USA > Texas > The bench and bar of Texas > Part 28
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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
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J. M. HURT. 353
now inmates of an asylum for the insane. Though his locks are bleached by the winters of ages ; though he has never been charged with prejudice, and though his evidence is supported by the laws of nature and corroborated by the experience of man, yet he is somewhat arbitrary. He places the prisoner in the normal condition of man, which is san- ity, and demands of him the same conduct whether sane or insane. He never heard of insanity, because he speaks alone from the laws of nature, and insanity being an excep- tion to the natural rule, they are unacquainted. With the prisoner's language, conduct, or misfortunes he has nothing to do, and of them he is entirely ignorant. Yet he holds him with an iron grasp to the laws of nature and the expe- rience of man. Is he omnipotent? How many witnesses are necessary to measure arms with this Titan? Does he partake of the kingly character, and can he ' do no wrong?' Upon the testimony of one witness alone, the prisoner may be legally convicted and executed. Can this gentleman's evidence accomplish more? In no case can he accomplish more than can be effected by the evidence of one witness. We do not mean the evidence of any witness. Can the evidence of one witness ever be an overmatch for him? In some cases it legally and justly can ; in others the testi- mony of scores will not suffice, this depending always upon the character of the witnesses, their means of knowl- edge, and the facts sworn to.
" Having endeavored to become somewhat acquainted with this witness presumption, we now desire to call special at- tention to a very remarkable feature of his character. It is conceded by all that his evidence is relied upon, and is absolutely necessary to convict, in a great many cases in which the question of sanity is not involved. It is also conceded, under our decisions, that in these very cases the burden of proof does not shift, but remains with the State throughout. Now, upon what principle of logie or justice can we give to this presumption so much power in a case involving the question of sanity as to shift the burden to the prisoner, and in the other cases hold that it does not shift?"
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BENCH AND BAR OF TEXAS.
A. S. WALKER.
This excellent judge and profound lawyer was born near Brownsburg, in Keckbridge County, Virginia, on the eighteenth day of August, 1826. His parents were of Scotch-Irish descent, and his father was a farmer. His opportunities for an education were ample, and he gradu- ated in 1850 at Hanover College, Indiana, from which he re- ceived the degree of Master of Arts in 1854. He immigrated to Texas in January, 1852, and taught school at Manayunk, on the San Jacinto River, in Harris County, and while thus engaged prepared himself for the bar under the advice of David G. Burnett and J. Pinckney Henderson, who also gave him the use of their books. In January, 1853, he obtained his professional license from Judge C. W. Buckley, at Houston, and in July located at Georgetown, where he was soon afterwards appointed district clerk by Judge R. E. B. Baylor to fill the vacancy of a fractional term in that office, occasioned by the resignation of the incumbent. In 1854 he began his practice at the bar, and in 1858 was elected district attorney of the Seventeenth Judicial Dis- trict. In 1862 he was elected district judge, but was removed from the bench in 1865 by the military power as an impediment to reconstruction.
While at the bar of Georgetown Judge Walker was associated with A. J. Strickland, and, after his death, formed a copartnership with Colonel Richard Sansom, to which A. H. Chalmers was subsequently admitted. In 1865, having associated with Morrison H. Bowers, he re- moved to Austin, and after his death,. in 1872, he formed a copartnership with Judge A. W. Terrell, which continued until he left the bar.
On the organization of the Court of Commission of
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A. S. WALKER.
Appeals, in 1879, he was appointed by Governor Roberts one of the judges of that bench; but held his office only a short time before he resigned in order to accept that of dis- trict judge, to which he had been elected by the people of the Sixteenth Judicial District, without canvass or solicitation. In 1884 he was re-elected without opposition, and holds that position at the present time.
The ruling traits of his character are a deep love of * justice, an unswerving integrity, and an abiding strictness in the performance of duty. He is a thorough master of the principles of law, untiring in his search for truth, calm and conscientious in his conclusions, and no art of casuistry can induce him to abandon an opinion formed. from an impartial judgment, and fortified by reason and sound sense. Yet he is patient and courteous in his defer- ence to the opinions of others and to the views of opposi- tion; and while he is firm in maintaining his own honest convictions, he never challenges the sincerity of others.
These traits eminently qualify him for the bench, and few judges ever enjoyed greater confidence on the part of both the bar and the people. His opinions are generally accepted as conclusive of the questions at issue, and as lights along the path of justice. While he is stern and inflexible in the enforcement of the law, his opinions are always so tempered with manifest rectitude and impar- tiality that they receive the homage of satisfaction from the most disappointed client.
Judge Walker brings these traits of his character to bear equally upon all his dealings with men, and in all the relations of life his actions are guided by the beacons of duty which swing from his judicial censor and illumine the bench.
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BENCH AND BAR OF TEXAS.
GEORGE CLARK.
The subject of this sketch was born in Eutaw, Alabama, on the 18th day of July, 1841. His father, James B. Clark, . was a native of Pennsylvania, and a lawyer by profession. He removed to Alabama in 1822 and became a distinguished judge in that State where he presided as chancellor for nearly eighteen years, and died in 1873 at an extreme age. His mother was formerly Mary Erwin, a native of Virginia.
George Clark received the best training afforded by the schools of his native town and completed his education at the University of Alabama, where he also studied law ; but in June, 1861, he abandoned his studies and enlisted in the Confederate army as lieutenant in the Eleventh Regi- ment of Alabama infantry, and in 1862 was promoted to the rank of captain. He participated in all the great battles · of the Army of Northern Virginia, was wounded at Gaines' Mill, Gettysburg and Ream's Station, and stood in the last defiant line at Appomattox.
At the close of the war he returned to Alabama, and in 1866 was admitted to the bar, and began the practice of his profession at Eutaw; in January, 1867, he -removed to Texas and located at Weatherford, but in December, 1868, settled permanently at Waco, where he still resides, in the enjoyment of a large practice.
During the trouble with the Radical incumbents, occasioned by the installation of Governor Coke and the Democratic State ticket, in 1874, he was placed temporarily in charge of the office of Secretary of State under the incoming administration, and was soon afterwards made Attorney- General of Texas, which position he held until 1876, when, his office being vacated by the intervention of the new
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GEORGE CLARK.
Constitution, he was appointed one of the committee to revise the laws of the State. In 1879 he was appointed one of the judges of the Court of Appeals, but resigned in October, 1880, and has since that time devoted himself exclusively to his profession.
In all these official stations Judge Clark while being, perhaps, the youngest man who had ever held either of them in the State, performed his duties with an ability and fidelity which render his career most honorable and brill- iant, and he is a man to whom Texas may well look for eminent services in the future. Modest, retired and devoted to the duties of his profession, his qualities and success as a lawyer engage the most, implicit confidence of his clients, and invite a large patronage.
His decisions upon the bench of Appeals evince a vigilant and painstaking research, present a clear and conscientious exposition of the law, and an unswerving pursuit of justice. He is a man of great frankness and candor, and so marked are these traits of his character, that the author was. on his first acquaintance with him, disposed to impute to him also an element of captiousness ; but he soon found that under- neath his open and outspoken exterior attributes, no man possessed a kinder heart, a more courteous gentility, or a keener sensitiveness in regard to the feelings of others, and the ethics of a true gentleman.
He is a lawyer of excellent ability, and loves his profes- sion with the fondness of a devotee. He sees in its ample field more than a mere harvest of fees and political garlands. He sees in it the crops of noble possibilities, of honorable achievement, of virtuous excellence, the highest good of society - the myrtle as well as the laurel. He possesses the habits and powers of intense and vigorous application. His perceptions are acute and concentrative, and his com- prehension ready and penetrating, which with an extensive and accurate knowledge of law, and sound judgment, render him a safe counselor and a successful advocate; and as a criminal lawyer, he has few if any superiors in the State.
His able opinion in Rothschild v. The State, 7 Texas Court of Appeals, 519, settled a question which had been
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BENCH AND BAR OF TEXAS.
held in perplexing conflict both in Texas and other States. This was in regard to the competency of a juror in a crim- inal case who had formed and expressed an opinion from rumor and general report. The juror was examined upon his voir dire in the court below, as follows : -
" Q. Would we have to introduce evidence to change your opinion, or would you still entertain that opinion and act on it?
. " A. If the evidence comes in the same as I have heard, of course I would believe it.
"Q. What I want to know is this: You say that you have an opinion - would you change that opinion if we were to introduce some testimony that the man was not guilty ?
" A. Yes, sir; I suppose so.
" Q. If we did not do that, your opinion is formed con- clusively ?
" A. If the evidence is the same as I have heard it.
" Q. Then you have made that opinion an established opinion, granting that the evidence is the same as that upon which your conclusion is formed ?
" A. Yes, sir.
" Q. Unless you hear something else, you will maintain the opinion you have ?
" A. Yes, sir."
In reply to a question propounded by the court, the juror stated that if what he had heard was true, then he had an opinion, but if it was not true he should not act upon it.
The district judge overruled the objection for cause, and the defendant having exhausted his peremptory challenges upon others presented, who had made similar statements, the juror was sworn in and sat upon the trial.
The question of the qualification and competency of ju- rors has been long agitated by the courts, both of England and America, and since the decision of Chief Justice Mar- shall on the trial of Aaron Burr, who held that "to have formed and delivered an opinion was sufficient to exclude from the jury, but that slight impressions on the mind were not sufficient," the question has continually recurred as to
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GEORGE CLARK,
what constitutes a fixed and predetermined opinion as dis- tinguished from a mere hypothetical impression. In the case of Ex parte Vermilyea, 6 Cowan, 563, Mr. Justice Woodworth says that : --
"To have formed and expressed an opinion from a knowl- edge of the facts is good cause of challenge, and it can not be material from what source the knowledge was derived, if the bias proceeds from a preconceived opinion, it equally affects the accused. Chief Justice Spencer, in the case of Vanalstyne, held that if a juror bad formed and expressed his opinion from a knowledge of the facts, or from the informa- tion of those acquainted with the facts, it was good cause for challenge, but not if it was formed from mere rumor and report. Judge Iredell declared in the case of Fries that ' whenever a predetermined opinion is formed from whatever motives it creates an improper bias, extremely difficult to get rid of,' and the same doctrine is held by Mr. Justice Maxey in the case of The People . Mather, 4 . Wendell, 229.
In Mississippi the question arose from the peculiar form of the interrogatory put to the juror, who was asked whether he had formed or expressed, instead of formed and ex- pressed, an opinion, that would influence him as a juror. The court, on referring to the reason given in the books for the conjunctive form of the interrogatory - that a man who has made up his opinion and expressed it aloud is more apt to adhere to it than if he had kept it concealed - say " This reason is not satisfactory. We think that if a juror has made up a fixed opinion from the knowledge of the facts, although he has kept that opinion locked up in his own heart, he is not a competent juror, but if he has only fashioned in his mind an opinion from report, and has not given utterance to that opinion it would not be sutti- cient to exclude him. An impartial juror is one whose mind is open to receive the impressions to be made by the testimony ; one whose mind is poised upon the scales of in- difference, and capable of weighing the testimony adduced on the trial in opposition to floating rumors."
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BENCH AND BAR OF TEXAS.
" It is vain," says Mr. Bishop, " for a man to say, or even believe, that he can judge impartially of a matter which he has already determined ; for his mind, which ought at least to be a blank on which the evidence might write its conclusions, is already occupied. Human nature, as de- veloped in the average of men, does not permit this. The juror is to hear, and then say, what he believes ; but if he he- lieves before hearing that only which can lawfully affect his .opinion, namely, the testimony of witnesses in open court, he is, in legal reason, disqualified to hear and be swayed by the testimony. It is immaterial, therefore, whether the belief, which comes not according to law, is derived from rumor or from testimony to the statements of a more reliable sort."
In view of these principles and the dictates of justice, Judge Clark reversed the judgment against Rothschild and remanded the case for further proceedings, in accordance with the forms of law. But the victim of the murder was a lone and defenseless woman, who had but recently taken up her abode in the community. The circumstances of the crime were exceedingly aggravating and revolting, and so strong was the prejudice and indignation of public senti- ment against the criminal that the technicality, as it was called, of the decision which delayed the execution of public vengeance met with public disfavor and, no doubt, contrib- uted largely to the defeat of his deserved renomination for the office he held - the result of a mistaken public opinion.
361
A. T. WATTS.
A. T. WATTS.
Arthur Thomas Watts, one of the judges of the Court of Commission of Appeals, was born in Covington County, Mississippi, on the 31st of August, 1837. His parents were natives of Georgia, but settled in Mississippi prior to · the organization of the State government, and in 1841 re- moved to Texas and located in Polk County. Arthur received his education at Zion Seminary in Mississippi, and read law under the supervision of Hon. John E. McNair, a prominent judge of that State. He afterwards joined his father's family in Texas, and was admitted to the bar in Polk County in 1859, when he began the practice of his profession; but when the war began in 1861, he returned to Mississippi and enlisted in the Sixteenth Mississippi Regiment, in which he served as a private during the entire continuance of hostilities, in the Army of Northern Vir- ginia. He was with Stonewall Jackson during his celebrated campaign in the valley, and shared in all its glorious victo- ries. He was wounded at the second battle of Manassas, and again at Spottsylvania Court-house, on the 12th of May, 1864.
At the close of the war he returned to Texas and resumed the practice of law. The result of the war had swept away his means, and he found himself in necessitous circum- stances ; but his energy and determination overcame the difficulties which surrounded him, and success crowned his professional efforts. He was a young man of great per- sonal popularity, and his ability being promptly recognized, he soon obtained a large portion of the practice in his judi- cial district.
In 1872 he was elected a member of the Thirteenth Legislature, and participated vigorously in the summary
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BENCH AND BAR OF TEXAS.
repeal of the obnoxious laws which had been fastened upon the people of Texas by the corrupt and oppressive policy of Radical rule, and in the new legislation necessary to re- store their liberty to the people and place the State in its former orbit of freedom and prosperity. He deserved particular credit for his part in effecting an arrangement with the Texas and Pacific Railroad, by which land grants were substituted for the enormous debt due by the State to that corporation, and thereby relieving the people from an intolerable burden of taxation.
In 1874 he removed to Weatherford, where he enjoyed a fine practice, but, in 1878, sought brighter prospects in Dallas, where he had many friends and a more ample field. In 1880 he was appointed one of the judges of the Court of Commission of Appeals, which position he still holds and adorns by his energy, ability and devotion to its duties.
363
W. S. DELANEY.
W. S. DELANEY.
- -
William Shelby Delaney is a native of Kentucky, and was born in Union County on the 18th day of September, 1825. His father, Henry Field Delaney, was a native of Virginia, and at one time a prominent lawyer at the Kentucky bar; but abandoned his profession and became a noted clergy- man of the Cumberland Presbyterian Church. His mother, whose maiden name was Rhoda Prince, was a native of Princeton, Kentucky, a town founded by her father and named after him. He was one of the first three associate judges of Caldwell County.
The subject of this sketch was afforded good advantages, and graduated at Cumberland University at Lexington, Kentucky, in 1847. His scholastic attainments were of a high order, and he was elected professor, first of mathe- matics and then of ancient languages in that college. While thus engaged he devoted his leisure time to the study of law, and on being admitted to the bar in 1852 he resigned his professorship and began the practice of his profession. In 1854 he removed to Memphis, Tennessee, and having subsequently located in Nashville, he removed in 1860 from that place to Columbus, Texas, where he resided in the enjoyment of a large and successful practice until his promotion to the bench. As a lawyer Judge Delaney has been remarkably successful. His fine literary education and scholarly attainments enabled him to grasp the prin- ciples of law with a scientific comprehension, and to clothe his arguments in cogent and logical terms. While devot- ing himself to the mastery of the sterner and more solid features of legal science he has cultivated the embellish- ments of the profession, and establishes his position by a scholarly analogy and purity.
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BENCH AND BAR OF TEXAS.
He is a man of quiet and sedate manners, totally devoid of those traits which cherish a fondness for notoriety and a love of display. His mind is cast in the mould of a classic simplicity, and he delights in communing alone with the genius of his profession. The didactic qualities which he acquired and cultivated as an instructor in the chair of science and literature make him an excellent expounder of the principles of law, as verified by the scientific and logi- cal statements of his decisions. But while he is imbued with a spirit of studious inquiry, and is devoted to his profession, he has not sacrificed to its exacting demands the advantages presented to him by other spheres of life. While worshiping at the shrine of Mercury, he has also propitiated the favors of Plutus. He has been a success- ful planter and man of business, and the reward of his energy is a handsome competence.
In private life his habits conform to his professional ethics, and his refined and unobtrusive, cheerful, yet reserved social qualities commend him as a man of pure and solid character, and his integrity, uprightness and learn- ing make him an excellent judge.
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E. B. TURNER.
E. B. TURNER.
Ezekiel B. Turner, judge of the United States District Court for the Western District of Texas, was born in the town of Putney, Windham County, Vermont, on the 24th of May, 1825. His parents were also natives of that State, in which his ancestors had settled at an early period, and belonged to the sturdy yeomanry of the country. His education was obtained in the common schools of his native town and in Townsend Academy, which he attended a short period. He studied law in Michigan with his brother, J. W. Turner, and was admitted to practice in the courts of that State in September, 1848. He afterwards held the office of justice of the peace, and was subsequently elected prosecuting attorney for the county of St. Joseph, Michi- gan.
In 1853 he emigrated to Texas and settled first in Will- iamson County, where he remained one year, and then removed to Austin and formed a copartnership in law, first with S. G. Sneed, Esq., and subsequently with A. J. Iam- ilton and F. W. Chandler, which continued until the out- break of the civil war.
Actuated by the sentiments inspired by his nativity and early training, he was opposed to a dissolution of the Union, deplored the policy of secession, and took no part in the war. With these views he naturally affiliated with the Republican party, and in 1866 was appointed by Presi- dent Grant to the position of United States attorney for the Western District of Texas, which he resigned to accept the office of attorney-general under the provisional gov- ernment, and held this position during the period of recon- struction.
In 1871 he was appointed judge of the Thirty-second
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Judicial District of Texas, and held this office until the judi- ciary was made elective, under the Constitution of 1875, when he was elected by the people to the bench of the Sixteenth Judicial District, and was commissioned by Governor Coke in April, 1876. While this was a Democratic district, he was elected as an independent candidate over the regular Democratic nominee by a handsome majority. The district was subsequently changed, and Travis County, which formed a part of the Sixteenth District was declared a special dis- trict, and jurisdiction conferred upon its courts to try all cases of perjury to land titles. Under this law most of the celebrated cases known as the " Texas Land Perjury Cases " were tried before Judge Turner in the District Court of Travis County, and his scrutiny and stern enforcement of the law had a salutary effect in putting a stop to perjury of land titles in the State.
In 1880 he was appointed by President Hayes to the of- fice of United States judge for the Western District of Texas, which position he still holds. He was the first United States judge that decided that the act of Congress known as " The Civil Rights Bill," was unconstitutional. This decision was made in the case of United States v. Washing- ton, reported in 4 Woods Circuit Court Reports, 349, and was afterwards confirmed by the Supreme Court of the United States in cases involving the validity of the first and second sections of the act of March 1st, 1875, and reported in 109 United States Reports.
Judge Turner has the character of being an excellent judge of law and a man of the staunchest integrity. He was mar- ried in 1850 to a daughter of Charles Dodge of Michigan, and this excellent lady, who has so long shared and inspired the brighest sunshine of his life, forms one of that circle of noble matrons whose grace and accomplishments adorn the society of Austin.
John W, Harris
CHAPTER VIII.
THE STATE BAR -EMINENT LIVING LAWYERS -JOHN W. HARRIS-J. E. SHEPARD - VOLNEY E. HOWARD - FRANK SEXTON -J. H. REAGAN - T. N. WAUL -W. P. BALLINGER -J. W. THROCKMORTON -JOHN HAN- COCK -JOHN SAYLES-N. G. SHELLY - R. B. HUBBARD - A. J. PEELER - WM. M. WALTON -JACOB WAELDER - A. W. TERRILL -GEORGE GOLD- THWAITE - N. W. BATTLE - M. D. HERRING - CHARLES STEWART- ALEXANDER WHITE -- THOMAS HARRISON - J. M. ANDERSON - W. S. HERNDON.
JOHN W. HARRIS.
This distinguished lawyer was born and reared in Nelson County, Virginia, of which his parents were also natives. His ancestors for several generations were sturdy and inde- pendent farmers of the Old Dominion. The family came from England at an early day and settled on the James River, east of the Blue Ridge, and for the most part within sight of the mountains. Like ali of the old English fami- lies of Virginia, the Harrisons were proud of their origin, and devoted to the interest of the mother country until its oppressive measures kindled the fires of liberty upon their altars; and when the war for independence broke out they furnished many a valiant soldier to the Continental army.
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