USA > Texas > The bench and bar of Texas > Part 40
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He is a man of staunch integrity, of conscientious pur- pose and ardent convictions, and his talent, energy and perseverance have gained him the reputation of being one of the most invincible practitioners at the Texas bar.
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Nicholas William Battle.
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N. W. BATTLE.
N. W. BATTLE.
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Nicholas William Battle was born in Warren County, Georgia, on the 1st day of January, 1820. His father was a Methodist clergyman of reputation, who removed to Georgia, when a young man, from Nash County, North Carolina, where his ancestors, who were of French origin, settled prior to the war of the Revolution, one of whom was captain of a company in the Continental army. The subject of this sketch enjoyed liberal advantages in the best country schools of Monroe County, Georgia, in which he was reared, and in 1842 graduated at William and Mary College, in Virginia, where he also took the course of law. Returning to Georgia he continued his legal studies under the supervision of Judge A. M. Spae, an able jurist, and in 1844 was admitted to the bar at Macon, and entered upon his practice at Forsyth. He soon attained an enviable position at the bar, which increased his aspirations and stimulated his ambition for professional -achievements. The prospects of Texas charmed his view, and in 1850 he removed to Waco, which has ever since been his home.
The Texas courts thronged with litigation of land matters, and criminal cases arising from a spirit of specu- lation and the heterogeneous society of a new and rapidiy populating country, afforded him an ample field, and he soon acquired a large practice, and stepped into the line of professional promotion. In 1854 he was elected district attorney, and was re-elected in 1856. In 1858 he was elected judge of the district, but resigned his position in 1862 and entered the Confederate army as lieutenant- colonel of the Thirtieth Regiment of Texas cavalry, and served in the field during the remaining period of the war. He was an excellent disciplinarian and a gallant officer who
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enjoyed the highest respect of his superiors and invoked on more than one occasion their complimentary official notice.
At the close of the war Judge Battle returned to Waco and resumed his practice. He had always been a State's rights Democrat of the straightest school, a strict construc- tionist of the Constitution, and a nullifier, and while in the main he adhered to his old Democratic faith, he promptly accepted the arbitration of the sword and the new features which it had wrought upon the constitution. He gave up the old Federal Union with the reserved rights of the States, and accepted the permanent supremacy of the national government with its consolidated power, which he deemed revolutionary to attempt to evade.
In 1874 he was appointed by that excellent judge of official competency and merit, Governor Coke, judge of the criminal district comprising the jurisdictions of Waco, Marlin and Calvert, which expired on the adoption of the Constitution of 1876. In this capacity he was highly efficient in enforcing order and suppressing crime in the midst of an abnormal lawlessness arising from the unsettled state of society during that period. It is said that during the time of his incumbency of the district bench combina- tions existed in some of the counties composing his district of a character which threatened to overawe the court and thwart the course of justice, and that he met the threats and menaces of moh law with as much stern defiance and indignation as did Lord Mansfield when, in response to similar efforts to control his opinion in the case of Rex v. Wilkes, that great judge took occasion to make the follow- ing illustrious observations from the bench : -
" I pass over the many anonymous letters I have received. Those in print are public, and some of them have been brought judicially before the court. Whoever the writers are they take the wrong way. I will do my duty unawed. What am I to fear? What mendax infamia from the press which daily coins false facts and false motives. The lies of calumny carry no terror for me. I trust that my temper of mind, and the color and conduct of my life, have given
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me a suit of armor against these arrows. If during this king's reign, I ever supported his government and assisted his measures, I have done it without any other reward than the consciousness of doing what I thought right. If I have ever opposed them, I have done it upon the points them- selves, without mixing in party or faction, and without any collateral views. I honor the king and respect the people ; but many things acquired by the favor of either, are, in my account, objects not worth ambition. I wish POPULARITY, but it is that popularity which follows, not that which is run after. It is that popularity which, sooner or later, never fails to do justice to the pursuit of noble ends by noble means. I will not do that which conscience tells me is wrong, upon this occasion, to gain the huzzas of thousands, or the daily praise of all the papers which come from the press. I will not avoid doing what I think is right, though it should draw on me the whole artillery of libels, all that falsehood and malice can invent, or the credulity of a deluded populace can swallow. I can say with a great magistrate, upon an occasion and under circumstances not unlike, 'ego hoc ani- mo semper fui, ut invidiam virtute partam gloriam, non invidiam, putarem.' The last end that can come to any man never comes too soon, if he falls in support of the law and liberty of his country, for liberty is synonymous to law and government."
" They, the leaders of mobocracy," said Judge Battle, " they would make a Jeffries of me ! They would trans- form the courts of a peaceful State into the bloody assizes of two centuries ago. But I defy their threats on the one hand and scorn their blandishments on the other, as I de- spise the cowards who do their beck and bidding !"
In spite of every obstacle and adverse influence he fol- lowed the track of the law with unswerving steps, left to his successor an unspotted ermine and resumed the practice of his profession without means and with a briefless docket ; but the same energy, perseverance and principles of in- tegrity which had gained him distinction as an advocate and eminence as a judge soon restored his practice and
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crowned his career with additional success, and his repu- tation as a lawyer continues in a brilliant ascendency.
While on the bench Judge Battle decided many important and interesting questions, one of which was the novel is- sue that a free negro could not under the laws of Texas contract for the sale of himself into slavery, and that all such contracts were ab initio null and void. This opinion was affirmed by the Supreme Court in Westbrook v. The State, reported in 24 Texas, 563. He has also been en- gaged as counsel in some of the most important cases that have come before the courts, notably that of Spurlock v. Sullivan, 36 Texas, 511, in which are discussed the rights of intervenors and the question of equitable intervention, and the unreported case of Hough v. Barret, involving the title to three leagues of land in the Brazos valley, which pended nineteen years in the District Court and which he finally gained.
Judge Battle was married in 1846 to Miss Mary Ann Cabaniss, daughter of Hon. E. G. Cabaniss, an eminent jurist of Georgia, who was elected to Congress soon after the surrender, but was with the other Southern members refused his seat, in view of the new and arbitrary system of reconstruction which Congress had at that time determined upon. To the noble qualities and superior accomplish- ments of this lady he attributes largely his professional eminence and success in life.
While it can not be said that Judge Battle is endowed with any extraordinary gifts or special brilliancy of genius, he possesses in a high degree the qualities indispensable to the attainment of eminence in any sphere of life, and with- out which genius is a delusive and oftentimes an unfortunate possession. He posesses a capacity for cautious, pains- taking and indefatigable labor, which, guided by intellectual vigor, a sound judgment and a conscientious purpose, al- ways dives to the depth of investigation, and never fails to bring up the gems of truth and justice from its bottom. Hence his briefs are always searching and well argued. As a judge he was noted for promptness and precision, his
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plain, earnest and cogent style of oratory, which makes him formidable as an advocate before a jury, gave to his charges and decisions upon the bench a clearness of reason and directness of force which always met with a compre- hending response and concurrence in the mind of common sense and conscientious conviction, while his personal amia- bility and suavity of manner lenified the sternness of the judge.
Judge Battle is a Baptist in his communion, but is one of that better class of denominational sectarians who holds the faith with all Christians " in unity of spirit," and in the bonds of fellowship.
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MARCUS D. HERRING.
The subject of this sketch was born in Holmes County, Mississippi, on the 11th of October, 1828. His early associations were chiefly with the Choctaw Indians who were devoted friends to his father and, with the exception of two or three white families, were his only neighbors. In 1836 his father moved to Carrollton and was the first cir- cuit court clerk of Carroll County. He held this position for many years and afterwards served several terms in the Legislature of Mississippi, the House of Representatives and in the Senate. M. D. Herring began his education in the office with his father, in which he early learned the clerical business of the courts and was inspired with the ambition to become a successful lawyer. In 1840, when but twelve years of age, he witnessed the proceedings of an important and exciting criminal trial, which quickened his aspirations and he determined to apply himself at once to pre- paration for the bar, and from that time to the present has devoted all his energies and talents to his chosen profession, in which success has been the sole aim of his ambition. His father was equally desirous that he should be a physi- cian, and offered him the most flattering inducements to adopt the study of medicine ; but he was a boy of self-will and resolution, and nothing could induce him to swerve from his determination, or mar the prospects which he pictured for himself at the bar ; and he argued his convictions so earn- estly that his father finally yielded to his desires, and placed him at school at Judson Institute in Carroll County, under the tuition of Reuben Nason, a friend and classmate of Sergeant S. Prentiss, and who came with him to Mississippi. In 1845, he entered the junior class in Centenary College, at Jackson, Louisiana, and was prepared to graduate in
Mastering
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1847 ; but a majority of his class having been thrown back one year, the minority, of which he was one, through sym- pathy for their fellow-classmates, declined graduation. During the last year of his collegiate course he read law under the president of the colle ge, David O. Shattuck, for- merly a distinguished judge in Mississippi.
On leaving college, and finding his means exhausted, he returned to Carroll County and taught school to enable him to continue the study of law and acquire a thorough prepa- ration for the bar. In 1848 he was admitted to the practice of his profession at Carrollton, receiving his license from Chancellor Cocke, and soon afterwards removed to Shreve- port, Louisiana, where after fitting up a law office in the most meagre and primitive style, he had but five dollars remain- ing, and no friend or acquaintance in the city. In this con- dition, the proprietor of the hotel at which he was boarding demanded that he should pay a month's board in advance. With these terms he could not comply, but the landlord was inexorable, and giving him his last five dollars which settled his bill to that date, with feelings of indignation and without his dinner, he started in search of more generous quarters. On crossing the street he met a physician, who occupied an adjoining office, and told him of his situation and the circumstances that had befallen him. The kind doctor became at once interested in the young stranger and escorted him to a boarding-house kept by a sister of the famous James Bowie, between which and the hotel existed a strong and avowed rivalry. He told her of his poverty- >tricken condition and of his treatment by the hotel-keeper. She was both amused and pleased by his narrative of the circumstances and received him as a boarder on trust ; but the next week, through the kindness of Col. Thomas S. Land, who had served in the Legislature of Mississippi with his father, and who was subsequently one of the judges of the Supreme Court of Louisiana, he received a retaining fee of seventy-five dollars, which he immediately paid to his generous and noble-hearted landlady as the first install- ment for his board. Col. Land continued to interest
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himself in his welfare and afterwards admitted him to co- partnership.
In the fall of 1850, Mr. Herring's health having failed at Shreveport, he started on horseback to Cameron, Texas, in search of a new and more salubrious locality, and dur- ing his journey one of those circumstances occurred which, though slight and apparently without indicative importance, often changes the tide in the affairs of men and fixes human destiny. While passing through Shelby County his horse fell through a bridge, causing him a serious injury which delayed him some time at Shelbyville; and during his con- finement at that place some persons who had been arrested upon the charge of murder were brought to his hotel. He accepted a retainer for their defense at the examining trial, and engaged to defend them at the ensuing term of the District Court. This circumstance caused him to locate at Shelbyville, where he practiced until the spring of 1854, when he settled at Waco, which has since then been his permanent home. While at Shelbyville he extended his practice throughout the old Fifth District, which at that time contained some of the most eminent lawyers the Texas · bar has ever produced, and he often met as assisting or op- posing counsel J. Pinckney Henderson, O. M. Roberts, Wm. B. Ochiltree, Thomas J. Rusk, Thomas J. Jennings, Richard S. Walker and other lawyers of distinction. This field would have been a severe and exacting test of any quality of genius, but Mr. Herring was equal to the demands which the conditions of success made upon him, he stemmed the tide of talent that swept around him and gradually rose to distinction.
When the Civil War began in 1861 he enlisted as a private soldier in one of the first volunteer companies raised in Texas for the Confederate service. He was soon after- wards elected captain and served three years and nine months in the field, chiefly in the Trans-Mississippi depart- ment. At the close of the war he quietly but vigorously resumed his practice at Waco, which he has since extended to all parts of the State, particularly in land litigation and
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criminal cases, in which he has been peculiarly successful. In 1854 he was employed on the part of the defendants in the celebrated suit of Lasseley v. Eliphas et al., in the United States District Court at Austin. In consequence of the interestedness of the presiding judge, John C. Watrous, the venue was changed to New Orleans where the case was argued by Mr. Herring, as leading counsel, before Judges Campbell and McCaleb. The plaintiffs obtained judgment, and an appeal was taken to the Supreme Court of the United States in which, upon bills of exceptions prepared by Mr. Herring, it was argued by Mr. Judah P. Benjamin. This case is reported in 20 Howard, 264, and it is evident that, while Mr. Benjamin was a great civil law and commercial lawyer, he knew nothing of the pecu- liar system of Texas land laws and did not fully compre- hend the character of the exceptions ; and had Mr. Herring who had fought the suit from its inception been employed at Washington the study of the features of the case sug- gests the probability of a different result.
He has been employed generally for the defense in many important and exciting criminal trials. Soon after the war he prosecuted Colonel Meyers, his son David and Wash. Handy for the murder of William Milican at Bryan. The case hinged upon the evidence of a son and brother, Allen Meyers, whose testimony in chief acquitted the defendants, but upon a searching cross-examination by Mr. Herring they were convicted. This was the first conviction for murder that had ever been effected in Brazos County. Afterwards John Milican, brother of William, killed Meyers, and before he could be tried he was killed at night in the streets of Milican. Mrs. Balldridge, a daughter of Meyers, and his son, a lad of thirteen years, were indicted for Mili- can's murder and were vigorously prosecuted by Colonel Hutchinson, of Houston, and other able lawyers, but Mr. Herring effected their acquittal. Early one Sunday morn- ing in the spring of 1870, Eugene Carter, a bright boy of fourteen years, and step-son of General Thomas Harrison, was found murdered in his bed in a store-house in Waco, in which he was employed. There was a light burning in his
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room, and it was evident that it was the work of a burglar. There was no evidence to identify the murderer, but the whole country was upon the alert for the least suspicion, and about three years afterwards a man named Hunnicutt was arrested in Hill County and charged with the crime. He was stationed at Waco as the captain of Governor Davis' police at the time of the deed, and as circumstances somewhat pointed to him, public opinion was pronounced as to his guilt. The trial lasted eleven days and a verdict of guilty was rendered against the prisoner ; but there was great conflict in the testimony and a new trial was granted. When this took place Mr. Herring, who did not believe the man guilty, spoke an entire day in his defense. He was acquitted and his innocence was afterwards univers- ally conceded.
Among the most important reported criminal cases in which Mr. Herring was leading counsel for the defense are James v. The State, 3 Court of Appeals, 437, and Simms r. The State, 10 Court of Appeals, 132. Those parties were twice convicted of murder, and both finally acquitted, chiefly through his strenuous exertions in their behalf.
While Mr. Herring has been highly successful, and has acquired a handsome competency by his practice, he values his reputation far above all his other successes, which is to him a source of pleasure and pride as well as profit. He is a kind-hearted, generous and sympathetic man, and seems to value his attainments and influence chiefly for the oppor- tunities they afford him for doing good. He is conse- quently held in high esteem by his neighbors, as well as by his brother members of the bar. Hon. D. A. Kelley, an old acquaintance of Mr. Herring, says of him: "He has always borne the reputation of a successful lawyer, equally qualified in every department of the profession ; whether in the civil or criminal sphere, whether in the office or forum, whether in court or out of court, he stands in the front rank of his profession as an able and experienced lawyer.
" He is possessed of wonderful energy, perseverance and will power, working day and night in the cause which he has espoused, and has frequently been the means of uprcoting and overturning a strong current of adverse public opinion
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. and set it coursing in the opposite direction. His energy never flags, and no adverse circumstance, no matter how forbidding or apparently discouraging, seems ever to break his aim or thwart his purpose. He pursues his conceived duty with all the ardor of a devotee, equally regardless of opposition, whether fostered by public or private opinion.
" He is a speaker of considerable magnetic power, and always has something good to say, which he clothes in chaste, forcible and flowing language, and is equally entertaining in private as a conversationalist as he is in public as a speaker.
"He has a heart full of sympathy and charity, always ready to encourage those who are afflicted or in distress, and always listens with patience and credulity to the story of those who have been wronged or who have encountered mis- fortune ; so much so that he has often suffered pecuniarily at the hands of the deceitful and unworthy.
" No widow or orphan ever applied to him without relief and no poor person was ever turned away because of his in- ability to secure a cash retainer. He has often defended persons charged with crime without the hope of reward, having been imbued and impressed with the story of their innocence."
In addition to these sterling personal qualities he pos- sesses mental traits peculiarly adapted to the requirements of his profession, which he has cultivated by systematic training and close application. He possesses an inquisitive and highly analytical mind and keen powers of perception, which penetrate the depth of every question of law or fact that engages his attention. He is consequently always pre- pared for any turn which a case may take, and therefore fortified against surprise or novel development.
He was married at Waco in 1856 to Miss Alice G. Doug- lass, a lady of culture and the most amiable qualities, who has been to him a faithful helpmate in promoting his aspi- rations and encouraging his endeavors. He is a zealous member of the Baptist Church, and an enthusiastic Mason, and one of the pioneers of the Odd Fellows' fraternity in Waco, in which order he has held the highest honors in the State.
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CHARLES STEWART.
Charles Stewart is a native of the State of Tennessee, and was born in the city of Memphis, on the 30th of May, 1836. His father, who was of Scotch origin, was a native of Culpeper County, Virginia, and was by trade a house carpenter; but he was a man of great intelligence, remark- able especially for his knowledge of political history, and being a forcible and fluent speaker, was often engaged in discussing the political questions of his day, especially in advocacy of the doctrines of the Whig party, of which he was an ardent supporter.
Charles Stewart came to Texas with his father, who set- tled in Galveston in 1845. His educational opportunities were only such as were afforded by a private school in the coun- try; but he was early inspired with a desire and determina- tion to promote his condition in life, and having inherited in a marked degree the natural gifts of his father in fluency of oratory and fondness of discussion, he directed his aspirations towards the former.
In 1852 he began the study of law in the office of James W. Henderson, and completed his preparation for the bar under the supervision of Messrs. Ballinger & Jones, of Galveston. In 1854, when not yet eighteen years of age, he was licensed by the Supreme Court and began the prac- tice of his profession at Marlin, where he soon attained a high stand at the bar, and such a degree of popular esteem and confidence, that, in 1856, he was elected district attor- ney of the Thirteenth Judicial District, and was re-elected in 1858, as a just recognition of his efficiency.
While devoting all his energies to the duties of his pro- fession and official station, Mr. Stewart was a staunch advo- cate of Southern views in regard to the questions which
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agitated the public mind at that period, and was a member of the convention of 1861, in which he voted for the ordi- nance that withdrew Texas from the Federal Union, and sealed the rectitude of his intentions and conscientious views by a prompt personal acceptance of the gage of battle. He served faithfully during the war, first in the Tenth Regi- ment of Texas infantry, and afterwards in Baylor's Regiment of cavalry, and at its close as promptly accepted the inev- itable attributes of the issue, and without remorse resumed the duties of his profession.
In 1866 he removed to Houston, where he has since re- sided, and of which he was, in 1874, elected city attorney. He was chosen to represent that district in the State Senate in the Sixteenth and Seventeenth Legislatures, and distin- guished himself by his strenuous and able efforts in the interest of free public education. In 1882 he was elected to the Forty-eighth Congress, and was re-elected to the Forty-ninth Congress in 1884, of which he is now a brill- iant and rising member. His report from the Committee on Foreign Affairs, in the House of Representatives of the Forty-eighth Congress, in regard to commercial relations with South and Central America is an able document, and in the light of subsequent and present events highly impor- tant and interesting. Having submitted a substitute bill embodying the views of his committee as to the most prac- tical method of promoting their relations, Mr. Stewart pre- sented in his report an exhaustive statistical exhibit of the value of the commerce of these countries, and its unequal distribution between the United States and other countries, and having referred to the statements of intelligent travel- ers that, " from the little pin with which the lady fastens her ribbons to the grand piano with which she enlivens and enchants the hearts of her household; from the tiniest thread and tack, and tools needed in the mechanical arts, to the largest plows and harrows, and other agricultural imple- ments and machines required on the farm ; the wares and fabrics, light groceries and delicacies in common demand ; the drugs and medicines in the shops of the apothecaries ; the liquors and wines of the saloons; the stationery and
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