USA > Texas > The bench and bar of Texas > Part 24
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Willis v. Missouri Pacific Railway Company, Ib. 432 - A State can not give to its laws an extra-territorial effect. - When an action is transitory and is based on personal in- juries recognized by universal law it may be brought wherever the aggressor is found, but statutory actions must be brought in the State in which the statute exists and the injury occurred.
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THOMAS J. DEVINE.
Thomas J. Devine was born of Irish parentage in Hali- fax, Nova Scotia, on the 28th of February, 1820. His early opportunities for an education were liberal, and in addition to his English studies he acquired considerable proficiency in the Latin and French languages ; but he was thrown in early life upon his own resources, and when but fifteen years of age emigrated to Florida and engaged as a clerk in a mercantile house in Tallahassee; but his genius and aspirations found no congenialty in the mental re- straints and fettering routine of a life of trade. The cravings of his mind and the soaring flights of his youthful ambition impelled his exertions to reach a more compati- ble sphere, and, in 1838, he began the study of law in the office of Truxton Davis, a prominent lawyer of Woodville, Mississippi. In 1840 he went to Lexington, Kentucky, where he continued his studies and attended lectures in the law department of Transylvania University, in which he graduated in 1843 and obtained his license to practice from the Supreme Court of Kentucky. During the same year he emigrated to Texas and located at La Grange, in Fayette County, in a society composed of hetrogeneous elements, and exposed to Mexican and Indian depredations. This unsettled state of affairs was repugnant to his cultured taste and studious habits, and he soon afterwards removed to San Antonio, where he established his law office, and has ever since resided there. Here he entered at once upon a successful professional career, and soon acquired a high reputation as an able and' thorough lawyer. In 1844 he was elected city attorney, and held that office by successive re-election until 1851, when he was elected district judge of the Bexar district. He was
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re-elected to the bench in 1856, and held his posi- tion until the outbreak of the civil war. He was a lead- ing member of the Texas Secession Convention of 1861, and was appointed one of the committee of public safety to confer with General Twiggs, the commander of the United States troops in Texas, and to demand the surrender of all government arms, ammunition and military stores, and the immediate removal of the Federal troops from the State. This, in conjunction with two other gentlemen of the committee, he accomplished with the skill of a thorough deplomatist, and received the commendation and thanks of the Convention. Being an ardent devotee and supporter of the Southern cause, and a lawyer of eminent ability, he was soon afterwards appointed Confederate States judge for the Western District of Texas. The functions of this office, though necessarily limited in extent and application during the time of war, he performed with the utmost fidelity, and with a view of the importance of putting the machinery of the new court in proper motion. In 1863 his admirable qualities of statesmanship and knowledge of international law was again called into requisition. At the request of General E. Kirby Smith, he proceeded to the City of Mexico, and succeeded in arranging amicably the threatened troubles between the Mexican government and the Confed- erate States. In 1864 there was great dissatisfaction in Texas, in consequence of the conscript law and the embargo laid by the Confederate government upon the trade between Texas and Mexico, and serious troubles were threatening to arise between the government of the State and the Confed- eracy, but the patriotism, ability and pacific qualities of Judge Devine arrested all evil, and, having promptly re- paired to General Smith's headquarters, in Arkansas, he arranged the whole matter amicably and satisfactorily to all parties.
Thus as a judge and peace-maker this good man united in his person and in his office, the noblest qualities of a citizen and patriot, and rendered to his country the happiest of all services - the promotion of unity and concord, and
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the concentration of its powers and energies against the common enemy.
At the termination of the war, he saw no hope for his country through the clouds which settled over it, and took up his abode in Mexico; but Texas was his home, to her he owed all that he was, or had been, and his heart was chained to her destiny. He returned to San Antonio within a few months ; but his known ability, prominence and influence as a Southerner, drew upon him the shafts of re- venge, and he was arrested by the Federal authorities and incarcerated in Fort Jackson, at the mouth of the Mississippi, where he was confined four months. He was finally released by his giving bond that he would confine his residence to San Antonio, a duress and restraint which was virtually an imprisonment. Here vengeance still pursued him and he was twice indicted for high treason, being the only person in the South, except Mr. Jefferson Davis, who received that notoriety. But having quietly, yet defiantly, resumed the practice of his profession, he placidly awaited the abate- ment of the storm, and watched with anxious gaze the social and political wreck which it left in its pathway.
In 1873 he was appointed by Governor Coke an associate justice of the Supreme Court of Texas, but after a short but eminent career upon the bench he found that the duties of the bar, which he had so long cultivated and cherished, were more congenial to his taste as well as far more remu- nerative, and in 1875 he resigned and returned to his practice in San Antonio, which he has since pursued with vigor and uninterrupted devotion; and with the, exception of being a prominent candidate for Governor in 1878, he has declined to permit his name to be used in connection with any political office.
Judge Devine is considered one of the ablest lawyers at the Texas bar. He is a man of intellectual vigor and superior mental endowments, and while he possesses much of the humorous vivacity and spontaneous repartee charac- teristic of his parentage and the race from which he sprung, candor and sincerity are ruling traits of bis character. He
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is patient and thorough in his investigations and an excel- lent legal counselor. His uniform courtesy and placid disposition and his aptness on proper occasions to adorn with good-natured jest the dull and monotonous features of legal argument render him an engaging advocate, and give him great power before a jury, while his oratory, embellished with the most captivating qualities, often rises to the highest plain of elocution.
As a judge his decisions are characterized by an independ- ence of judgment, and a freedom from the restraints of doubtful precedent, that commend them to the practi- tioner as the emanations of profound learning, thorough research, and conscientious conviction. He held the scales of justice in even balance, and no feature of wrong, how- ever speciously attired, could disturb the equitable poise. His judgments fixed upon the firm basis of law and right yielded only to the dictates of mercy.
In private life Judge Devine possesses the noblest quali- ties. Kind, charitable and public-spirited, he is always ready to respond to every meritorious demand as a friend, as a neighbor and as a citizen.
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BENCH AND BAR OF TEXAS.
JOHN IRELAND.
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The distinguished subject of this sketch was born of yeoman parentage, in Hart County, Kentucky, on the 1st of January, 1827. His educational advantages were con- fined to the common schools of the country; but, actuated by a spirit of determination and self-reliance which buoyed him above the restraints and gyves of circumstance, his endeavors were fixed upon the purpose of achieving an honorable place among men ; and bursting the trammels of his early youth, he sought to obtain in the realities of life that knowledge of which his school facilities had afforded him but a thirsting taste.
In 1847 he was appointed deputy sheriff of Hart County, and about a year afterwards was elected constable, which position he held for three years. The knowledge of pro- cess and legal business, which the duties of these offices afforded him, directed his ambition to the bar, and in 1851 he began the study of law in the office of Robert D. Murray and Henry C. Wood, at Mumfordsville. He at once im- pressed into the service of his efforts those habits of close application and patient industry which have attended him through life, which have constructed the sure steps of his advancement and formed the sesame of his great success. So constant and thorough was his progress in mastering the general principles of the common law that in scarcely more than one year he was admitted to the bar and entered upon his practice; but casting about for a new field and more inviting prospects, he was attracted by the glittering future and allurements of the rising empire of the South- west, and in 1853 removed to Texas and settled in Seguin, where he began the erection of his fame, and which has ever since been his unofficial home. Here his sterling qual-
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ities were recognized by his fellow-citizens, and in 1858 he was elected mayor of the town. At the approach of the foreboding clouds of the civil war, he ardently espoused the cause of his section and State, and favored the prompt resumption of its sovereignty, and its withdrawal from the Union. He was a member of the Constitutional Conven- tion of 1861, and as soon as the status of political affairs were settled in his State he enlisted as a private in the vol- unteer army of the Confederacy. The same purpose and devotion to duty which had characterized his professional career marked him as an efficient soldier and invited pro- motion. He was made successively captain, major and lieutenant-colonel, and was an officer of high standing. His services extended throughout the campaigns of the Trans-Mississippi Department, and at the close of the war he returned to the practice of law at Seguin.
In 1866 he was a member of the convention assembled to form a Constitution for the State in conformity with the Johnson policy of reconstruction, and was soon after elected judge of his judicial district, but was removed on the usurpation of military power in 1867. In 1873 he served as a member of the House in the Thirteenth Legis- lature, and in the fourteenth he was a member of the Senate. In 1875 he was appointed associate justice of the Supreme Court, but was retired by the new Constitution of 1876, which required the court to consist of only three judges. His decisions are found in the forty-fourth and forty-fifth volumes of Texas Reports. His assiduous habits and fondness for close analytical investigation, his natural inquisitiveness of mind, firm and well grounded convictions through legal training, and ample resources of both principle and precedent, made him an excellent Supreme judge, and his decisions manifest a steady and profound search for truth and justice. His opinion in Lewis t. Aylett, 45 Texas, 190, first settled the principle in Texas jurisprudence that real estate can not pass by a nuncupative will. In this case he traces the power of devising real estate from its origin in the Statute of Uses, through its enlargement by the abolition of feudal tenures, when the
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custom of making nuncupative wills was engrafted upon it by necessity, to which it had always been restricted. He showed that there was nothing in the jurisprudence of Texas that warranted the extension of the power of nun- cupative devise to real property under the allodial tenures of the State, and in regard to the competency of devisees to establish a verbal devise of personal estate he adds: --
" Every dictate of humanity, and the daily lessons of life warn and teach us of the folly and impropriety of placing not only the fortunes, but the lives of the sick, aged and afflicted at the mercy and avarice of the corrupt and the vicious. That a code of laws should allow devisees to go before a clerk or judge on an ex parte proceeding, and prove a verbal will giving to strangers an estate, leaving kindred and family without provision, can not be readily admitted, and it would deserve universal condemnation."
So confirmed and justly recognized was his character for integrity, executive ability and perfect devotion to the interests of the State, that, in 1882, he was elected Gov- ernor of Texas by more than one hundred thousand majority of the popular vote. His advent to the executive office was at a period of comparative prosperity, when the spirit and pride of the people were ardently enlisted for the advancement of the various public institutions of the State, in which he also shared, and the succeeding Legislature made large appropriations for that purpose, which he car- ried out to the letter. This caused a deficiency in the treasury at the close of his first administration, which was seized upon by his opponents, who were actuated by pur- poses chiefly of a personal and selfish character, to defeat his re-election. The free grass system had resulted in the enclosure of large bodies of land by the leading stockmen of the State, often enveloping and shutting in the smaller herdsmen, and excluding them from access to the water_ courses. This produced an organized system of fence cutting, which was extended to lawful owners as well as to intruders upon the public lands, and so outrageous and universal had grown this evil, that the Governor convened an extra session of the Legislature in January, 1884, to
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devise a remedy for this species of lawlessness. Stringent and efficient laws were enacted for its suppression, which the Governor executed with his characteristic promptness and vigor; and even this was sought to be used to his prejudice and to impair his popularity. But the innate justice of the people approved and appreciated alike his motives and his official acts, and at the Houston convention in August, 1884, he was unanimously re-nominated, and was re-elected by a majority vote of more than one hundred thousand.
It has been truly said that there are times when even the virtues of men provoke hostility; as Tacitus expresses it, ' nec minus periculum ex magna favia quam ex malo." But Governor Ireland has never once swerved from his principles or the line of his conscious rectitude to conciliate his enemies or to soften opposition. But with motives based upon principle, not policy, he has at all times boldly proclaimed his views, and fearlessly practiced the precepts of his conviction and the dictates of his judgment. He abides that public appreciation which never fails to do justice to noble ends attained by pure motives and upright means.
He is a man of rare self-respecting dignity, and possesses the virtues of steady independence and sober reliance, which never spring from a commonplace mind. Starting · in life amid circumstances by which thousands of our brightest geniuses have been overwhelmed, he peered through the clouds of obscurity, and having once caught a glimpse of possibility, he fixed an unswerving aim upon success, and in the prime of life his sterling traits of character bear him onward in the achievement of usefulness and merit. His career has been one of incessant labor; at the bar in sedulously pursuing the interests of his clients, in the thorough preparation of his cases, in the study of both sides of every question - the possibilities of defeat as well as the possibilities of success ; on the bench, in the inde- fatigable search for the true principles of justice, and in the executive chair, in conscientious efforts to perform the duties of his office in the promotion of the public weal.
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He has an abiding faith and lofty pride in the great destiny of his State, and his official course, while unwarped by the demands of faction, has sought to harmonize the varied and often conflicting interests of the great Commonwealth over which he presides.
Governor Ireland is a thorough Democrat of the pure Jeffersonian school; firm, conservative and honest in his convictions, he throws the open banner of his principles to the public view, and while yielding full accord to the political changes really effected by the civil war, he is ten- derly mindful of the rights of his State, and has cherished a ready endeavor to promote its welfare in spite of faction and independent of Federal remissness.
The defective reciprocity in the surrender of criminals in the new treaty between the United States and the Republic of Mexico has subjected the whole western border of Texas to the incursions of thieves and murderers from the Mexi- can States bordering upon the Rio Grande. This has occasioned great trouble to his administration, and upon the failure of strenuous efforts to obtain Federal protection, he has asserted his intention of preventing these evils by the militia of the State. But the change of principles and policy of the general government effected by the advent of a Democratic administration, bearing a juster regard for the rights and welfare of all sections of the country, will doubtlessly relieve him from this necessity.
With these abnormal exceptions, so firm and vigorous has been his enforcement of the laws, that at no time has crime been less prevalent, life and property safer, or the general tenor of society more even and uniform in the pursuit of happiness in Texas than during his administration.
Taught from his earliest youth in the school of self- reliance and independent action, Governor Ireland keeps his own counsel and panders to no element of society. He is a man of iron will, and in his official capacity acknowl- edges no suzrainty but the requirements of law, the demands of duty, the dictates of his own judgment and the welfare of the State. His manners are dignified and re- served, yet he is generous and kind in his disposition, and
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a true friend to those who gain his respect and confidence. There is nothing ostentatious or artificial in his character; but, solid and practical in his intellectual composition, his conduct is impressed with the qualities of his mind, and he preserves a steady equanimity in both.
To say that he is devoid of strong prejudices would be an attempt to destroy the equilibrium in which nature poises her endowments; but he lives upon an official plane too high for their exercise, and the dormancy of these is but the counterpart of the active traits which shape and model his character into an orb of usefulness and eminence as a lawyer, statesman and citizen.
His qualities eminently fit him for the times and events of his administration, during which, the troubles alluded to and the lawlessness of the border, have been entirely suppressed. He has administered the affairs of the State with a well-defined grasp and vigor. He is a man who cares little for exterior show or ceremonious effect, and at his second inauguration his address, which he read from a small sheet of paper, was in dignified and modest contrast with the vain display which modern usage has introduced into installment exercises. But Texas has no statesman of sounder judgment, or of more fidelity and fortitude in the promotion and protection of its interests and rights.
Governor Ireland has been twice married. His first wife . was Mrs. Matilda W. Fanelott, whom he wedded in 1854, and who lived but a short time. He was again married in 1857 to Miss Anna W. Penn, of Mississippi, a lady whose noble qualities and accomplishments embellish his official life and adorn her station.
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BENCH AND BAR OF TEXAS.
ROBERT S. GOULD.
Robert Simonton Gould was born in Iredell County, North Carolina, on the 16th of December, 1826. His father, Daniel Gould, was a native of New Hampshire, and a Presbyterian minister. His mother, whose maiden name was Zilpha M. Simonton, was a native of North Carolina, and of Scotch-Irish parentage. His father died when he was seven years of age, and his mother soon afterwards re- moved to Alabama, and settled at Tuscaloosa with the view of giving him and a younger brother the advantages afforded by the university of that State, and to the accom- plishment of this object she devoted all her energies. She kept a boarding-house for many years, and not only suc- ceeded in giving her two sons a collegiate education, but aided in educating the children of her daughters, present- ing a beautiful commentary upon the influence and power of a noble woman for the accomplishment of good and the objects of her heart's desire, and to her self-sacrificing labors and the Christian example the subject of this sketch is largely indebted for the success and attainments of his after life.
Robert Gould was placed in the University of Alabama at the age of fourteen years, and graduated in 1844, when he had just reached his eighteenth year. In 1845 he began the study of law, but was soon afterwards elected tutor of mathematics in the university, and held that position three years and a half, continuing at the same time the study of law as his duties afforded opportunity. In 1849 he ob- tained license to practice, and immediately opened an office at Macon, Mississippi, in copartnership with Ex-Governor J. L. Martin. In the fall of 1850 he removed to Texas
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and located at Centerville, in Leon County, where he soon attained a prominent position at the bar.
In 1853 he was elected district attorney of the Thirteenth Judicial District, and having served two terms. in this office, declined re-election, and returned to bis general practice. In 1855 he was married to Miss Lenna Barnes, a native of Marengo County, Alabama, and a lady of superb qualities and accomplishments.
He was a member of the Secession Convention of 1861, and was soon afterwards elected judge of the Thirteenth District, but he resigned this office early in 1862, and entered the Confederate service as captain of a company. He was soon afterwards elected major of a battalion, known as Gould's Battalion, which formed a part of Randall's brigade of Walker's division. He participated in the battles of Mansfield, Pleasant Hill and Jenkins' Ferry, in the last of which he was wounded, and had his horse killed under him. His battalion was afterwards joined to another and formed · into a regiment, of which he was made colonel.
When the war closed he returned to his practice of law, and in 1866 was again elected judge of his district, but was removed in 1867 by order of the military authority, and considering the act illegal, he did not at once resume his practice, but resided two years in retirement on a farm. In 1870 he removed to Galveston, and in May, 1874, was appointed by Governor Coke associate justice of the Supreme Court, to fill a vacancy occasioned by the resigna- tion of Judge Peter W. Gray, and was elected to the same position under the Constitution of 1876 establishing an elective judiciary. In 1881 he was appointed chief justice of the State, to fill a vacancy caused by the resignation of Judge George F. Moore, and was a candidate before the convention of 1882 for nomination to that position, but he was unsuccessful.
As a lawyer the success of Judge Gould is due to his habits of profound and painstaking investigation, and to the careful and accurate preparation of his cases. His knowledge of law is scientific as well as practical, and he thoroughly comprehends its reason and philosophy, as well
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as its application. As a judge, his career was characterized by a steady, faithful and conscientious effort to discharge his duty, and dispense justice with a uniform and impartia! hand. Among his most important and best delivered opin- ions is his dissenting opinion in Ex parte Towles, 48 Texas, 413. In this case it was held by Chief Justice Roberts that the Constitution gives to the District Courts no power, nor to the Legislature any authority to invest them with the power to try appeals of contested elections from the County Courts, as they have not, as under the old Constitution, " a general superintendence and control over inferior tribunals." And that they can have no constitutional jurisdiction unless the contesting voter can show that he has a pecuniary interest involved amounting to the value of five hundred dollars, and a legal status capable of a judgment enforcible by execution.
As to the unconstitutionality of the act granting such appeals, Judge Gould held that the determination of con- tested elections was not a matter of ordinary legal adminis- tration, and like other special and unforeseen cases, is embraced by the spirit of the Constitution in its grants of jurisprudence, although it is not named in express terms in the allotment of judicial powers ; and that as to the want of proper parties or legal subject-matter, the objection was not more forcible than in actions against the State, or proceedings in rem in admiralty or under the Texas stock law; and that if the Legislature may confer special juris- diction upon " such other courts as may be established by law," it surely can confer the jurisdiction of contested elections upon those already established.
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