USA > Texas > Governors who have been, and other public men of Texas > Part 30
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He poured out a stiff drink of brandy, drank it, wiped his lips with the napkin, folded it neatly and replaced it and the flask in the basket, and proceeded to argue the case.
The result was that he, to use my informant's language, "wiped the opposition off the face of the earth," and left them without even a hope on appeal, as I recall the facts. Many years later, I mentioned the remarkable case to a friend, a well known lawyer, and he told me that when Judge Black got home, he said to a friend there: "I had never been to Texas, and when I was offered a fee of $10,000.00 to go there, I decided to go, though the fee was no greater than I had often received. I had been Chief Justice of the Supreme Court of Pennsylvania, and Attorney General of the United States, and I believed I would be able to take care of myself against any lawyer I would likely meet in Texas,-but I found down there a little fellow by the name of Hale, about five feet high, and I have no desire to return to try any other case."
A lawyer who practiced for many years in Galveston told me that Mr. Hale was lying asleep on a table one day in his (my in- formant's) office in such condition that sleep was most necessary. My informant was troubled over a question of law and could find no authority whereby he could answer it. He woke Mr. Hale up. He yawned and rubbed his eyes and said, "What do you want?" The lawyer stated the point on which he was seeking light, and said he wanted an authority. Mr. Hale said: "Look in volume so and so on page so and so and you will find the case of (giving the style), which is the case you need," and at once dropped back to sleep. The lawyer got the volume and the case was directly in point and supplied just what he was looking for.
William G. Hale was a walking encyclopedia of legal knowledge. Yet his reputation as a lawyer was far less extensive than that of many who were not even approximately his equal. In the scope of his legal learning-and his ability to utilize and employ all he had ever learned in the preparation, trial and argument of cases, it is doubtful if he ever had an equal at the bar of Texas.
It was more than forty years ago that after one conviction, with, I believe, the death penalty assessed, the late David B. Culberson and the late W. L. Crawford secured the acquittal of Rothschild for the alleged murder of "Diamond Bessie." It was a great triumph of skill and legal knowledge.
LEGAL VICTORIES.
The latest legal victory of more than usual magnitude of which I have heard was that won by F. M. Etheridge of Dallas in the matter of the will of Peter McClelland, deceased. The State courts had decided in several cases, before Etheridge's employ- ment, that the codicil repealed the gift of the estate made by
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the testator to Peter McClelland, Jr., his only child. Etheridge filed a bill in the Federal Court for a construction of the will, asserting that the prior decisions were obiter dicta and indefens- ible, and won out on that proposition. McClelland vs. Rose, 208 Federal, 503. The bill was filed against the trustees and three members of the class designated by the testator as "my heirs at law" -- in other words, the collateral kin. After final decree in favor of Peter, Jr., a number of the collateral kin filed a bill in the State court for a retrial of the case. Etheridge filed a supple- mental bill in his equity suit in the Federal court, asserting that the original action was a class suit and that all members of the class, whether actually present or not, were concluded by the decree, and an injunction was sought against the prose- cution of the case in the State court. The supplemental bill was dismissed and on appeal the United States Circuit Court of Ap- peals held that the suit was a class suit and that all members of the class designated by the testator as "my heirs at law" were concluded. McClelland vs. Rose, 247 Federal, 721. The decree, therefore, finally removed all claim of the testator's collateral kin and vested the entire beneficial interest in Peter, Jr., despite the fact that the State courts had decided that he had no interest and never would have any interest in the estate.
The Hunt case will in the Federal court at Los Angeles in- volved the purely legal question of whether paragraph 14 of the will created a valid, charitable trust, and it involved a million dollars. In that case Etheridge made, before Judge Olin Wellborn, a legal argument of five hours, wholly without aids to memory, in maintaining his position that the attempted charitable trust was invalid. Of that argument the Los Angeles Times of July 12, 1912, said :
"The argument of the demurrer to the complaint in equity filed in the United States District Court involving the interpre- tation of the will of the late John W. Hunt closed before Judge Wellborn in the United States District Court yesterday. After a hearing covering two days, the court took the matter under advisement and briefs will be furnished.
"The attorneys were Francis Marion Etheridge, of Dallas, Texas; Hon. Charles M. Cooper, of Jacksonville, Fla., and Bradner W. Lee of this city. Etheridge appeared for the complainant and the latter two attorneys for the defendants. The arguments of Messrs. Cooper and Etheridge have, perhaps, never been equalled in a local court, for their eloquence and judicial learning, that of Etheridge being especially brilliant. His diction and knowl- edge of the law on the subject of the creation of trusts in wills, running all the way from the earliest days of English law down to the present time, quoted by the Dallas man without reference
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to any book, were the marvel of all who heard it. The effort of his opponent, Cooper, was but little less remarkable."
Whilst the cause was under advisement a satisfactory settlement was made.
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CHAPTER XL.
THE COURT, THE BAR, AND THE PEOPLE.
I heard both Judge Roberts and Judge Brown say that the Dis- trict Judge is the most important officer in the State Government, and the truth of that statement cannot successfully be denied.
The office is not only one of great dignity, at least should be so considered, but of extensive jurisdiction, and the Judge is vested with great power, and if he sees fit, he can abuse that power grossly, without his action being subject to revision or restraint, by any tribunal.
This being true, the imperative obligation rests upon him not to abuse it, but to constantly guard against even the possibility of such abuse.
The office of District Judge is one far more difficult to fill effi- ciently than is that of Judge of the higher courts, because the judges of the latter courts have large libraries at their command, -- have ample time to examine every question, and the very great assistance afforded by the opportunity for consultation with other judges.
The District Judge, on the other hand, is compelled to decide, as has been said, in homely but expressive phraseology, "right off the bat," with no time to examine authorities or consult with counsel not interested in the case, or to get help from any source, and under such circumstances nothing but a correct knowledge of fundamental principles can save him from manifold errors.
If I were asked what in my judgment is the most desirable,- yea, essential, qualification (next to integrity) for a District Judge, I would unhesitatingly answer: "That he should be a gentlemen."
A gentleman is one who never fails to consider first the feelings and comfort of others, and who never subordinates them to his own.
It is the duty of every Judge to extend to the bar the same measure of courtesy and consideration that he expects it to ex- tend to him. The bar owes no Judge any more courtesy or con- sideration than he owes to it.
I tried as trial judge, before God, to act upon that principle. and be guided by that standard.
My experience has been that the vast majority of lawyers (as distinguished from "shysters") are gentlemen. I have never had reason to believe that any lawyer ever attempted to mislead or deceive me about any matter before my court, and I have accepted their simple word in matters of gravest moment.
There is no tyrant at once so petty, so offensive, and so con- temptible as a judicial tryant; because his is the tyranny of cow- ardice. He takes advantage of his exemption from being called
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to judicial or personal account, to tyrannize over gentlemen who have no defense against such tyranny.
No Judge has the moral right to fix a code of rules to govern the conduct of his court, and require every lawyer to conform to them under penalty.
A great Judge of the Supreme Court of the United States once said that "No court should be enslaved by its own rules," and no Judge should make a procrustean bed of rules and demand that every lawyer practicing before him shall adjust himself to it.
The Judge who has his pen in hand ready to enter a fine against some attorney, or litigant, or witness, or juror, is, nine cases out of ten, a man who is unable to demonstrate his intel- lectual or professional fitness for the judgship.
I served on the trial bench nearly 18 years, and with the ex- ception of one witness who contemptuously flouted the subpoena from a grand jury, I never entered a fine against any juror, liti- gant, witness or attorney.
I sent an old neighbor to jail for two hours one day for, in the face of the court, threatening a witness on the stand, and later assaulting him in the courthouse.
I was asked by an attorney once how I could possibly get jurors if I assessed no fines when they failed to appear. The answer I gave him expressed my views and reflected my action for eigh- teen years. It was,-"Nine jurors out of ten are good citizens and respect the courts of the country. They are willing to obey the orders of the court and perform the duties required of them. Many of them live in the country, often away from postoffices or telephones, and when they are unable to come, have no means of sending their excuses.
Their families may be sick, or the creeks be up, or they have made, before they were served with notice, business engagements which if they fail to keep they will suffer financial loss. Their crops may be in the grass, or their fences washed away. A day out of the crop of a "one-horse farmer" may mean loss he can- not afford. A week lost may mean financial disaster. Under any of the circumstances named they ought not to be expected or be compelled to come and serve as jurors. Furthermore, they ought not to come. Their first duty is to their families." It may be said they can always invent an excuse. Very well, let them do so,-I never swore a panel of veniremen to tell the truth as to their excuses. I was compelled to test their qualifica- tions in that way, but I recall no statute requiring a man to pre- sent excuse under oath, thought there may be such statute.
I told the panel that they were not under oath, because a man that will lie when not under oath will lie when he is, and a man that will lie or equivocate to escape jury service is not fit for a juror, and his absence is a good riddance.
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I found that before the week was up every venireman sum- moned for the week, but not present, sent some good excuse for his absence. If the excuse was true, he ought not to have come. If it was not true, an unworthy and unreliable man was kept out of the jury box.
Many good citizens stand in terror of the courts of their country. A young German, who I am sure was an honest fellow, told me in my court that he wanted to go home because he was afraid his wife would not live until he returned. Tears were in his eyes, and his voice was tremulous. I asked him why he came? His reply was,-"I was afraid not to come."
A plain, humble, but worthy citizen had left what he feared was a dying wife, lest, if he was not present in court, a fine would be assessed against him he could not afford to pay. No citizen should stand in such fear of any court of his country. I said, "Go home at once, and never do you leave your sick wife to come to any court." He expressed profuse thanks and went at once.
The next applicants for release were two plainly, but neatly, dressed farmers. I did not know who they were, and do not know yet. They said, "We are entirely willing to serve, your Honor, but we are strawberry farmers, and it has been raining for two weeks. This week it is dry, and unless we clean our crops they will be lost." I said,-"Go home at once. You can serve some other time. I will find some others to take your places."
No Judge has the moral right to arbitrarily fix certain days on which, and no other, he will hear certain cases, regardless of the convenience of attorneys or litigants.
I have often sat in the noon hour, or hours, hearing injunction, or divorce cases, or motions. In every city there are many work- ing women who have married unwisely, and in consequence seek divorces. If they leave their work during work hours their wages are docked. For that reason I sat often at noon, and often after 6 o'clock, to hear such cases when requested. I did not do so as a matter of policy, but as a matter at once of principle, duty and courtesy.
I was as scrupulously careful to do so, after I had a year in advance announced my determination not to be a candidate, as I was when I expected to be a candidate for re-election.
A Judge is essentially a servant of the people. They pay him to discharge certain duties, and he is under the moral obligation to be accessible to the attorneys who represent the people, espe- cially when statements of facts and bills of exception need to be acted on. It is his duty to consider the convenience of the bar, rather than of his own.
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I have heard of Judges who seemingly delight in lecturing law- yers or some prominent man from the bench.
Such exhibition of judicial discourtesy and "assininity" appeals to the groundlings and tickles the hoi polloi, but they degrade the bench. Such action is judicial electioneering, the most de- testable form of demagogy.
No Judge who has the proper conception of the dignity of the office, or of the proprieties which are obligatory on every gentle- man, will ever be guilty of lack of consideration for the feelings or convenience or comfort of any person who has business be- fore his court, I care not how lowly may be the estate of that person.
I astonished a lot of plain people one night from the forests of another county outside of my district by staying up till mid- night to approve their witness accounts, so that they could take the midnight train and be saved twelve hours delay. I heard one say to the other: "That Judge in our county would never have done this for our class of folks." According to my conception of duty, not to have done it, when thirty or more men had left families in remote wooded districts unprotected, would not have only been discourteous, but inexcusably unkind.
The custom of making a rule for setting cases and rigidly abid- ing by it in a numerical sense is another piece of judicial, or, rather, unjudicial, absurdity.
It was known in the Sixty-first District Court while I presided over it that regardless of the position of a case set for the day which non-resident counsel were present to try, it was tried first, and the same rule applied where there were an unusually large number of witnesses in any case, and I never heard any com- plaint of such a rule.
I believe more folly has been perpetrated through the medium of special charges than in any other medium of procedure known to the law.
So far as I recall now, I never, save with one exception, gave a special charge in a civil or criminal case in my life, and if I was ever reversed for refusing to give one, the fact is not re- membered now.
I have been reversed frequently by the Courts of Civil Appeals for giving some of my own charges, or parts of them, at least, and in all likelihood the courts were often right, but their re- versal is by no means conclusive of error, because in more than one instance they reversed me in most important cases tried without a jury, in which the Supreme Court held I was right. The Supreme Court before there were any Courts of Appeals, reversed me for errors in my own charges, but never, so far as I recall, for refusing a special charge.
I do not mean that I ignored special charges tendered, for I
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did not, but examined them both as a matter of courtesy and duty. If they suggested a charge on a point I had overlooked, or if the tendered charge was better phrased than my own, I used it, but I gave no special charges, because four out of five ought not to be given.
I used a form of charge, in a physical sense, which my brother Judges in Houston adopted, and which all Judges will find a great time-saver.
I had the court reporter to have sheets of typewritten paper cut in half, and except the formal and indispensable parts of the charge each paragraph was written on a separate page, and any page not satisfactory to me, or to which well founded objection was made by counsel, could be changed, or removed altogether, and as much depends on the order of the arrangement of the points or paragraphs in a charge, the separate pages pinned to- gether at the upper left-hand corner so the pages opened from the right to left like a book, could be shifted to secure logical order of arrangement in reading the charge to the jury.
The one exception when I gave a special charge was when my mother was dying, and I was waiting for a train. I gave fifteen. and the result was that the defendant had no possible chance to reverse a substantial verdict, and had to pay it without appeal. When I charged a jury I was either very right or very wrong. No man needed an interpreter to find out what I meant, and I tried to prepare findings of fact and conclusions of law the same way.
I never had a moment's disagreement with an attorney over a bill of exceptions, it matters not how strong he made it, if he was within the utmost limit of the facts. I never tried to qualify the bill so as to avoid responsibility. If I added anything, it was a brief explanation of why I so ruled.
Demurrers and exceptions have been the cause of the waste of more good paper, and caused the loss of more valuable time than any other plea or proceeding in the courts. Unless an attack on a pleading goes to the very core of the case, and questions that a case is stated affirmatively or defensively, it is a waste of time to consider it. If sustained, in most instances the party will amend, until he states a recoverable case, or a sustainable defense,-thanks to the help of the other side in showing him where and how he was wrong.
When a mass of exceptions were filed I overruled them all (unless some one or more seemed to me to be materially mer- itorious), and charged the jury on the law as it appeared to me to be applicable to the facts.
If I was ever reversed for such action, I do not recall it, and I believe I am within the truth when I say that in eighteen years I never spent eighteen hours hearing argument on pleading.
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I suppose there never was a Judge who it was not charged had his favorites at the bar, who could expect better treatment than could other members, and in one sense the charge is true, but in no other.
Every good Judge does have his favorites, and they are those lawyers who never bring a case without knowing what they desire and expect to accomplish, and who prepare their pleadings care- fully,-and know what they are going to prove, or at least believe they can prove, and who have prepared a trial brief on every point.
His favorites are not the lawyers who plead carelessly, and who do not know what they can prove, but trust to chance, or sug- gestion, and the help of the Judge to get through.
If the Judge sustains objections to the admission of evidence because the pleadings do not authorize its admission, and declines to do injustice to the vigilant, diligent lawyer on the other side, who comes to the temple of the law, and before its altar, with his lamp lighted and full of oil, by helping them out of their dilemma, they complain.
I believe nine Judges out of ten are morally honest, and to say that any Judge has favorites, who can expect different and better treatment than other lawyers, is to say he will be guided not by his oath of office, and his sense of duty, but by his personal preferences as between individuals, which is a libel on any Judge of whom it is said, and the lawyer who says it is guilty of a wrong. If the Judge declines to help the careless, incompetent lawyer, the latter is in the fix that the old Judge told a candidate for admission to the bar he would be in, when he said he did not know much about the common law, but knew about the statutes. The old Judge said: "My friend, if the legislature were to happen to repeal the statutes, you wouldn't know any law at all."
I recall a case on a contract to sell a piece of property for $7000. The defendant made his contract by his agent. Values rose and he declined to make the deed. Plaintiff proved a per- fect case and rested. Defendant started to introduce evidence in defense. Plaintiff objected on the ground that the pleading was not under oath, as was required by the statute. Counsel for defendant asked for leave to withdraw his announcement of ready, so he could amend. Plaintiff objected. I said: "You gentlemen (defendant's counsel) are both skillful, experienced lawyers. This case is plainly on a written contract made by an agent. A perfect case has been proved. Now you want leave to stop and start again. To grant your motion would be gross injustice to the vigilant, diligent attorneys on the other side. Your motion is refused." "What, then, will your Honor do?" "I will," I said, "direct the jury to return a verdict for plaintiff,"
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which I did, and the judgment was affirmed and writ of error was refused.
Had counsel for defendant to that case been young and inex- perienced lawyers, so to speak, "on their first feet," I, in all likelihood, would have granted their motion, because a Judge is perfectly justified in preventing any young and inexperienced lawyer from losing a meritorious case because of his inexperience, and consequent embarrassment. I had less hesitation in denying the motion in the case referred to because the defendant had no meritorious defense, but was obviously seeking to prevent com- pliance with a plain written contract, because the value of the property had materially increased.
No Judge ever sowed any kind of seed from which he is surer to reap a harvest of pleasant memories than by extending a helping hand to worthy young and struggling lawyers within the limits of judicial propriety and impartiality.
It is rarely the case that the road they travel is not hard and thorny, and they often present the example of modest, but gen- uine worth, receiving less financial reward than comes to others possessed of both less ability and less principle.
Many young lawyers begin with divorce cases, and I made it an annual custom to set aside a day just before Christmas, which I devoted to divorce cases. I called it my "divorce Christmas mat- inee," and it enabled many a young fellow to provide himself with spending money,-indeed, perhaps, in some cases, urgently needed funds, for the holidays.
I have in mind more than one young man who for no other reason except that he was worthy and needed it, I extended a helping hand to, and have been abundantly rewarded by the pleasure which their marked and continued, and continuing, suc- cess gives me.
I trust no person who does me the honor to read these rambling sketches will do me the injustice to think that I mean to set myself up as an example of judicial wisdom, or official in- errancy, for I have no such thought in mind, and I do not so assess myself. I have written for no other reason than that I felt that perhaps to set down my experiences during the eighteen years of service on the trial bench, and the conclusion drawn from those experiences as to the duties of a judge, as they relate to the bar, to the people whom the bar represents, to litigants, and to all others who come before the court, might not be with- out some value.
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