USA > Texas > The bench and bar of Texas > Part 30
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" Let us further suppose that the State Treasurer had re- fused to sign the bonds, which he was required to do by the charter of the company, and had also refused to obey a mandamus of the court to compel him to sign them, then, why should not he, like the Controller, be attached and imprisoned for contempt of court?
" Let us further suppose that the Governor of the State had refused to sign them, and had also refused to obey a mandamus requiring him to subscribe his name as Governor to these bonds - would he not, for contempt of court, have been arrested and sent to jail with the Treasurer and Controller, who were already there ?
" We must suppose, that if such were the law, the Gov- ernor, who was the chief executive officer of the State, whose main duty it was to see that the laws were faithfully executed, would, as a good law-abiding citizen, have gone meekly to jail.
" Let us also suppose that these three high officials, after trying for a time the gloomy walls of a prison, should upon consultation have determined that it was better to execute the bonds, and thus preserve at least their own freedom -
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and they had executed them accordingly. Would this have ended the trouble? No! for the Legislature might still re- fuse to make an appropriation to pay the bonds. What then must be done? Would the judge of the District Court of Travis County have awarded a mandamus to the Legislature to compel that body to make an appropriation adequate to meet the semi-annual interest and the annual sinking fund?
" In case of refusal, would he have sent the members of the Senate, and those of the House of Representatives, con- stituting the officers of the legislative department of the government, to the Austin jail, to which he had recently consigned the Governor, Treasurer and Controller of the Executive Department ?
" Would not this have amounted to a combination of the powers of the legislative, the executive and the judicial departments in one man - the judge of the District Court of Travis County ? And this Mr. Madison, the great ex- pounder of constitutional law, said was the very definition of tyranny.
" The position becomes absurd, when it is borne in mind that the members of the executive department and those of the Legislature, are elected by the people, while the judge of the District Court of Travis County, awarding the mandamus, obtained his office by the appointment of E. J. Davis, at that time the Governor of Texas."
In this connection it may be remarked that this district judge belonged to that numerous class of officers, then com- monly denominated carpet baggers. How humiliating to the Governor ! How galling to the people of Texas ! would have been the exercise of such powers, by such an officer! !
The great success which Mr. Harris has attained in the practice of law and in all the affairs of life may be largely attributed to his preparatory course and early training. He made success the goal of his youthful ambition, and kept that one object constantly in view. He was taught at an early age to rely upon his own exertions, and he recog- nized that his attendance at the university was the great
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JOHN W. HARRIS.
opportunity of his life. His limited means precluded him from those indulgences which too often dissipate the efforts of genius, and mar both the advantages and prospects of the student. His observations led him to note that those students who enjoyed the prospect of large inheritances, and who were prodigal in their expenditures, made the slowest progress in their studies; and he learned to appre- ciate the advantages of the retraints which poverty places upon the diversions of pleasure. He thus acquired the habits of labor and self-denial without which the highest ambition and the brightest genius will fail to reach the goal of success, especially in the exacting field of law.
These qualities, thoroughly wrought into his character, he brought to bear upon the study and practice of his profes- sion. His first step is to thoroughly learn the facts of his cases and then to study the applicable law. When this is done and he is satisfied with the merits of his side of the controversy, he enlists every energy in the cause and iden- tifies himself with the interests of his clients.
He is more of what may be called a text than a case law- yer. He relies more upon the principles of law than the power of precedent, which can not always comprehend the varied colors and features of fact, or gather them within the broad folds of parity or analogy. While he is care- ful and painstaking in the written preparation of his cases, he is remarkably forcible and effective in oral argument, both before the court and the jury, and it has been the con- stant practice of his associates to concede to him the privi- lege of making the closing argument.
His social characteristics are no less cultivated than his professional attributes. He is a man of courteous manners, refined ethics, and engaging address. Kind-hearted, gen- erous and keenly sensitive to the respect due to others and to himself, he blends the cultured uniformity of the well- bred Virginian with the more intensified qualities of the true Texan.
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JAMES E. SHEPARD.
This venerable lawyer and excellent gentleman was born in Matthews County, Virginia, on the 24th of April, 1817. His father Seth Shepard, a native of Connecticut, was of Scotch descent, and was an eminent physician. His early advantages were liberal, and he was educated at Miami University, at Oxford, Ohio. He began the study of law in 1836 with W. R. Beaty at Greenupsburg, Kentucky, where he was residing with an uncle, and was graduated from the law department of the Ohio University at Cincin- nati. He was admitted to the bar at Flemingsburg, Kentucky, in the spring of 1838 and entered at once upon an encouraging practice. In November, 1846, he re- moved to Texas and located at Brenham, in Washington County, where he has since chiefly resided. He formed a copartnership at Brenham with his brother, C. B. Shepard, which continued many years, and until the latter retired from the practice. He then associated with him several young men, some of whom have attained distinction at the Texas bar.
He was a member of the Legislature of Texas in 1850, and served a subsequent term prior to the war. . In 1861 he was a member of the convention which severed the rela- tions of Texas with the Union, and, being an ardent Southerner in his views and sentiments, he promptly en- listed in the service of the Confederacy, and was made lieutenant-colonel of the Sixteenth Regiment of Texas infantry. While still at the head of his regiment he was elected in 1864, without his knowledge,. judge of the Third Judicial District, and accepted that position.
He was a member of the reconstruction convention in 1866, and was during that year re-elected, without opposi-
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JAMES E. SHEPARD.
tion, to the district bench, but was removed in 1867 by the military power as an impediment to reconstruction. He was then appointed dean of the law faculty of Bayler Univer- sity and held that position for several years, and until the suspension of the law department of that institution, which was necessitated by the scanty attendance occasioned by the stringency of the times in financial matters.
In 1873 he removed to Austin and formed a copart- nership in the practice of law with J. G. Searcy, which continued about five years, after which he returned to his old home at Brenham, where he is still residing and prac- ticing his profession with a vigor and activity rarely found in one of his years. Judge Shepard is a man of great integ- rity, firmness and independence of character, and as a judge was able, upright and pure, readily comprehensive of every point upon which a proposition hinged, liberal in his in- terpretation of law for the advancement of justice, and watched the poise and inclinations of its scales with a conscientious eye.
He had in early life acquired a thorough knowledge of the rudiments and fundamental principles of law, and wove them into the elements of his own judgment and percep- tion. As a lawyer he is full worthy of the distinction he has enjoyed and of the success with which his efforts have been crowned. His mind is active, vigorous and steady in its grasp of the substance of a proposition, and he never loses sight of the points upon which the merits of a question hinge.
Another source of his professional strength is his capacity for captivating the minds of the jury; his methodical ar- rangement of facts, his forcible illustrations, earnestness of manner, boldness of assault, and complacent, though scathing rejoinder and repartee gain for him both the attention and the favor of the jury. He knows how to avail himself of every consideration which tends to awaken the feelings of sympathy ; not, however, by specious declamation or the cunning arts of suasion, but by an appeal to the nobler passions of men, their sense of justice, their sentiments of moral rectitude, and to the just and full .
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comprehension which he quickens in the minds of his hear- ers by his accurate and lucid interpretation and sound judgment. Ex-Governor Roberts lately told his law class in the University of Texas, that Judge Shepard was one of the few lawyers in the State whose statement of a case was an argument in itself, and it may be said of him that he is one of the few whose overflowing humor and overweening propensity for ludicrous anecdote and badinage never im- pair the most implicit faith in his sincerity, nor weaken the force of his most subtle and gravest arguments. It was not with him as Dr. Johnson said it was with Shakespeare, an irresistible fondness for a mere quibble which allured him from the dignity and profundity of his disquisitions, nor " the Cleopatra for which he lost the world and was content to lose it;" but it is the aroma which springs from the blossoms of his genius and the flowers of his philanthropy ; and blending the force of his wit with the power of his wisdom he is at all times a formidable adversary. He is also one of the few lawyers who have maintained a high position at the bar and upon the bench with a divided alle- giance to their profession. In addition to his successful practice he has been engaged in mill enterprises and irri- gation schemes- rivals which the jealousy of law would not have tolerated in an ordinary mind.
Some of the most important cases argued by Judge Shep- ard, and which are illustrative of his professional qualities, are Hall v. McCormick, 7 Texas, 269, which involved the question of the necessity of presenting to an administrator the claim of a judgment which has lost its lien; and Atkin- son v. The State, 20 Texas, 522, in which he discussed the nature and application of the ingredients which distinguish manslaughter from murder.
In private and social life Judge Shepard is noted for his kindness and congeniality. His manners are courteous and suave, and indicate a breast full of the noblest impulses. He was married in 1839 to Miss Martha J. Andrews, of Flemingsburg, Kentucky, a lady in whose heart every noble sentiment finds a reciprocity, and with whom he has enjoyed a long and felicitous union.
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VOLNEY E. HOWARD.
VOLNEY E. HOWARD.
The subject of this sketch was a native of the State of Maine, where he received a finished education and was thoroughly prepared for the profession of law. He emi- grated to Mississippi about the year 1830, and located at Jackson, where he entered upon his profession, and rose so rapidly in the confidence and esteem of the bar and people that in 1837 he was chosen reporter of the decisions of the High Court of Errors and Appeals.
His reports are distinguished for lucid and systematic arrangement, and his captions and syllabuses are compre- hensive, clear and exact. He also took a prominent part in the politics of the day, and was for several years editor of The Mississippian, a newspaper published at the capital and the leading Democratic organ of the State. He was a vigorous and caustic writer, and attacked with scathing re- buke and sarcasm every measure which he deemed false to the interest and welfare of the people, while he, with in- veterate alacrity and eloquence advocated the true princi- ples of his party. His paper wielded a great influence throughout the State, and the force and ability with which he inculcated his views impressed them deeply upon both public policy and private enterprise.
Mr. Howard is a man of extensive culture and a lawyer of great ability, while the eminent traits which adorn his character have rendered him at all times popular with the people and have given him everywhere a high profes- sional, political and social standing. Like Mr. Prentiss, he came to Mississippi without means and without friends, and with the suspicion and prejudice which at that time ex- isted in the minds of the Southern people against all natives of New England staring him in the face, and which nothing
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but the most amiable character, the most upright conduct and eminent merit could have so soon and so completely dispelled as to admit him to the full confidence and to the warmest support and patronage of the people.
In the year 1845, while in the meridian of his profes- sional success and popularity in Mississippi, Mr. Howard was allured by the spacious fields of the young republic of the West, and removed to San Antonio, Texas. Here his abilities were soon called into the public service, and he was chosen a member of the annexation convention, and took an active part in framing the Constitution of the State. He was strenuously opposed to the introduction of any novel and experimental features in the organic law, or any which savored of class legislation. He opposed the clause excluding ministers of the gospel from political office, and likewise any extension of the liberty or license of the press. In his opposition to the latter measure he said : -
" It is easy to indulge in declamation upon liberty, but to understand the principles of liberty, and to know the measures necessary to its security, is a somewhat different matter. Sir, what is the liberty of the press? We have heard a great deal said about it here, but no one has at- tempted to define it. I will not give you my own crude definition, or the speculation of my own views, but those of the wisest sages, of the most enlightened jurists and statesmen. The liberty of the press, then, is defined to be the right to publish our sentiments and opinions, unre- strictedly, being afterwards responsible for the abuse of that right. That is the liberty of the press, and there is not one jurist or statesman who has defined the liberty of the press as the right to publish without responsibility. It would be extraordinary. One of the principal objects of government is to protect the liberty of the person, and property. But would the government be perfect, would it answer the ends for which it is created, if it did not protect reputation and character also? Are we to say that repu- tation is less dear than property ? To a high-toned man it is dearer than life itself.
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VOLNEY E. HOWARD.
" We have heard a good deal of declamation about the antiquated doctrines of the common law, and the tyranny of English decisions in relation to the press. It comes with a very poor grace from Americans. The liberty of the press, like almost all the principles of liberty, is the growth of English culture. It first took root in English soil. When printing was first discovered, it was considered entirely an affair of state, and its regulation was confined to the crown. This jurisdiction in England was in process of time placed in the Star Chamber. There it remained until the Revolution and the Long Parliament of 1641, in the time of Charles the First, where it was assumed by Parliament itself, which exercised it until the restoration of Charles the Second, soon after which the censorship was revived by an act of Parliament, which continued in force until the year 1694. But in the meantime the English mind became aroused upon the subject, and the act was allowed to expire by its own limitation. Upon that nega- tive basis the freedom of the press rested, and thus it remained, until the passage of the act which gave juries the right to determine the fact and the law as in other cases. The rights of the press were freely discussed and defined upon the trial of the publisher of Junius, and more recently in the speeches of Erskine, some of which, for variety and purity of principles, for profound thinking and masterly eloquence, are unsurpassed by anything of the kind since the days of Cicero. And what were the principles estab- lished by him? For what principles did Junius contend? That every man in the discussion of public affairs had the right to publish what he should think proper, being after- wards responsible for the abuse of the privilege. Thus stood the right prior to the American revolution. Now, what is our own history upon the subject? When the American Union was framed, the English principles upon the subject of libel were the principles of this country. In 1798 that measure occurred which cut so large a figure under the administration of John Adams, of punishing editors for their comments upon the conduct of the Presi- dent, members of Congress, and officers of the government.
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And here let me remark that it was not so much the exer- cise of the power, as the odious manner of its exercise, which produced excitement. Jefferson opposed it, and rallied around him what was then called the Democratic party. Now, for what principle did Jefferson contend? For the right to publish whatever a man pleases, without any check? Did he say that the liberty of the press ex- cluded the idea of responsibility? I have never seen from the pen of Jefferson the expression of any such senti- ment. There has never been an intimation in the whole course of the history of the subject that a man should have the right to publish what he pleases without being afterwards responsible. It has indeed been constantly . contended that no censorship should be exercised over a man as to what he should publish; but if he should publish what is improper or injurious, it has been unani- mously admitted that he should be held responsible. Thus for the principles of the English law. American principles go a step further, and Mr. Jefferson, when he went into power, contended that ' in all prosecutions for the publication of papers investigating the official conduct of officers, or men in a public capacity, the truth thereof may be given in evidence.'
" But with regard to private life a different principle has been maintained by every American statesman of any in- fluence. To that extent I will go. I would propose to amend by adding, after the word ' evidence,' the follow- ing: 'But in other cases the truth shall not avail as a defense, unless published from correct motives and for pur- poses of public good.' What is the only difference here ? One party contends that in private affairs the truth should be published at all times, without regard to public good or inconvenience, and that if the truth is made out, it should be ample protection. Now I deny that there is any such principle known to the law. I maintain that it would be destructive of the liberty of the press itself; for liberty means restraint - the protection of the right and the re- straint of the wrong. Now, is it right, under all circum- stances, that the affairs of private life should be published
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to the world? Is it right that innocence and misfortune should be needlessly held up to public scorn and ridicule, and their fortunes in life perhaps forever blasted by an impudent caterer for the love of slander in- herent in the human breast? I look upon such a person as an assassin in the dark, too vile to move in the face of day. Discuss public affairs as fully as you will; handle public men with what severity you choose ; subject them to the keenest scrutiny; but let the liberty stop there. If an in- dividual is guilty of a great outrage, it may be necessary and beneficial to the public to publish the facts ; but in such cases ample protection is afforded. It is an old adage, and a true one, that "' the truth may not be spoken at all times ; ' there are many things that need not be told. I say, then, that the government which fails to protect character from unjust and unprovoked aspersion is as imperfect as one that fails to protect life. The one is as dear as the other, and ought as much to be placed under the protecting shadow of the law. By nothing we can do here, could we hope to prevent the licentiousness of the press to any great extent. But I am not willing, in the fundamental law of the land, to offer a reward for licentiousness. I would at least incul- cate a moral ; whether it can be practically enforced or not, is no business of ours. The danger to the people, and to the press itself, is from its license. There is no adequate remedy, but this is the only one in our power. It is not my purpose to declaim here about the glorious privileges of the press; God knows it has privileges enough. And many a man, while declaiming in the name of Democracy, has stabbed liberty to the heart. Who were louder in eulogiz- ing liberty than Robespierre and Marat? yet who did more to sap its very foundation in Europe ?
" Let us understand the import of the principles which we are adopting. The article, as it stands in the report, leaves it to the Legislature to say whether or not it shall be competent to permit the truth to be given in evidence, in case of publications relating to private affairs. I propose to control the Legislature in that respect. I think some re- straint would be salutary."
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Soon after the adjournment of the convention Mr. Howard was elected to the Senate of the State, and in 1849 was chosen to represent the Western District of Texas in the United States Congress, in which he took an active part in the interest of the Missouri Compromise and other im- portant measures which were at that time agitating the waters of national politics. At the expiration of his Con- gressional term, in 1852, he was sent by the President of the United States to California as an agent to settle land claims and other matters, and has never returned to Texas ; but, having settled there, has acquired much additional re- putation in his profession.
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F. B. SEXTON.
F. B. SEXTON.
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Franklin Barlow Sexton was born in New Harmony, Posey County, Indiana, on the 29th of April, 1828. His father was a native of Connecticut and was a descendant of one of the old families of that State. While in the tenth year of his age he removed with his father's family to San Augustine, Texas, where his father died in 1841 and left him in the sole care of his mother. She was a lady of deep and devoted piety and reared him in the strictest and most careful manner, and to her he owes all the inspirations of his youth and perhaps the achievements of his after years. His educational advantages were good, and he graduated at the Wesleyan College, San Augustine, Texas, in 1846. He afterwards served a short apprenticeship in a printing office, and then studied law in the office of J. Pinckney Henderson and O. M. Roberts. Having received a thorough legal training under the supervision of these distinguished gentlemen, who were at that time partners, he was admitted to the bar in 1848, and immediately began the practice of law at San Augustine, and soon acquired a professional reputation which grew to a high standard of eminence.
The teachings of his mother, who was a Georgian, his education and associations, early imbued his mind with the warmest Southern sentiments and staunch Democratic principles, and he accepted the alternative of secession pre- sented by the " irrepressible conflict " with all the enthus- iasm of his nature. In 1861 he entered the Confederate service, and during the same year was elected to fill a vacancy in the Texas Senate, but did not return in time to take his seat. In 1862 he was elected to the Congress of the Confederate States, and was zealous in his support of all measures which promised to promote the Southern
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cause and bring triumph to the Southern arms. He was ardent and unswerving in his devotion throughout the war to the principles which he cherished, and at its close, hold- ing fast to his honor and dignity, he promptly accepted the inevitable consequences of its result, and returned to the practice of the law at San Augustine where he again engaged in a large practice. In 1872 he removed his office to Mar- shall, where he has since continued to reside in the enjoy- ment of one of the first legal reputations in Eastern Texas.
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