USA > Texas > The bench and bar of Texas > Part 6
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On retiring from the bench Judge Rusk resumed his practice, and took his place at the head of the bar of the Republic ; but while he was a lawyer of sound judgment, of a clear perception of right and wrong, and of a deep sense of justice, his abilities as a statesman and as a leader of men were pre-eminent, and in 1843 he was again called to public service, and was appointed brigadier-general of militia, an office which conferred upon him almost unlimited
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power in the Republic. He held this position one year, and then devoted his energies to the annexation of Texas to the American Union, of which he was one of the first and most zealous advocates. He was elected a member of the Convention of 1845, which framed the Constitution of the State, and was unanimously chosen president of that body. The first Legislature of the State elected him in March, 1846, to the Senate of the United States, in which he continued to serve his country with unswerving fidelity and pre-eminent ability to the time of his death. He held a proud and influential position in the Senate, and was for several terms at the head of the Committee on Postal Affairs. It is said that the President offered him the position of Postmaster-General and he declined it. During the session of 1855 he was president pro tem of the Senate, and discharged the duties of the chair with a dignity, im- partiality and ability which gained for him the most enviable parliamentary laurels, and deepened the respect in which he was held by the members of that august assembly. He was one of the most popular members of the Senate. He was trusted, honored and beloved by all parties ; and while he rarely delivered a set speech, his quiet and unobtrusive manners and unwearying watchful- ness of the interests of his constituents availed them more than all the powers of oratory could have achieved.
Judge Rusk was exceedingly social and domestic in his habits, and it was, perhaps, this fondness for the retirement of home life which caused him so often to resign or decline the offices of honor and trust which were offered him or conferred upon him. He was warm in his friendship, and devoted and constant in his attachments, while his patriot- ism was the ruling passion of his life. But the loss of his wife, whom he married in Georgia, and who had shared with him all the vicissitudes of his career, induced a fatal despondency which, aided, perhaps, by other causes, drove him to the desperation of suicide, and he died by his own hands, in the City of Washington, in 1857.
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JOHN HEMPHILL.
JOHN HEMPHILL.
The professional minds of judges and lawyers may be divided into two separate and distinct classes, which may be aptly designated, respectively, the perceptive and the memorative. To one class belong those whose legal knowl- edge and perception depend upon memory, and are subser- vient to a vague medley of general precedents and author- ities which must be invoked on all occasions when it becomes necessary to grapple with great and important questions. To this class usually belong those whose powers of perception have never been whetted by close and con- tinued application, and always those who are deficient in the organs of analysis and abstraction.
The other class comprises those who depend chiefly upon their own conscious resources, who combine and embody the principles of law with their own perceptions, and mingle them with the elements of their own judgment. Like Lord Thurlow, they care not so much " how a case was de- cided, as why it was so decided." With the first class both judgment and discernment are habitual plagiarisms, while with the other, these are the emanation of their own minds, and they speak as authorities themselves. The decisions of Chief Justice Marshall required no authorities to support them; and these judicial qualities eminently fitted the sub- ject of this sketch for the development of a new system of laws amid circumstances which precluded access to the trodden fields of precedent. His long career upon the bench is characterized by an untiring and successful effort to harmonize the excerpted elements of Texas jurisprudence and endow it with an efficiency that could traverse the scope of justice.
Chief Justice John Hemphill was a native of South
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Carolina, and was a descendent of one of the early settlers of that State. He was educated at Jefferson College, in Pennsylvania, from which he graduated in 1826, and in- mediately began the study of law. He immigrated to Texas at an early period of its history, and was one of the district judges of the Republic. He was an astute and erudite lawyer, and had attained to such eminence in - his profession that upon the resignation of Judge Rusk, in 1840, he was appointed Chief Justice of the Texas Repub- lic, but resigned in 1842 and accepted the position of adjutant-general, and accompanied Gen. Somerville in the unfortunate Mier expedition to capture reprisals for Texans held as prisoners in Mexico. He was a zealous advocate of the union of Texas with the American States, and was a prominent member of the convention of 1845, which adopted the ordinance of annexation, and of the convention that formed the State Constitution. In 1846 he was ap- pointed chief justice of the State and held that position until 1858, when he was elected to a seat in the United States Senate.
Judge Hemphill was one whom nature seems to have especially designed to be an arbiter of the affairs of men. He possessed great candor, and a stern and unbending in- tegrity. An acute and penetrating discernment, a nice discrimination, a clear perception and a sound judgment were predominating faculties of his mind ; and the pursuit and attainment of justice afforded him the highest gratifi- cation. He never tired in the evolution of legal principles, and never failed to establish an equitable adjustment of the most complicated circumstances. It was said of Lord Hardwicke that he had an intuitive perception of the law, and Judge Hemphill possessed this rare gift to an eminent degree. His decisions, which extend through twenty-one volumes of the Texas Reports, are models of legal elucida- tion, and always set forth in a clear and unmistakable light the relations and rights of the parties. His powers of analysis and amplification were peculiarly adapted to the elimination and development of the varied issues of law, equity and fact, often presented by the pleadings under the
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system which obtains in the Texas courts. His conclusions are never arbitrary or sententious ; but are combinations of pure and established elements, wrought together by the gavel of justice, and deduced along clear and logical paths, illuminated by the light of reason and sound judgment. He was fond of the refined and beautiful in literature, and his decisions often glow with a literary polish and elegance rarely found in the dry and hackneyed field of legal diction.
During his long career upon the Supreme bench, Judge Hemphill established many eminent precedents, and settled many questions which had been held in conflict in the older States. He was one of the most learned civilians of his time, and one of his greatest judicial achievements was his success in harmonizing the common and civil-law elements of Texas jurisprudence. He made many novel applications of principles of each system to render them conformable to our polity and suitable to our condition and the state of our society. But he had a strong partiality for the civil law, and during the debates in the convention of 1845, upon a clause of the Constitution allowing trial by jury in all cases, either in law or equity, he said : -
" I can not say that I am very much in favor of either chancery or the common-law system. I should much have preferred the civil law to have continued in force for years to come. But inasmuch as the chancery system, together with the common law, has been saddled upon us, the ques- tion is now, whether we shall keep up the chancery system or blend them together. If we intend to keep it up as it is known in the courts of England, the United States, and many of the States, and in the United States courts that will be established here, we should oppose this innovation ; for I do not know any alteration which could be a greater innovation than to subject all chancery cases to a trial by jury."
He was never married ; yet he possessed none of the pe- culiarities usually belonging to those who grow old in celi- bacy. He was a champion of the widow and the orphan, a staunch advocate and protector of the legal rights of mar- ried women, and invariably gave to the laws regarding them
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a liberal construction, He has been styled in one of the decisions of an eminent judge the great champion of the homestead rights in Texas, and his decisions in regard to exemption, community interests and marital rights embel- lish and eminently characterize the jurisprudence of the State. He thoroughly understood the source and nature of Texas law. His opinions have rarely been disturbed by his successors, and they will always be quoted as high au- thority.
Judge Hemphill was a profound student, a thorough law- yer, a good man, and devoted to his judicial duties. His habits were seclusive, and his reserved manners sometimes gave him the aspect of sternness. Yet he possessed a gen- erous nature, and his heart was aglow with tender sympa- thies and noble impulses. But while the beneficence of these qualities were often experienced by his friends, so eminent was his judicial character that it may be said of him, as Mr. Erskine once said of Lord Mansfield, that he was " that great and venerable magistrate who is remem- bered only with the impression of the awful form and figure of justice."
Judge Hemphill was thoroughly Southern in his senti- ments, and his career in the United States Senate was characterized by a vigorous advocacy of the principles which swayed the minds of the Southern people. His en- trance into the Senate was to step upon a plain from which he could observe the gathering clouds which in less than two years were to lower in the national horizon. He was not an orator, but his speeches abound with sound logic, and always present a stern array of facts in pure, terse and incisive language. His speech on the right of a State to withdraw from the Union, delivered in the Senate in January, 1861, is a superb exhibition of these qualities. In this speech he showed that Texas, having been an independent Republic, which had taken its stand among the nations, at the time of its annexation, would, in withdrawing from the Union, only resume the sovereignty and independence which she had laid aside when she en- tered it. He scouted the charges of ingratitude made at
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that time upon Texas in view of her threatened secession, and showed that the State was in no way responsible for the Mexican war, and that it was not waged by the United States even for the benefit of Texas.
When his State seceded, Judge Hemphill retired from the United States Senate, and was sent as a delegate to the convention at Montgomery. He was subsequently elected to a seat in the Confederate Congress, and died in Richmond- in 1862. His remains were brought to Austin and interred in the State cemetery, where they repose by the side of some of the associates of his long judicial career, while his name is inscribed in letters of indelibility upon the juris- prudence of Texas, where it will receive the tribute of ven- eration as long as the voice of justice shall be heard in the land.
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BENCH AND BAR OF TEXAS.
ANDERSON HUTCHINSON.
Anderson Hutchinson was a native of Greenbrier County, Virginia, and received a common-school education, most of which he acquired at intervals while assisting his father in his office, which was that of clerk of the county court. Here he also acquired some practical knowledge of legal forms and processes, which was, no doubt, the foundation of those habits of accuracy and that expertness in the preparation of legal documents which characterized his practice and gained him success.
On reaching the age of manhood Mr. Hutchinson emi- grated to Knoxville, Tennessee, where he was admitted to the bar, and soon acquired considerable reputation. This he achieved by means of perseverance and a vigorous devo- tion to his profession, as well as by the native faculties of his mind, which the very touch of learning kindled into a flame of genius. After practicing some years at Knoxville he removed to Huntsville, Alabama, and there encountered, with increasing reputation, the eminent lawyers of that noted bar. He then removed to Mississippi, and estab- lished his residence in the town of Raymond, in Hinds County, about the year 1835.
In 1840 he published, in conjunction with Volney E. Howard, a digest of the laws of Mississippi, for which the Legislature allowed him $12,000, purchasing fifteen hun- dred copies, and in 1848 he published his Mississippi Code. This is undoubtedly a work of great merit, and required an incalculable amount of labor as well as great ability in its preparation. It is not a digest, nor revision, nor a com- pilation of the statutes at large, but an analytical com- pendium, excluding all enactments not in force except those which are necessary to explain some right originating from them, or requisite for affording an insight into existing statutes.
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The plan of this work conforms to the admirable analysis of Blackstone's Commentaries, and in its arrangement pre- sents a striking novelty as well as an exhibition of marked genius. It gave entire satisfaction, and the Legislature ordered two thousand copies, to be distributed among the officers of the State.
In the spring of 1841 he removed to Texas, and was soon afterwards appointed one of the district judges, who, when sitting in banc, composed the Supreme Court of the Re- public. In this capacity he acquired an exalted reputation as an able lawyer and a man of integrity. He had been but a short time upon the Texas bench when, while sitting on the trial of an important case in San Antonio, he was captured by a sudden advance of the Mexicans under Gen- eral Woll. After a gallant defense by the citizens, in which he actively participated, the advance guard of the Mexican invading army broke into the town, captured the court- house and carried away the judges and other officers of the court, as prisoners, to the castle of Perote. Here he was closely confined and subjected to great hardships ; but, through the influence of the celebrated Waddy Thompson, at that time the American Minister at the City of Mexico, he was released in 1843, and, returning to Mississippi, renewed his practice in co-partnership with Henry S. Foote.
As a lawyer, Judge Hutchinson owed his success and celebrity more perhaps to an accurate and laborious prep- aration of his cases than to any pre-eminent feature of ability. He was deeply read in the law, and by application and indefatigable industry availed himself fully of his ex- tensive knowledge and resources. The accuracy of his pleadings, his uniform urbanity and simplicity of manners, his fidelity to his clients, and the force of character which he brought to bear upon a cause, all contributed to his great popularity and success. He possessed an extraor- dinary degree of promptness, decision and energy, which, with a sincere kindness of heart and love of justice, enlisted for him a confidence which no power could shake ; and he made a lasting impression upon the jurisprudence of both Mississippi and Texas. He died in the year 1853.
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BENCH AND BAR OF TEXAS.
R. E. B. BAYLOR.
This pious man and upright judge was born in the State of Kentucky during the year 1793; but in early life removed to Alabama, studied law, and was admitted to the bar of that State. He also became an active politician, and represented his district in the United States Congress. In 1839 he emigrated to Texas and settled in Fayette County, where he practiced his profession, and, being also a minister of the gospel, pursued at the same time, the duties of his clergical functions. He was soon afterward appointed district judge, and was one of the judges of the Supreme Court of the Republic from 1841 to the annexation of Texas to the Union. He was re-appointed to the bench of the State, and held the office of district judge until the feebleness of old age compelled him to retire from the active duties of professional life.
He was a member of the Convention of 1845, which framed the first Constitution of the State, and acted a prominent part in that distinguished assembly. Though a Baptist clergyman, he favored the adoption of the provision of the Constitution excluding ministers of the gospel from civil office, and " dedicating them to God and the care of souls," and upon a motion being made and supported by Mr. Henderson and others, to strike out the excluding clause, he said: " I think the clause a wholesome and wise one. I do not think that any office coming directly from the people ought ever to be filled by the clergy of any denomination. I would as soon see a woman mingling with the populace at large, mounting the rostrum and making stump speeches, as it is generally called, as to see a clergyman engaged in business of this kind. Sir, the good and pious do not wish this thing; none but the ambitious desire it, and they,
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before all others, ought to be excluded. There are sectarian jealousies and heartburnings enough among the various religious denominations of every country ; and by opening this new field to human ambition, you will only make the breach between the different sects of Christians wider than it is now. I think, therefore, that the section ought to be retained. A great deal might be said upon the subject. It seems to me, further, that it is calculated to keep clear and well defined the distinction between Church and State, so essentially necessary to human liberty and happiness. Sir, priests and kings, the former of every denomination, not the Catholic alone, have conspired in all countries and nations to enslave mankind. It has been a received maxim in Europe, that the king should govern the priest, and the priest the people. What have our fathers thought upon the subject ? In many of the State Constitutions the clause has been inserted. It has been thought wise and proper by their framers. A similar feature is found in our present Con- stitution. In conclusion, I have neither the strength nor the ability to do justice to the subject; I therefore simply say that I hope the clause will be retained by the good sense of this House."
Judge Baylor was a good lawyer and an excellent judge, and his pure character and professional qualifications were exemplary and elevating to both the bar and the bench of his time. Some of his decisions are reported by Mr. Dallam, and while, like those of his associates at that period, they are terse and seemingly without much refer- ence to precedents, they manifest an earnest search for truth, and a conscientious dispensation of justice. He died at his residence near Independence, in Washington County, in December, 1872, and the Baptist denomination has perpetuated his name and memory by " Baylor University," named in his honor.
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BENCH AND BAR OF TEXAS.
RICHARD MORRIS.
The subject of this sketch was a native of Virginia, and was born in Hanover County on the 27th of December, 1815. His father, Richard Morris, was a gentleman of cul- ture and a lawyer of distinction, and for many years prac- ticed his profession, with much success, in Hanover and the adjoining counties. But having inherited an ample fortune, he was independent of the remuneration of his practice, and never gave to the study of law that assiduity which is necessary to the attainment of the highest profes- sional eminence. While he had but little taste for politics, and sought no political preferment, he was a man of great popularity, and was elected to the Legislature when he was not a candidate for the position. He was also elected a member of the Virginia Convention of 1829, which was convened to frame a new Constitution for the State, and in that body of truly great men he performed his part with credit to himself and his constituents.
At the age of fourteen years Richard was sent to the cele- brated Burke High School, in Richmond, to be prepared for a collegiate course. At this school, which was at that time perhaps the most noted in the State, he remained two years, and then entered the University of Virginia. Here he pur- sued an academic course during the two succeeding years, and then began the study of law in the office of his father. In the fall of 1835, he returned to the University and pur- sued his studies in the law department one session.
In 1838, having obtained his license, he removed to Texas and located at Houston, where he commenced the practice of his profession. He soon afterwards formed a copartnership with James II. Davis, Esq., a young man who had just graduated in both the academic and law de-
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partments of the University of Virginia. They began their professional career under the most favorable auspices, and with the brightest prospects, but their copartnership was soon dissolved by the death of Mr. Davis, which occurred in the summer of 1840.
Soon after the death of his partner, Mr. Morris changed his residence to the city of Galveston, where he continued his practice alone and with great success. So rapid was the rise of his reputation that before he was twenty-six years of age President Lamar voluntarily appointed him to the high and responsible office of judge of the first judicial district, which ex-officio made him one of the judges of the Supreme Court of the Republic.
In the fall of 1841, soon after his appointment to the bench, Judge Morris married Miss Mary Love, of Galves- ton, a lady highly accomplished, and of the most amiable qualities, and who was in every respect worthy of her hus- band. She was the daughter of Hon James Love, formerly a representative in Congress from Kentucky, and after- wards a member of the Convention of 1845, which formed the first Constitution of the State of Texas. He was sub- sequently judge of the first judicial district, and then of the criminal courts of the Houston and Galveston district.
The career of Judge Morris on the bench was able and ex- emplary. While he was the youngest judge within the Re- public, the lawyers who practiced before him were soon convinced of the wisdom of President Lamar in appointing him to the position. In the trial of cases he listened to both sides with patience, courtesy and respect, and no judge ever held the scales of justice more evenly. He dis- charged the duties of this office nearly four years to the perfect satisfaction of the members of the bar and of the people, and appeals were rarely taken from his decisions.
Judge Morris attended three sessions of the Supreme Court of the Republic, at that time held by the district judges sitting in banc, and some of his decisions and opin- ions in important and difficult cases are found in Dallam's Digest, which speak for themselves. Of these the most im- portant are : Forbes, Brooks & Co. v. Wm. G. Hill, Dallam,
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p. 486 ; Allcorn, Amdr. v. Sweeny, Ib., p. 494 ; Taylor v. Duncan, 1b. 514 ; Walker & Walker v. McNiels & Calder, 1b. 541 ; Hamilton . Black's Admr., p. 586; Morris v. McKin- ney, p. 619, and Carr, by Monaghan, guardian, v. Wellborn, p. 624.
These opinions are referred to mainly to show that they were written by a man of education and uprightness, who had studied and understood the principles of both law and equity. They also show the highest order of judgment, discretion and love of justice in applying these principles to the variety of difficult cases submitted for his decision. No lawyer would conclude from reading his opinions that they were written by one so young in years. The verdancy of his youth is hidden by the hoary locks of wisdom. It will be observed that there was never a dissent from his opinions, but a uniform concurrence in all his views.
While he was in the prime of his usefulness and vigor that fatal besom which has so often and sorely afflicted whole communities of the South, swept over Galveston, and in his twenty-ninth year Judge Morris fell a victim to yellow fever, and died on the 19th of August, 1844.
It may be truly said of him that he was an enlightened, able and impartial judge. Upon the bench he was cour- teous, dignified and patient, and in society he was a gentle- man of refinement and polish. He was an ornament to the Texas bench, and no judge ever laid aside a more spotless and unsullied ermine.
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WILLIAM B. OCHILTREE.
WILLIAM B. OCHILTREE.
The subject of this sketch was born in Cumberland County, North Carolina, on the 18th of October, 1811. His educational advantages were slender, and he removed when quite young to the Territory of Florida, thence to Alabama, where he was admitted to the bar, and entered upon the practice of his profession. In 1839 he removed to Texas, and settled at Nacogdoches, where he soon acquired a large practice.
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