments, buttressed by numerous authorities, and a wealth of legal learning.
I chanced to drop into the court room just as the arguments on the demurrers closed. It was to be expected that the judge would say, "Gentlemen, I will take the matter under advisement, and will be glad to have a list of your authorities," or, if he had
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reached the conclusion that the exceptions were not well taken, that he would summarize the legal reasons on which he based his conclusion. It seemed to me that respect for arguments of such ability, made by distinguished counsel, demanded one course or the other, but the Judge did not seem to think he was called upon to take either course.
He reached quickly out, and picked up a Bible which he had ready at hand, and which he had evidently fixed with a book mark so it would open where he purposed to read. He turned it with the left end up and squinted his eyes to discover the place he desired to open it at, and having opened it, said: "See what the Bible says: St. Paul appealed unto Caesar because he was a Roman citizen. Shall it be said that a citizen of the United States is not as good as a citizen of Rome. The demurrers are overruled."
The logic and eloquence of counsel brought forth no response from the court, except a quotation from Scripture.
On one occasion after the argument had closed in an important case, counsel for plaintiff said : "Will your honor kindly withhold your charge until I can get a stenographer to take it down? This is a very important case to my client, and involves interesting questions of law, and I very much desire to have your honor's charge in written form." "Have you a stenographer present?" "No, sir, but I can have in a few minutes if given permission." "Very well, get him." In a few minutes the stenographer rushed in and prepared to take down the expected-to-be elaborate charge of the court. Whereupon the old Judge said, "Are you ready, Mr. Stenographer?" Upon receiving an affirmative relpy the Judge said, "Gentlemen of the Jury, I will now deliver you my charge on the law of the case. You are directed to return a verdict for defendant. Did you get that, Mr. Stenographer?"
Whether he deliberately perpetrated a joke on the counsel, or whether he changed his mind on the law while waiting for the stenographer, no man knows. He apparently had no more sense of humor than a wooden Indian, and one supposition is about as likely to be true as the other.
The Texas Reports, from page 374, volume 30, up to and includ- ing volume 39, have never been accorded any very great measure of respect by the bench and bar of Texas, yet they contain some very good opinions.
It was the way by which the Judges came to get their offices, rather than their characters, which gave the people so much offense.
I have never heard a doubt expressed as to their official in- tegrity.
Many lawyers entertain the same opinion of the nine volumes as did one of the ablest lawyers I have ever known in Texas.
Fire threatened the destruction of his library, and did de-
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stroy the building in which his office was located, and he was aided by many people to save his books.
The last man in the office before the room was in flames said, "Colonel, here are a lot of books you have left. I will bring them out." "No, sir," the Colonel said, "Let 'em alone. D-n 'em, let 'em burn," and they did. They were volumes 31 to 39, inclusive, of Texas Reports.
The last judicial action of the court was the decision of the case of Ex Parte Rodriquez, the report of which covers the last 70 pages of volume 39. A full account of the case has already been given. No doubt the court believed that the result of the decision would be to nullify the election of the Democratic ticket headed by Richard Coke, and that E. J. Davis would hold over, as there would be no successor to him to qualify.
When I say that the court no doubt so believed, I do not mean to charge that it purposely and consciously construed the law erroneously so as to bring about that result, but in that day of passion and excitement that charge was freely made, and affidavits were presented to show that the case was a fictitious one, con- cocted with the design of thwarting the purpose of the Democrats to get possession of the government of the State.
I never saw but one of the three judges in my life, and never spoke to him; and they are all dead, but even at this late day I have no disposition to asperse their memories, by charging them with official infidelity.
Justice Walker delivered the opinion of the court which I have read. It covers about 27 pages of the report.
I heard when he went upon the Supreme Bench that he was an officer in the Federal Army, his regiment being stationed in Texas, but that he had been a lawyer perhaps in Michigan or Wisconsin, or some other Northern State. I have said the opinions of the court are not much respected, yet only a few days ago a friend, and kinsman of mine, for whose legal ability I have great respect, told me he considered some of the opinions of Judge Walker to be very able ones.
Whether the court construed the law correctly or not made no difference. Its opinion was ignored, and the Democrats put all the Republican office holders out, and took possession of the State government and have had it ever since.
As an abstract proposition, disobedience of the decree of any court of lawful jurisdiction is not a light matter, and to defy the decision of a court of ultimate resort, and ignore its decree was a bold step, but the people had been for four years misgoverned and robbed, and they intended to practically construe the law themselves, and most fortunate it was that they had elected such a man as Richard Coke to carry out their wishes.
Conceding for the sake of argument that the Democrats were
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technically unjustified, the fact remains that they were entitled to deliverance from a State government which respected the laws neither of God or man, and to such circumstances the old couplet, "It matters not how, or where, or when, the wily fox is trapped or slain," is applicable.
Governor Davis saw resistence was useless, and he vacated his office, and all the other officers followed his sensible example, except the Secretary of State, who came to Texas as a Federal soldier-perhaps a Colonel.
He declined to surrender his position, or the archives of the office. It was said that the Democrats did not resort to quo warranto, or any other kind of legal remedy, but that James E. Dillard of Kaufman County, then a member-elect of the Legis- lature and many years later a Judge of the Kaufman-Ellis District, went in and vi et armis, or vi et pedis (if I may coin a word of dog-Latin), lifted the imported Secretary of State out of his seat, and put him out into the hall, and installed his successor.
The ejected Republican office holder, if I am not mistaken, brought suit against Mr. Dillard, and perhaps others and recovered judgment for damages for the assault,-and in a strictly legal sense ought, perhaps, to have done so. I feel sure he continued to make his home in Austin and afterwards was elected Mayor of the City. Under such extraordinary conditions, and such a pressing emergency, a pair of strong arms and a far-reaching leg and foot are just as effective as a judicial writ of ouster, and far speedier in getting results.
The Chief Justice of the Court, when the futile opinion in the Rodriquez case was decided, was Hon. Wesley Ogden. He was the father of Hon. Chas. W. Ogden of San Antonio, who practiced law for many years in that city, and deservedly attained dis- tinction and success in his profession, and his sudden death only a few years ago caused deep regret to a wide circle of friends.
The other member of the court was General (as he was commonly called) J. D. McAdoo. He practiced law in Washington County many years and was a man of decided ability, and so far as I ever heard, of most exemplary character. His daughter, a most excellent lady, is a near neighbor of mine in my home city, and her husband is attorney for one of the great railroad lines of Texas, and a very capable lawyer.
I remember very vividly hearing General McAdoo make a speech in a criminal case before I had reached my majority.
He was, as I recall, a very tall man of massive build, with a strong, impressive voice, and a very forceful speaker. The defend- ant was charged with assault with intent to murder. Both he and the party he shot were gentlemen of good character and social position. It was proved that some little time before the shooting took place the man who was shot cursed the defendant
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in the presence of his (the defendant's) wife and mother as a "d-d coward and a d -- d scoundrel."
General McAdoo was counsel for the defense while the prose- cution was being conducted by the late Seth Shepard, then a very young man, but even at that time a brilliant and capable prosecutor.
Judge McAdoo's mother, a venerable old lady to whom he was devotedly attached, was, as I was advised, then living, as a member of his family.
After discussing the testimony at some length, General McAdoo said with great deliberation: "Gentlemen of the Jury. I do not believe it would be well for any man to curse me for a d-d coward and a d-d scoundred under any circumstances," then raising himself to his full height on the tips of his toes, he said in tones of the most intense earnestness, "So help me God, he should not do it in the presence of my wife and mother, and live."
I was standing or sitting very near to him, and his words and manner, and tones thrilled me through and through, and im- pressed me so that I have never forgotten the incident. Perhaps the fact that I fully agreed with what he said, and do yet, may have had something to do with the effect his words had on me. The defendant was acquitted.
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CHAPTER XXVII.
I shall not trouble myself to deal at any length with the per- sonnel of the Court during the time when the decisions in volumes 31 to 39, inclusive, were rendered. For the greater part of the time the court was composed of Judges Lemuel Dale Evans, Wesley Ogden and Moses B. Walker. For a brief time one James Denison was a member.
After August 31, 1873, until the Rodriquez case was decided, it consisted of Judges Ogden, Walker and McAdoo. Judge McAdoo was a district judge before he went on the Supreme Bench.
Before taking up the matter of the personnel of the Supreme Court under Democratic rule, it may be interesting to point to a decision which will reveal probably the briefest charge ever delivered in a case of murder where the judgment was affirmed, and the sentence of the law carried out. I do not set forth the style of the case because in all likelihood some of the relatives of the defendants, or one of them at least, are still living in Texas.
The defendant referred to lived at one time in the town in which I was raised, where he had some relatives of excellent character. The charge will be found in volume 32, Texas Reports, page 67 (counting by the top paging). The charge is so very brief that I took pains to count the words in it, and there are only 165. Yet it was held sufficient to justify the hanging of two men.
Judge Morrill, of whom I have written on previous pages, was Chief Justice of the Court when the opinion was delivered, and I heard him say once: "When we were up there, and came to the decision of a criminal case, we never troubled ourselves much about technicalities or forms of procedure. If it appeared that the defendant had received deserved punishment we looked no further," or words to that effect.
In this day and time, when if the pages of a charge in a murder case were put end to end, they would reach from the crown of the head, to the sole of the foot of the average defendant, the lawyer who reads the charge referred to will agree that Chief Justice Morrill's statement is supported by the record.
The habit of writing long charges is most unfortunate. I know from experience that the Court of Criminal Appeals will, in an assault to murder case (the charge in which character of case is, or used to be, the bete noir of all judges), approve a charge one- tenth of the length of the average charge in such cases. Examina- tion of the charge in Williams vs. the State, 135 S. W. 552, will confirm this statement. I am reported as having been sitting as "acting judge," which is a mistake. I was Judge of the 61st Dis- trict, sitting for the Judge of the Criminal District Court, during his absence from the city.
When Governor Coke went into office in January, 1874, the
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judges were appointive-and Governor Coke who had, as I have already said, demonstrated great ability as a Supreme Judge, appointed Oran M. Roberts, Reuben A. Reeves, Thomas J. Devine, George F. Moore and William P. Ballinger to compose the Supreme Court.
Hon. George Clark was appointed Attorney General by Governor Coke, and Alexander W. Terrell and Alex. S. Walker were ap- pointed reporters of the court. The list of eight lawyers thus connected with the Supreme Court of Texas contained no name that would not have fitly adorned the bench. One of the reporters, Judge Walker, later became a member of the court.
The court constituted, as stated above, rendered the decisions to be found in volumes 41, 42 and 43 of the Reports. The name of John Ireland first appears as one of the justices in volume 44.
I think Judge Devine resigned. He lived for many years in San Antonio and died there. He was district judge for a long period, and was a learned lawyer, a courtly gentleman, and a citizen of the most exalted character. He was a devout believer in the Christian faith, and in the course of the eloquent tribute paid his memory by Judge Terrell, he said that as death drew near, the venerable jurist while suffering intensely, said, "Cease, fond spirit, cease thy strife; and let me languish into life."
I have already dealt with the character and career of John Ireland.
Judge Ballinger, as has been said on a previous page, qualified on the 3rd of February, 1874, and resigned the same day, because the salary (then $4,500) was not sufficient to justify him in holding the position.
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