USA > Texas > Governors who have been, and other public men of Texas > Part 19
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Governor Coke then appointed Judge Peter W. Gray of Houston. He held the position only about nine weeks, and when he resigned Governor Coke appointed Judge Robert Simonton Gould to suc- ceed him.
Fortunate indeed was the Governor who had such material to choose from, and fortunate the State, the bar of which furnished lawyers so pre-eminently qualified morally and professionally for such a position.
Judge Gray lived in Houston for many years, but was before the Civil War judge of a district reaching from Galveston to Madison County, inclusive, and he sometimes held court in Polk County. He was the first Judge I ever saw on the bench, and as I was only a few years old, I can hardly remember the time. It was in Madisonville, Texas. I remember, however, the Sheriff. I think he had two pistols, and he needed them in that county at that time. I was as afraid of him as if he had been a bear, and I clung tenaciously to my father's side.
The present day district judges complain of inadequate salaries, as I did when on the trial bench, and they have a right to com-
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plain, but they get nearly twice as much now as Judge Gray received, and can get over their districts in automobiles, and in railroad trains and are allowed part, at least, of their hotel bills and other expenses.
Judge Gray had to go from county to county on horseback, or in a buggy, or by stage-and plow through mud and swim over- flowed creeks to keep his official engagements, yet he was a lawyer who would have adorned the Supreme Bench of the United States.
He was a delicate, dyspeptic man,-and for that reason was sometimes irascible on the bench-but he was a Virginia gentle- man-that is to say, he was the highest type of gentleman in the world, and always so demeaned himself. He never allowed the dignity of his Court to be offended or infringed upon, but every litigant and lawyer received absolutely fair treatment. He was absolutely fearless, physically and morally.
On one occasion a party who was accustomed to getting drunk and disturbing the peace-and who was reputed to be a dangerous man-got out on the street in front of the Court House, and yelled, and swore, and otherwise violated the proprieties and the law.
Judge Gray told the Sheriff to go out and tell the man to be quiet-that he was disturbing the court. The man was armed- there being no law against pistol carrying in those days-and he told the Sheriff that he was not in the Court House and the Judge had nothing to do with him. The Sheriff reported to Judge Gray what the "bad" man had said.
The Judge said, "The court will take a recess"-and he went down stairs and out upon the square-and toward the offender, who, when he saw the Judge coming, said, "Judge Gray, I am on the public square where I have the right to be,-and you have nothing to do with me, and you musn't bother me."
The Judge paid not the slightest attention to the warning, but walked up to the man, brushed his weapon aside, caught him by the collar, and led him into court-pushed him into a chair, took his seat on the bench, and entered a fine of a hundred dollars against him, and put him in the custody of the Sheriff, and turning to the counsel in the case on trial said, "Gentlemen, proceed with your case."
If any man from the incident just related should draw the conclusion that Judge Gray was a brawler and fighting man, he will be very much in error. On the contrary, he was a strict churchman-and was for many years one of the vestry of Christ Church in Houston, and died consoled, and comforted, by his faith and trust in the divine promise of life eternal.
He never sought to magnify his office, or display his authority by entering fines against lawyers and witnesses and jurors, as
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do many smaller men in judicial positions. A friend of mine- a man much older than I-who practiced before Judge Gray, told me that he, one day, saw a lawyer whom I knew when a boy, appear before Judge Gray for the purpose of trying an important case-in a state of intoxication.
Judge Gray knew the lawyer was addicted to that unfortunate habit, but knew that when sober, he was a lawyer of unusual ability. Instead of lecturing him, or entering a fine against him, the Judge said, "Perhaps, Colonel, we had best postpone this case till morning and have all day to try in. I will excuse you till then", or words to that effect.
If any lawyer has interest enough in seeing how well a great Judge could try cases, if he will run through the reports of Judge Gray's time, he will see how rarely he was reversed.
When the memorial resolutions in his honor were presented to the Supreme Court Judge Roberts in reply to them said he meant no disparagement to many other able trial Judges when he said "that taken all in all, Peter W. Gray was the best district judge ever on the bench in Texas."
When he left the bench the number of Texas Reports had hardly reached 25-in fact two among the latest cases he tried are reported in 25th Texas, Isaacs vs. The State, and Wyler vs. The State. I knew both defendants.
I recall my father telling me Isaacs was going to be tried and he had plead "not guilty," and I asked my father how the man could say he was not guilty, when several people saw him kill Dr. Spillers?
With all the curious interest of a boy I watched the defendant as he sat on the trial, wearing a pair of highly ornamental boots of his own make, and dressed faultlessly.
Wyler killed his wife. The facts in both cases made it diffi- cult to charge the law properly, but Judge Gray did so with un- erring accuracy.
I tried one homicide case twice in the same county in which Judge Gray tried the two cases above referred to, and was re- versed both times, which shows the difference between a lawyer like Peter W. Gray and a lawyer like myself.
Judge Roberts said the Supreme Court always treated the judgments rendered by Judge Gray with great deference and respect.
There have been five judges in Texas who were reversed in fewer cases than any others of whom I knew. They were Peter W. Gray, James H. Bell, Alexander W. Terrell, Reuben R. Gaines, and Frank A. Williams.
I have never made the calculation, but I feel safe in saying that eighty-five to ninety per cent of Judge Gray's and Judge Williams' cases were affirmed. I thought I did fairly well with a proportion of affirmances of about seventy per cent.
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Judge Gray's health was very much impaired when Gov. Coke appointed him to the Supreme Bench in 1874, and he wrote only a few opinions in the two months that he served in the court, but, as Judge Roberts said, "They were witnesses to his legal learning."
Judge Gould was living in Galveston when he received the appointment as Associate Justice, but he lived many years in the sand hills of Leon County, where his memory is yet deeply re- vered. The Camp of Confederate Veterans for that County is named in his honor, and it could have been given the name of no purer, truer, knightlier gentleman.
He raised a battalion of cavalry in that county and surround- ing counties and commanded till the war closed. He was a chivalrous soldier, a knight sans peur et sans reproche.
He was on the Supreme Bench as Associate Justice and Chief Justice for nearly eight years, and his brief, terse, clear opin- ions have been the safe guides for many a lawyer as he sought light upon the law.
Robert S. Gould as nearly fulfilled my ideal of a Christian gentleman as any man I ever knew. He was, of course, many years my senior, and I elaimed no intimacy with him, but he was my father's friend, and some of my kindred followed him in battle, and they love his memory yet.
He was dignified, but never austere, and with the gentleness and tenderness of a woman there was blended in him the cour- age of a hero.
He was an able and scrupulously just Judge, a model husband and father, and while he never made broad his phylacteries or indulged in cant, he was a sincere, humble, devout Christian, and illustrated his profession in his "daily walk and conversation."
Judge Gould and Judge Winkler of Corsicana, who was elected to the Court of Criminal Appeals in 1876, had the opportunity in 1866 to display what manner of men they were.
Judge Gould had been Major of a battalion in the Trans-Missis- sippi Department, while Judge Winker was, for a large part of the time, War Commander of the 4th Texas Regiment, Hood's Texas Brigade, in Virginia; which is to say he went again and again to where valor kept tryst with death.
In 1866 they became opposing candidates for Judge of a Judi- cial District extending, I believe, from Huntsville to Corsicana.
When what purported to be, and were in good faith believed to be, the official returns came in, Judge Winkler had an apparent majority, and received the certificate and qualified, and I have heard, was on the beneh. In some way a mistake has been made. and a recount showed that Judge Gould actually had the majority.
If I ever heard where Court was in session, I do not now re- member it, but I have been told Judge Gould presented the revised
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returns, and the certficate he had received to Judge Winkler, and the latter was fully convinced that an error had been committed in tabulating the return, and promptly yielded his seat on the bench to Judge Gould.
He did not wait for a mandamus or quo warranto or any other kind of legal process or procedure. He knew Judge Gould would not have claimed the seat if he had not known he was legally en- titled to it, if the salary had been a million dollars a year. Clarence M. Winkler would not have kept it, when he knew the majority was against him, if a hundred courts had decreed it to him.
Neither of two Southern gentlemen who were reared according to the noblest traditions of the "Old South", and who held to its exacting and exalted ideals would have kept an office to which he knew he had not been elected. It is to be hoped that their tribes are not extinct.
Judge Gould's tenure of office proved to be very short. He and all the other nineteen District Judges who were elected when he was, were swept from the bench at "one fell swoop" by military power.
Their only offense was that they were patriotic, decent men, and honorable and able judges, and hence, were necessarily "im- pediments to reconstruction," which was a riotous revel of cor- ruption, rottenness and robbery.
Judge Gould's nephew, Hon. Robert Gould Street, became a citi- zen of Galveston more than fifty years ago when but little past his majority.
By sheer force of native ability and unflagging industry, he made a place for himself in the front ranks of the exceptionally able bar of that city, which he has ever since maintained.
He has, for many years, been judge of one or the District Courts in that city, and has edited most ably a new edition of Sherman and Redfield on Negligence. He is also author of that able work, Street on Personal Injuries. His legal ability is fully recognized by the profession everywhere.
He is a highly cultured gentleman, and is deservedly esteemed and respected, as a judge and a citizen.
My recollection is that J. M. Thurmond, who was afterwards Mayor of Dallas, and was killed in a personal encounter in the Court House, in that city, perhaps thirty-five or more years ago, by a well known lawyer, was appointed by the military com- mander to succeed Judge Gould. I knew Thurmond several years later, and he was, after a fashion, a likable kind of a man. He was not devoid of natural sprightliness, but his knowl- edge of law, at least Texas law, was nil, and he possessed no more fitness for District Judge than did any hack driver in Dallas.
When I went upon the bench of the 12th Ditrict I was practi-
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ticing law in Leon County, and a member of the bar there told me he was present when Thurmond first took his seat as judge.
Thurmond was preparing to set sail on what to him was a wholly uncharted sea, so he called to Judge Gould and said: "Judge Gould, how do I proceed to open court?" The Judge re- plied: "According to the statute, sir," and turned and left the Court House.
It may seem incredible to those who did not live in that day and time, that such conditions could have existed, and such occurrences have taken place, but they did.
I have heard it often said that one of the military appointees as judge in one of the southwestern districts was requested on one occasion to take the recognizance of a defendant in a crimi- nal case, and that the District Attorney, instead of saying: "Your Honor will please take the recognizance of the defendant," said: "Your Honor will please recognize the defendant." The Judge looked hard at the prisoner for an appreciable length of time, but did not raise his own hand, nor direct the defendant to raise his. Again the District Attorney said: "I beg your Honor's pardon, but will you please recognize the prisoner?"
The judge said with deliberate solemnity: "I think I'll know the man when I see him again."
One of the reconstruction judges opened court in an interior town when he was more than half intoxicated.
He said: "Mr. Sheriff, open this d-d shebang." The sher- iff made the formal proclamations at the door of the court house.
The judge ran over the docket in a short time, then said: "Mr. Sheriff, close this d-d shebang," and it was closed. That judge later became a Federal Judge and, having abandoned the liquor habit, became a very capable judge.
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CHAPTER XXVIII.
The Court composed of Chief Justice Roberts and Associate Justices Reeves, Moore, Gould and Ireland, continued until the third Tuesday in April, 1876, when the number of judges became three, the change having been made by the Constitution of 1875, which was adopted by popular vote in February, 1876.
As I recollect, neither Judge Ireland nor Judge Reeves were candidates for nomination at the convention in Galveston in Jan- uary, 1876. The salary was reduced from $4,500 to $3,500. My impression is that the salary was no attracton to Judge Ireland, even at the higher figure, as he was a man of ample means, and accepted the position only on account of the honor attached to it.
As I remember, the health of Judge Reeves was such as to make it undesirable for him to attempt to continue on the bench, and do the arduous labor the position made necessary, and he was that manner of man who was not willing to accept the money of the State, if he could not render a reciprocal measure of service.
He was one of the twenty judges who was elected in 1886, and in 1867 was put out of office by military order.
He was an able lawyer and a most amiable, kindly man. His son, William Q. Reeves, once appeared before me in a very im- portant case and was a very skillful and capable lawyer. He was afterwards judge of the Palestine District, a position which he filled with marked ability.
He was a delightful, popular man, and his untimely death, ere the sun of his manhood had reached its noon, was a deep sor- row to a host of friends.
Judge Roberts was elected Chief Justice, and Judge Moore and Judge Gould Associate Justices at the 1876 election. When the Court so constituted met on April 18, 1876, Hon. H. H. Boone of Grimes County took the place of Hon. George Clark as Attorney General.
One able lawyer and splendid gentleman succeeded another. Judge Clark did not desire to hold the position longer, and as I have said before, Major Boone did not seek it or desire it, but obeyed the call of the people, and did not endeavor to retain it beyond the close of his term in December, 1878.
The 1876 Court rendered the decisions in Volumes 47, 48 and 49.
Judge Moore resigned as Associate Justice August 27, 1878, to take effect October 1, 1878. Judge Roberts was chosen as the dark horse nominee to break the ten days' deadlock between Governor Hubbard and Ex-Governor Throckmorton in the Austin Convention of 1878, and in consequence he resigned prior to the Tyler term of 1878.
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Judge Micajah H. Bonner was appointed by Governor Hub- bard to succeed Judge Moore, and he and Judge Moore and Judge Gould constituted the Court for some time. Judge Moore was elected Chief Justice and Judge Bonner Associate Justice at the election in November, 1878.
The Court composed of Judges Moore, Gould and Bonner ren- dered the opinions in Volumes 50, 51, 52, 53, 54 and 55. Judge Moore resigned as Chief Justice Nov. 1, 1881, and Hon. John W. Stayton was appointed Associate Justice Nov. 2, 1881, and Judge Gould was appointed Chief Justice. His name appears as that of Chief Justice first in Vol. 56 of the Reports.
In 1882 Judge Gould was defeated for Chief Justice in the Con- vention at Galveston by Hon. Asa H. Willie. Judge Bonner de- clined re-election and Hon. Chas. S. West was elected to the position of Associate Justice.
As has been already seen, Judge Willie was a member of the Court in 1866, hence was not without experience on the appel- late bench. He was not an orator, but by reason of his profound knowledge of the law and his charm of manner, and high char- acter was a very able trial lawyer.
He was a delightful, lovable gentleman, and his opinions which are to be found in Volumes 58 to 70, inclusive, testify in the strongest terms of his ability as a judge. He resigned March 3, 1888, after a little over five years' service.
He was compelled to resign owing to the inadequacy of the salary. I went into his office on one occasion when the court was in session at Galveston and he was delving into a record with books piled high around him, and I said: "Judge, I wish they would quit carting you judges around over the State from Galveston to Austin and from Austin to Tyler." He replied in his quiet, gentle way: "I wish they would pay us more."
It is said he expended out of his personal funds while in office nearly as much as the State paid him. Not a few of the able judges who have adorned the Supreme Bench of Texas have left it poorer in purse than when they took their seats upon it, and many of them have left it with health hopelessly impaired, yet it has always been the case, and is yet, that if the suggestion is made to increase their salaries to an amount commensurate with the dignity of the position, and the arduous and continued labor they must perform, the average legislator cries out: "You want to rob the people to pay the judges. If they didn't get more on the bench than they can make practicing law they would not law, they would not want the place."
There is no doubt that such statement has been often made, yet it is a fact as every intelligent man knows, that there are many honest and able lawyers who would efficiently fill the position of Supreme Judge who would forsake a law practice paying from
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three to five times the salary of a Supreme Judge, to go on the Supreme Bench, because they value the honor of the position more than they do money. The man who does not entertain that conception of the position of Supreme Judge is not the kind of man to put in that position.
I never, so far as I recall, ever saw Hon. Charles S. West, but those who knew him best admired and loved him most. He was genial, hospitable, and cultured, and as a trial lawyer had few superiors, if any, in Texas.
The firm of Hancock & West, located at Austin, did a very large practice. Both members were able lawyers, but as I recall differed in political faith. Judge Hancock was a Union man, but in 1874 defeated for the Democratic nomination for Congress Hon. Seth Shepard, who was then only 27 years of age, but who had a host of the most devoted friends that any man in Texas ever had. The contest in the convention was long and bitter, but Judge Hancock won out and was elected to Congress-per- haps more than once. He was a man of very vigorous intellect. At an early age Judge West served in the Legislature and was a member of the constitutional convention of 1875, and was one of the codifiers of the law in 1879.
Judge West had no taste for political strife. He was essen- tially a lawyer and was one of the highest class.
His (I believe eldest) son, Robert H. West, died at an early age, but not before he had established a deserved reputation as a skillful and successful lawyer. He appeared before me on one occasion in a land case which presented some very novel ques- tions of law, and while he ultimately lost, he conducted his side of it with marked ability. The case was somewhat out of the usual order, and in my finding of facts I said that "it is evident from the uncontradicted testimony that the defendants had de- liberately laid a plan to steal the plaintiff's 640 acres of land."
The statement was out of the usual order and perhaps may have been in a sense unjudicial, nevertheless was a fact.
Mr. West ("Bob," as he was usually called) said it might be construed as to, in effect, impute some wrongdoing to him, so I added the statement in substance that "no reflection is intended upon counsel for defendants, as he took the case as he found it, and his character was such as to rebut even the suspicion that he would be party to any improper transactoin." He was entirely satisfied with the addendum.
I have heard that the members of the appellate court at Gal- veston were much amused at the finding, but concluded it had not best be set forth verbatim in the report of the case. The case is reported in 21st S. W., p. 711.
Another son of Judge West is now United States District Judge for the Austin and San Antonio District. It is a rather remark-
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able fact that he presides over a court of which his distinguished grandfather, Hon. Thomas H. Duval, for whom he was named, was, for many years, the judge.
There have been some curious (so to speak) "mixups" of mem- bers of the same family in office and in politics-not only in Texas, but elsewhere.
Some forty years ago father and son were opposing candi- dates in a Texas district for State Senator. The son was elected. The memory of the remarkable race between the Taylor broth- ers in Tennessee in 1886 for Governor which "Bob," Democrat, won over "Alf," Republican, has been recently revived by the election as Governor after a lapse of thirty-four years of "Alf" in his 72nd year, over the Democratic nominee.
In Southeast Texas father and son were judges in adjoining districts, and the father had to pass through the son's district to get to one of the counties in his own, and what was more un- usual, the son, by promotion to the Chief Justiceship of the Court of Civil Appeals, was called upon to review cases tried by his father.
The son is a handsome man and a good dresser, while his father, though he always clad himself in decent garments, paid but little attention to the fashions.
It is said that upon one occasion the elder man was called to the county seat of one of the counties in his district to hear a habeas corpus case. The call was urgent, and it found him clad in khaki, and with hunting boots on, and in that garb he went.
The son chanced to see him, and suggested that he ought to get another suit-that his garb was wholly unjudicial. As the story goes, the old gentleman said: "That's all right. These clothes are good enough. It has always been the case in our family that you furnished the style, and I furnished the brains." The reply was witty, but while the elder man possessed a vig- orous intellect, he did not possess all of the brains of the family by a great deal. The son has a liberal share.
Everybody knows that father and son were both President of the United States, and when James A. Bayard of Delaware passed out of the Senate, his son, Thomas Francis Bayard, took his place.
For a considerable period of time the son of Justice William R. Day of the Supreme Court of the United States, was Judge of the United States District Court of Ohio, so the father was called upon to review the son's decision.
The son resigned and went back to the practice, and in due course, appeared before the Supreme Court to argue a case. He, it seems, is a tall, powerfully built man, while his father is thin, and small, and unusually light in weight. The son made a vigor- ous argument and when he had concluded, one of Justice Day's
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brother judges leaned over and said to him: "Judge, that young man is a block off the old chip."
That incident reminds me of a similar incident which occurred between an elderly and very able lawyer and a younger man- his nephew-who opposed him as counsel in an important case. I knew both parties. The younger man was inclined to be vain and boastful and said to the elder: "You will find out before you get through that I am kin to you, and a chip off the old block." The uncle said: "Yes, but they were chipping powerful small chips when they got to you."
Remembering the many incidents that recur to my mind as I write, has the effect to break to some extent the thread of my story of the judiciary of Texas, but the recital of such incidents serve to relieve the monotony of reading of names, and dates, and dry details of changes by election, resignation and appointment.
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