USA > Texas > The bench and bar of Texas > Part 20
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Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47
That writers on constitutional law in commenting on pro- visions, similar to that in the Texas Constitution, which de- clares that " every law enacted by the Legislature shall embrace but one object, and that shall be expressed in its title," assert that this clause is not designed to embarrass legislation by multiplying the number of bills, but is in- tended to put an end to vicious legislation and to require that in every case the proposed measure shall stand upon its own merits.
The Supreme Court of Texas (20 Texas Rep. 782) has held that this section doubtless was to prevent embracing in an act, having one ostensible object, provisions having no relevancy to that object, but really designed to effectuate other and wholly different objects, and thus to conceal and disguise the real object proposed by the provisions of an act under a false and deceptive title.
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That the object of the act in question was clearly ex- pressed in its title and the purpose for which the aid was given was also clearly defined, and there was no good rea- son to suppose that a court would ever decide the act to be unconstitutional.
That, however, much an officer of the State may be op- posed to the provisions of an act or its policy, he is not thus justified in refusing to carry it into execution.
This hesitancy on the part of the Controller to sign these bonds gave rise to the mandamus case of Bledsoe, Controller, v. The International Railroad Company, re- ported in 40 Texas, in which the court held that a writ of mandamus did not lie against an executive officer of the State government; but this opinion was overruled by Chief Justice Moore in Kuechler v. Wright, decided at the same term.
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JAMES W. DALLAM.
JAMES W. DALLAM.
James Wilmer Dallam was born in the city of Baltimore, Maryland, on the 24th of September, 1818. His father, Francis J. Dallam, a highly respected citizen of that city, was for many years cashier of the Baltimore Bank. His mother was a Miss Wilmer, the daughter of an Episcopal clergyman. James Wilmer, the eldest son, while a boy, remained at home under the supervision of his parents, and went through the regular course of what is usually denom- inated a home education.
His father wishing to give him the advantage of a college course, sent him to Brown University, at Providence, Rhode Island. After finishing his university course he returned to Baltimore, and studied law under that able and distinguished lawyer and advocate, Hon. Reverdy Johnson, who was afterwards Attorney-General of the United States.
Mr. Dallam was but little more than twenty-one years of age when he obtained license to practice his profession. Being unwilling to wait the usual period for a young lawyer to obtain a practice in Baltimore, where the bar was literally crowded by so many able and established lawyers, young Dallam determined to emigrate to Texas to seek his fortune, and chose the little town of Matagorda as his future home. Here he remained attending to the business of his profession for four years.
Finding that there was but little litigation in the courts at that early period, he passed the winter of 1844 in the small town of Washington, then the temporary capital of the Republic, and while there employed himself in compiling the book, which he soon after published under the title of " Dallam's Digest."
In the spring of 1845 Mr. Dallam went back to Baltimore,
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and, with the assistance of his father, succeeded in pub- lishing his book, This work was prepared by Mr. Dallam under great disadvantages. But few briefs had been filed by the attorneys in the cases which had been decided by the Supreme Court of Texas, and the consequence was that the digest was necessarily imperfect. However, to Mr. Dallam must be attributed the merit of being the only lawyer in the Republic who conceived the idea of the enterprise.
When the book appeared it contained, among other things, the decisions of the Supreme Court made during the five preceding years, which had not before been pub- lished. It was eagerly purchased by the lawyers of the Republic, and was soon regarded by them as almost indis- pensable in the practice of their profession.
In the fall of 1845, Mr. Dallam returned to Matagorda, and on the first day of October of that year was married to Miss Annie P. Fisher, the daughter of Hon. S. Rhoads Fisher, who was one of the early settlers of Texas, was a strong advocate for separation from Mexico, and was after- ward Secretary of the Navy of the Republic of Texas.
As there was little to be done in the practice of his profession, Mr. Dallam, soon after his marriage, edited a newspaper in the town of Matagorda.
In the year 1847 he was engaged by some influential parties in Indianola, Texas, to edit a newspaper in that place in both German and English. In the early part of the month of August of that year (1847) he went to New Orleans to make necessary business arrangements for establishing and conducting his paper. At the time of making this visit, he was entirely unaware that yellow fever had already made its appearance in that city. Within less than a week from the time of his arrival there, he was attacked by the prevailing epidemic, which in his case terminated fatally in three days.
Thus ended the life of one whose youth gave promise of future usefulness.
Mr. Dallam's death occurred on the 20th of August, 1847, when he was not quite twenty-nine years of age. He had been married only two years, and left but one child.
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an infant daughter, Annie Wilmer Dallam, who is now the wife of Branch T. Masterson, Esq., a much esteemed and prominent lawyer of Galveston, Texas.
Mr. Dallam was a gentleman of varied and extensive reading, of much information and of fine literary taste. He was possessed, too, of untiring industry and persever- ance, and having studied under the tuition of that great lawyer, Hon. Reverdy Johnson, he was well versed in the principles of his profession.
Possessing in a high degree the qualities of wit and humor, he was the life of the social circle in which he moved ; and, being of a particularly kind and genial disposition he had many friends, and his early and untimely death was much regretted by all who knew him.
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WILLIAMSON S. OLDHAM.
The subject of this sketch was born in Franklin County, Tennessee, on the 19th of June, 1813, and was a descendant of an old Virginia family, which emigrated from England and settled in that State during its colonial period. His father was an honest farmer of slender means, and, having a large family of children, was unable to give his sons even the advantages afforded by the common schools of the neighborhood. But during the intermissions of his duties and labors of the farm, and at night, young Oldham ap- plied himself to the task of obtaining an education by his own exertions. He felt the inspirations of genius and am- bition, and made such progress in his course of self- instruction that at the age of eighteen years he opened a school in the mountains of Tennessee, in order to procure means to continue his education and prepare himself for the bar. Having followed this calling two years, during which he availed himself of every leisure moment for his own advancement, he obtained a situation in the office of the district clerk of Franklin County. While serving in this capacity, his energy, sprightliness and aspirations attracted the attention of Judge Nathan Green, afterwards Chief Justice of Tennessee, who kindly directed his study of the law. He brought to the bar the eager determination and assiduity which had characterized his youthful exertions, and so apt was his comprehension of legal principles and so ardent his ambition, that Judge Green, on signing his license, predicted for him a bright career in his chosen pro- fession.
In 1836 he removed to Fayetteville, Arkansas, where he formed a copartnership with S. G. Sneed, who was after- wards a prominent lawyer of Austin, Texas. At Fayette-
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ville Mr. Oldham soon established an eminent reputation, and in 1842 was speaker of the Arkansas House of Repre- sentatives. His profound knowledge of law, his talents and application, his great success at the bar, and his personal popularity, placed bim in the line of the highest judicial distinction, and in 1844 he was chosen almost unanimously by the Legislature an associate justice of the Supreme Court of Arkansas, and held that position until the fall of 1848, when, in consequence of ill health, he resigned, in contem- plation of making his future home in Texas. His decisions settled many important questions in the jurisprudence of Arkansas, and are noted for their logical clearness, legal erudition, and for their wise application and development of legal principles. They are contained in the first three vol- umes of English's Arkansas Reports.
In the spring of 1849 he removed to Texas and located at Austin, where he resumed the practice of law in copart- nership with James Webb, and took his place among the most eminent lawyers of the Texas bar. He was after- wards associated with William Murphy, a distinguished criminal lawyer of Alabama, who resided a short time in Austin, and subsequently with John F. Marshall and A. W. Terrill, also with George W. White, now of Nashville, Tennessee, and lastly with B. H. Davis, now of El Paso, Texas. While he was in copartnership with George W. White, in 1858, the Legislature of Texas passed an act au- thorizing the Governor to receive proposals for the prepa- ration of a digest of all the general statute laws of the State, and all the repealed laws of the Republic and State, through or under which any rights had accrued; also the colonization laws of Mexico, and of the State of Coahuila and Texas, in force at the declaration of Texas independ- ence, and appropriated twenty thousand dollars for the pur- chase of five thousand copies of the work for the use of the State. The contract for preparing this digest was awarded to Messrs. Oldham and White, and the work prepared by them will aiways hold a prominent place in the jurispru- dence of the State.
In 1861 Judge Oldham was strongly in favor of secession
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as the proper and only practical remedy for allaying the fears and dangers which the people of the South generally entertained and apprehended for their institutions under the hostile policy and administration of the Federal gov- ernment, and was an active member of the convention of that year, which severed the connection of Texas with the Union. He was chosen a member of the Provisional Con- gress at Montgomery, and was subsequently elected a Senator in the Congress of the Confederate States and held that position until the close of the war.
Throughout all the vicissitudes of the civil strife Judge Oldham was faithful and true to the cause which he had espoused with the pledge of his life, honor, liberty and property in its support. He never faltered in the advocacy of his principles, and repelled every sentiment of despair as to the result of the issue. During the last session of the Confederate Congress he was appointed one of a committee of three Senators to ascertain the remaining resources of the South and its chances for final success, compared with the power of the enemy for subjugation. He concurred fully in the views presented in the report of Senator Hill, of Georgia, that with a proper marshaling of its strength, an economical management of its resources, and with proper military skill and efficiency, the South could continue the war indefinitely, and until the North grew weary of the struggle.
In November, 1864, the Legislature of Texas passed a series of resolutions concerning "peace, reconstruction and independence," in which it was declared that the State of Texas would accept no offer of peace on any terms which did not come through the agency of the Confederate gov- ernment; that the Southern States did not secede from the Union upon any question such as the mere preservation of the slave property of its citizens, but that, being free and sovereign States, they were resolved to preserve their free- dom and their sovereignty ; that even if the horrors of war could be obliterated, the experience of Texas as a member of the Union, in which she had seen every feature of the con- stitutional compact violated, warned her against any reunion
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with the people of the North ; that while Texas earnestly desired peace, it must be coupled with the independence of the South, and that it would regard any overture of the Federal government made to an individual State, looking to its return to the Union, as an insidious policy to divide and conquer."
Judge Oldham introduced these resolutions in the Con- federate Senate, in January, 1865, and, after discussing their merits and bearing, said : -
" Mr. President, we must avoid these consequences - we must keep our people united in their determination to be free. We must do nothing, by act or omission, that will divide them, or that will weaken their resolution never to submit to their enemies. I know of no better mode of accomplishing this than by keeping constantly and promi- nently before their minds the issue so clearly made up be- tween us and our enemies. If ever a people upon earth had evidence to convince them of a fact, we have the evi- dence to convince us, beyond all doubt, that the government of the United States will not treat with us except upon the basis of submission, or reunion, which amounts to the same thing. Never was an issue more clearly or distinctly made up. We fight for independence; they fight for subjuga- tion.
" They have shown no signs of yielding, - we can not yield ; to do so is certain destruction. We staked our all upon the issue, and if we fail, all is lost. We must fight still longer. We must fight for peace, and continue to fight as the only alternative left us. We must prove by our arms what we never can do by argument or negotiation, that our enemy can not conquer us. Until we shall do that, we can never obtain any peace but that of subjugation. Then let us cease all contention and drive away all unmanly despondency, and go to work to arouse the energies and re- vive the spirit of resistance and enthusiasm of the people. If unwise counsels have prevailed, we but weaken ourselves by quarreling about it now ; if errors have been committed in the field, we can not repair them by warring upon those who committed them; if we have met with disaster and
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defeat, we can pot rise above them by unmanly discontent and dispondency.
" Our safety in this struggle depends upon the harmo- nious and faithful union of the States of the Confederacy. We should avoid everything that tends in the slightest degree to disintegration. I believe that we can keep them united, and bring to the support of the country all the strength and energy of the people only by adhering to the Constitution in letter and spirit, which all have agreed to as the bond of union. Discard that instrument, either in regard to the agencies created by it, or the powers conferred. and you will open the floodgates of discord and anarchy, of division and conflict.
"I do not, in the slightest degree, call in question the patriotism of those who favor and advocate other diplomatic agencies than those provided by the Constitution. I know that they sincerely believe that by such means we will strengthen our cause at the North, and so far promote the ends of peace, and I as sincerely believe that at this time they will weaken our cause both there and at home, and thereby prolong the war and intensify its barbarism. There is but one mode of strengthening our cause with the people of the North, and that is to convince those who are opposed to our independence that we will never accept peace without it. The greater the disaster, the darker the hour, the more firmly and stubbornly should we assert that resolve; the more determined and defiant should be our tone; the more enegetically should we set to work to gather up our strength for the renewal of the combat. The clear, cheerful, ring- ing tone of confident defiance that we are determined . to die freemen rather than live slaves,' sent out from the two Houses of this Congress would cheer the hearts of our people ; would renew the courage, revive the energies, con- firm the endurance and nerve the arms of our brave and gallant soldier boys in the army, who for nearly four years have patriotically endured and heroically battled for our cause. They would repeat the shout from rank to rank. from regiment to regiment, from brigade to brigade, from division to division, from corps to corps and from army to
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army. It would be caught up by the old gray-haired fathers and mothers at home, by our sisters, wives and daughters, and even by the little children, until its echoes would be heard from valley to mountain and from mountain to valley, and would reverberate from one end of the Confed- eracy to the other. Then indeed would we strengthen the peace party at the North, by showing that we are not to be overcome by disaster nor dismayed by defeat, or that we can be induced to abate one iota of our just demands by reason of them ; and by convincing our enemies that we can not be subjugated by them. Thus our fathers in the Revolution of 1776, strengthened the peace party of Great Britain by refusing to negotiate while an invading army was upon their soil, and by convincing the monarch and the minority that subjugation was impossible. Let not the lesson of wisdom taught us by that example be lost to us. We may make up our minds that our enemies will never grant us peace with independence, as long as they believe from any cause they can conquer us; and whenever that delusion is dispelled, peace will follow as naturally as day follows the night. The night may be dark, but the day of our deliverance will come if we but remain true to our- selves. It may be nearer than we imagine ; but whether it is or not, it will be all the brighter by reason of the dark- ness that precedes the dawn."
On another occasion he said: " I may be regarded as over sanguine; if it is so, it is because of my temperament, strengthened by my habits of life. From my earliest years I have had difficulties to encounter, with no aid to overcome them but self-reliance and perseverance. I have, therefore, been taught to believe that a determined will, energy and perseverance will accomplish anything not inhibited by .the fiat of Omnipotence."
At the close of the war Judge Oldham retired to Mexico and engaged in the task of writing an account of the " Last Days of the Confederacy," and as a means of sup- porting himself he learned the art of photography from a Frenchman in Cardova, and pursued that calling during the fourteen months he resided there. Upon the fall of the
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Empire in 1866 he went to Canada, and having seen in the papers the name of W. S. Oldham, of Texas, in the list of those pardoned, he started to his home, but on reaching New York, found that the pardoned individual was a relative who bore his name. Upon the assurance of his former partner. Col. G. W. White, who was then in Washington, that he would not be molested, he continued his homeward journey to that city, where his friends urged him to accept and apply for a pardon which they had been assured would be readily granted, but thanking them for their kind intentions and efforts, he declined the confession of guilt which a pardon implied. He said that being conscious of having done no wrong he could not ask for a pardon and thus impugn his past actions and his present convictions, and that all he wished was a passport to secure him from military arrest. He said to his friends who were interesting themselves in his behalf: "Tell President Johnson that if any twelve honest citizens of my country, possessing the qualifications of jurors would try me for treason, I feel confident that I can convince them that I have done right, but if they should decide that I have been guilty of treason, and the court should pronounce sentence upon me as a traitor, I would then consent to ask for and receive a pardon from him; but without such a legal conviction I could not."
He returned to Texas without molestation, and having settled in Houston, devoted himself exclusively to the prac- tice of his profession. He took no part whatever in public affairs, but watched with eager anxiety for the welfare of his people the arbitrary measures of reconstruction. A citizen of no country, he felt himself an alien in the State he had served so faithfully and well, and in the prosperity of which he had centered all his worldly hopes. Thus wearing away the prime of his life and the meridian of his intellectual brilliancy, he was stricken with typhoid fever and died with that disease at Houston on the 8th day of May, 1868.
Judge Oldham was a lawyer of great ability and a man of extensive literary culture. His distinguished success was the just reward of his eminent qualifications and noble
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traits of character. Starting in life in the midst of insu- perable difficulties, without the usual opportunity of obtaining even the rudiments of an education, he relied upon himself, and guided by an unswerving purpose and sustained by a determination which distanced every obstacle in his pathway, he climbed with the sure pace of destiny to that eminence which formed the goal of his ambition. His career was a striking commentary upon self-reliance and perseverance in accomplishing the highest aims and noblest purposes, and, as he said, " anything not inhibited by Omnipotence."
He was also a man of the most amiable character, strictly moral in his habits, and a true Christian. He possessed a high sense of honor, a tender conscience, a flowing gen- erosity and open-handed charity. He was a true patriot and a good man.
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H. P. BREWSTER.
Heny Percy Brewster was born in Laurens District, South Carolina, on the 22d of November, 1816. He descended from an old English family, which moved from Virginia to that State at an early period, and furnished many active par- ticipants in the Revolutionary struggle. He had two sisters and one brother, all of whom were deaf and dumb, and without the opportunities of obtaining the peculiar educa- tion which is now in reach of that class. The ingenuity of Henry was early taxed to contrive some way of communi- cating with them, and without any knowledge himself of any known system, he and his mother, who was a lady of . brilliant intellect, invented a method by which they could easily converse with the mutes so as not to be understood by any other person.
At the age of twenty years, while visiting relations in Alabama, he heard of the fall of the Alamo and the massa- cre at Goliad, and being a magnanimous and sympathetic youth, and being now thrown upon his own resources, he determined to unite his destiny with the struggles of Texas for liberty and independence. Having made his way to New Orleans, he embarked in a vessel there and arrived at Velasco at the mouth of the Brazos in the spring of 1836, from whence he proceeded immediately to the headquarters of the Texan army, which he reached a short time before the battle of San Jacinto, and enlisted as a private soldier in a volunteer company. His introduction to Gen. Houston is said to have been merely accidental, and a freak of cir- cumstance similar to that which made Sir Thomas Egerton Earl of Ellesmere and Lord Chancellor of England. The attention of the general was casually directed to his genius and appearance, and he made him his private secretary. He
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was with the general when he was wounded at San Jacinto and accompanied him to New Orleans, whither he repaired for surgical treatment. In the month of August, 1836, he returned to Texas and was appointed by President Burnett Secretary of War. As the military affairs of the Republic were at this period comparatively quiet, he found time dur- ing his tenure of that office to study law, and, having en- gaged his fine intellect in this pursuit with his habitual vigor and determination, he was admitted to the bar in 1837, and at the expiration of President Burnet's term entered upon the practice of his profession at Brazoria with every pros- pect which energy and talent could command.
In 1840 he was appointed district-attorney of the Second Judicial District, but finding his general practice to be more congenial to his taste and independence of character, as well as more remunerative, he resigned in 1843, and from that time declined every advance of official allurement. He re- cognized the jealousy of his profession, and appreciated the adage that " Lady Common Law must lie alone" and can not be wedded with impunity to the wayward abstrac- tions of politics.
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