USA > Texas > The bench and bar of Texas > Part 8
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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
The decisions of Judge Wheeler extend through twenty- six volumes of Texas Reports, and are characterized by a profound knowledge of law, a thorough comprehension of the facts in all their legal bearings, and by an exposition of legal principles, so lucid and logical that his views readily receive the homage of assent and satisfaction. His style is strong, vigorous and dignified without any effort at ornation or embellishment, or seeming choice of expression, except to convey his ideas in the most forcible and cogent manner; and his opinions notably avoid the expression of mere dicta which affirm no principle authoritatively, and tend only to confuse and mislead the mind of the young practitioner.
While stern and unyielding in his, views, he was averse to disputation, and maintained a respectful deference to those of his associates. His pure and polished professional
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ethics cemented the most cordial relations between himself and the other members of the bench and with the bar. Mr. Justice West, an eminent judge of persons, as well as of the law, says: " During his long career upon the bench, Judge Wheeler frequently differed in his opinions from the other members of the bench, but owing to a constitutional sensitiveness which made him loth to controversy, he, on most occasions, contented himself with directing the reporter to note his dissent. At times, however, when his strong conviction of truth and justice overcame his abhorrence of debate, he would advocate his views in a dissenting opinion, rich in legal lore, and even eloquent in the vindication of truth against what he conceived to be the errors of prece- dent. On these occasions he disclosed that beneath his modest and unassuming exterior slept an iron will and an inflexible purpose, which nothing could swerve from the path of duty.
In these struggles he more than once arrested the current of judicial decisions, which by legislative enactments were made to flow in the channel he had marked out as the true course of justice. His dissenting opinions in Coles v. Kel- sey, 24 Texas; Sylvanus v. Walker, 3 Texas; Snoddy v. Cage, 5 Texas, form epochs in our judicial history."
In politics Judge Wheeler was imbued with the principles of the old Whig party. He was, however, a warm advo- cate of annexation, and in 1861 ardently espoused the policy of secession as the only alternative that afforded any hope for the South. His mind was naturally inclined to the forebodings of melancholy, which had been increased by long and intense mental labor, and contemplating the clouds which hung over the future of his country and the pros- pects of his family, to which he was devoted, he yielded to the influences of despair.
It has been said that all great passions are born in soli- tude and nourished in retirement; and that they are tamed and degraded by the common intercourse of society, and utterly lost and extinguished in public companies, crowds. and assemblies ; but in the instance of Judge Wheeler we
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have a brilliant light, kindled in the blaze of the forum, shining with resplendent glare upon the bench, and shed- ding its beacon light upon all the affairs of men, waning away and extinguishing itself in the damp of despair - the noblest intellect mouldering in the rust of inaction and the canker of despondency. Judge Wheeler, in a fit of mental aberration died by his own hands ; but the jurisprudence of Texas embalms his ability and his virtues in the golden urn of everlasting remembrance and veneration.
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GEORGE F. MOORE.
GEORGE F. MOORE.
George Fleming Moore, for many years chief justice of the Supreme Court of Texas, was born in Elbert County, Georgia, on the 17th day of July, 1822, and was the seventh son of his parents. While he was young his father removed his family to Alabama, and, being a prosperous planter, placed George in the University of that State, and subsequently sent him to the University of Virginia ; but he was not a graduate of either. In 1842 young Moore began the study of law at Talladega, and in 1844 obtained his license and entered upon the practice of his profession. Being now dependent entirely upon his own resources, his ambition sought a more propitious field, and in 1846, being attracted by the glittering prospects of the new State, he removed to Texas and located at Crockett, where he found an ample scope for his genius and energy in the practice of a new and undeveloped system and in its application to the rapid growth of the country. He soon attained a promi- nent position at the bar, and in 1854, allured by the large legal business which centered at the State capital, he re- moved his office to Austin, but a year or two afterward settled at Nacogdoches, as the law partner of Richard S. Walker, and the firm became one of the most noted in the State.
In 1858 .Messrs. Moore & Walker received the appoint- ment of State Reporters, and prepared the twenty- second, twenty-third and twenty-fourth Texas Reports, which have been made by statute models for all sub- sequent issues. During the civil war Mr. Moore served as colonel of the Seventeenth Regiment of Texas cavalry ; but on being elected in 1862 an associate. justice of the Supreme Court, he resigned his office in the
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army and accepted the position. When the reconstruction era of President Johnson began in 1866, he was again elected to the Supreme bench and was made chief justice of the State; but upon the abrogation and overthrow of the re-union policy of the President by the Federal Con- gress in 1867, he was removed from office by a supreme military authority, which swept away every function of re- turning concord from the South as being an obstruction to the schemes of the Republican party.
Judge Moore had maintained throughout the war a staunch and dignified position in support of civil supremacy and judicial authority, and in 1864 engaged in a conflict with the military power, which exalted his character, both as a judge and a patriot. He had issued writs of habeas corpus for the production of some citizens who were held in military custody, and doomed as sacrificial examples. These writs had been disregarded, and rising to the full height of judicial dignity and manly opposition to that which he considered an unwarrantable outrage upon the dearest and most sacred rights of a citizen, he declared his opinion in the State v. Sparks, et al., 27 Texas, in terms of such scathing reprimand that the military authorities yielded obedience to his mandates, and the citizens were saved.
From the time of his removal from office in 1867 until 1874 he practiced his profession in Austin; and when the people in 1874 resumed control of the State government, which had been taken from them and supplanted by an odious military rule seven years before, he was again appointed associate justice of the Supreme Court, and upon the adoption of the Constitution of 1876, he was elected to the same position by the people. On the resig- nation of Chief Justice Roberts in 1878, Judge Moore was appointed by the Governor as his successor, and was soon afterwards elected chief justice of the State by more than one hundred thousand majority of the popular vote, and held this position until 1881, when, in consequence of ill health and impaired eye-sight, he resigned, and sought that repose from his long and irksome labors, so sweet to those,
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who, full of honors and full of years retire from a long public service with a mind conscious of duty well performd.
In contemplating the character of Judge Moore we are dazzled by the uniformity and constancy of its glow. There are no jetting traits to serve as landmarks to the analysis. There are no conspicuous planets or brilliant constellations to arrest our gaze ; no glowing meteors flash along the sky; no auroras or milky ways usurp broad tracks in the firmament ; but the whole canopy, from the zenith to the horizon blazes with one common, uniform light, such as flows from the full, round orb of day. The qualities of his head and heart were in such constant and exact equipoise that it is difficult to determine which was the most vigorous of his virtues, or what was the chief mainspring of his action. No particular faculty of his mind seemed to claim superiority or assert predominance ; and, as an advocate, if there was one trait which might be desig- nated as the key to his success, it was the capacity of making a lucid presentation of his case - for presenting a concise, synthetical summation of facts, a forcible and convincing application of the law, for disrobing his adver- sary of all false colors and superficiality, and whittling the question down to the very hinge of fact and gist of legal merit. He possessed a keen perception, and his mind was disciplined by habits of correct association. His powers of analysis and abstraction were of a high order, and no complexity of law or complication of fact woven of the the warp and web of circumstances or artifice could escape the glare of his penetration. He prepared his cases with great care, and fortified himself at every possible point of attack.
On his first appearance at the bar of Texas, he was noted for his sedate, dignified manner and studious habits. Free from the frivolities and indiscretions which usually attend one of his age and conscious powers, he steadily pursued the path of success, and his conduct was early impressed with the mould of experience. His energy was indomita- ble and his determination undaunted by any obstacle which untoward circumstance could throw in his pathway. Cer-
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tainty followed in the track of his virtues, and he climbed with a sure-footed pace to the proud height of his profes- sional eminence.
In December, 1870, he was licensed to practice in the Supreme Court of the United States, and his arguments in Hanrick v. Barton and Cordova v. Hood et al. before that tribunal are replete with skillful analysis and logical pre- sentation. In the former he discussed the difference be- tween the jus in re and the jus ad rem, and the distinction made by the courts in respect to the execution of deeds and contracts - the first being inoperative until completed and consummated, while the latter create obligations which may be enforced by appropriate judgment. He was suc. cessful in both of these cases, though the court was divided as to their merits.
Upon the bench, Judge Moore was a Cato of integrity, an Aristides of justice, and an Eldon of equity elucidation. He was perhaps the best chancery lawyer that had sat upon the Texas bench, and had he presided in courts of separate and independent chancery jurisdiction his decisions would not have disparaged the most eminent Lord Chancellor that ever directed the impressions of the great seal, but would have glowed with a lustrous purity, doctrinal soundness, and logical clearness unsurpassed by the most luminous de- crees of Eldon, Hardwicke or Lyndhurst.
He was equally eminent for his thorough knowledge of the intricate system of Texas land laws, and during the seven years he was excluded from the bench by military power, his practice in land cases extended. throughout the State. His decisions upon questions arising from these laws, upon questions of official responsibility, and his dis- tinctions of the degrees of crime, form some of the most important features of Texas jurisprudence. While he maintained vigorously and successfully the sacred right of habeas corpus in The State v. Sparks, he also upheld in ex parte, Coupland, 26 Texas, the constitutionality of conserip- tion as a means of national defense, and in Keuchler v. Wright, 40 Texas, he held that the courts could issue the writ of mandamus to the heads of the executive depart-
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ment of the State government to compel proper perform- ance of duty, which had been denied by a majority of the court in the case of Bledsoe, Comptroller, v. The Interna- tional Railroad Company, which had been decided at the same term. His definition of express malice in Farrar v. The State, 42 Texas, and his distinctions as to what consti- tutes murder in the first and second degrees, are said to have elicited from Mr. Bishop the expression that they were the best he had ever seen. His dissenting opinion in Hender- son v. Beaton, 52 Texas, in regard to the constitutionality and construction of the act organizing the Court of Com- mission of Appeals presents a clear view of the character and functions of that court, and of the power of the Legis- lature to provide means for the dispensation and promotion of justice:
As an orator, Judge Moore was not endowed with the highest gifts of eloquence, but he possessed to an eminent degree that which Demosthenes declared to be the chief ingredient of eloquence. He possessed "action ;" not that which is confined to gestures of the limbs, or theatrical emotions of the body, but that action which indicates the sentiments with which we are inspired and impresses them into a rule of conduct, - an incentive to achievement, -a passion for duty, which engages the minds and convictions of others by its frankness and sincerity, and by the fer- vor of conscientious purpose. He was eloquent in the depth of his conviction, in the earnestness of his manner, in the logical train of his thoughts, in the force and power of his language, and in the moral mesmerism of the man. His arguments were always clear, logical and concise, and his oratory was more like a torrent which sweep, everything before it than that Ciceronian gentleness which glides upon the waves of conciliation. He depended more upon the firm rod of reason than upon the fickle wand of suasion, and gained the citadel of conviction by assault direct and full in front, rather than by the crouching maneuvers and circuitous paths of wile or allurement. He possessed a keen sense of honor, and was open and generous in all his
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dealings, punctilious in his discharge of his public duties, resolute in the prosecution of every undertaking, and was all that Horace meant by his justus et tenax propositi vir.
Judge Moore preserved a pure and courteous professional ethics and a dignified judicial decorum. He blended in an admirable manner the stern features of the judge with the sympathetic attributes of the philanthropist. He was par- ticularly kind in his demeanor towards the young members of the bar, and was always ready to extend to them a help- ing hand. His domestic and social qualities were as amiable and refined as his public and professional attributes were brilliant and elevated. He was married in Alabama in 1849 to Miss Susan Spyker, an estimable lady, whose qualities of head and heart eminently fitted her to be the companion of her accomplished husband, and who is still living to cherish the memory of his virtues. He died on the 30th of August, 1883, in the City of Washington, where he was spending the summer for the purpose of recuperating his health, which had been for some time feeble and precarious.
It is peculiarly sad to contemplate the death of a man of whom it is universally said by his fellow-citizens that he died too soon. But it is to the loss only that we should confine our regrets ; for it is a just consolation in contemplating our departure from this world, that all the great and the good die, and that a pathway marked by the footsteps of the Savior of mankind and trodden by count- less myriads of bright and shining feet, surely can not be a rough and unpleasant path ; but we have every reason to believe that death is but the curtain of life dropped behind us, before which expand the realms of eternal light. When our first parents beheld the setting of the first day's sun, saw it leaving them, it might be, forever, and beheld the darkness of the first night gathering around them, with what indescribable wonder and dismal forebodings they may have gazed upon the novel scene. But as it grew darker and darker, when they turned their eyes upward, ยท what a beautiful panorama gradually unfolded to their view. The sun was gone, but lo ! new-born Cynthia and
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the beautiful stars, smiling in the mirth of their morning song. If, then, night can reveal such beauty, what incon- ceivable glory may not deck the canopy of death.
These reflections are awakened by the contemplation of the death of him who forms the subject of this sketch. He walked through the world in the path of duty and conscious rectitude, and in the faith of piety, down to the brink of the valley, and when he stepped forth into its shadows, he no doubt caught the promised visions which flash from the blessing of the faithful servant.
D edt
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BENCH AND BAR OF TEXAS.
A. J. HAMILTON.
Andrew Jackson Hamilton, one of the ablest men the Texas bar has ever produced, was born in Madison County, Alabama, on the 28th of January, 1815, and was admitted to the bar of that State in 1841. His educational advan- tages were the best that the schools of the new country afforded, and his preparation for the bar was inspired by a natural genius and ambition.
In 1846 he emigrated to Texas, and located at Lagrange, where he attained such eminence in his profession that in 1849 he was appointed by Governor Bell attorney- general of the State, and from that time made Austin his permanent residence. He served as the represen- tative of Travis County in the Legislature of 1851, and again in 1853, and was an active and zealous promoter of all measures for the general welfare of the State. In 1856 he was an elector on the Buchanan ticket, and in 1859 was elected to a seat in the United States Congress, as an independent candidate, in opposition to General T. N. Waul, the regular nominee of the Democratic party. He was a strenuous opponent of the policy of secession, which he considered impolitic and unjustifiable, and retained his seat in Congress after the other members from the seceded States had returned to their constituencies. He returned to Austin in the latter part of 1861, and was made the Union candidate for the State Senate, to which he was elected ; but Texas had now cast her lot with the Con- federacy, and he declined to take the required oath of qualification.
In 1862, being still opposed to the purposes and progress of the war on the part of the South, he left the State, and, making his way through Mexico, repaired to the City of
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Washington, and was immediately appointed brigadier- general of the Texas troops in the Union service. In 1865 he was made Provisional Governor of Texas by President Johnson, as the most suitable person he could find in the State to effect his conservative plan of reconstruction. Governor Hamilton entered upon the duties of this office with an ardent desire to re-establish as easily and speedily . as possible the former relations of the State to the Federal Union ; but in 1866 he was appointed an associate justice of the Supreme Court, which was a field equally compati- ble with his taste and talent. He was still, however, deeply interested in the method and manner of reunion, and was a prominent member of the Reconstruction Convention of 1868, in which he was the author and chief promoter of the liberal electoral bill and franchise measures, which were engrafted in the new Constitution. In 1870 he was the Conservative candidate for Governor, but was defeated by Judge E. J. Davis, the Republican nominee, in a contest so close as to require the intervention and decision of the military authorities. Returning now to the seclusion of private life, he eschewed any further active participation in the political events of the period, and, falling into a de- cline of health, died in Austin during the month of April, 1875.
Governor Hamilton was a man of great ability and a pro- found lawyer, and his professional career was remarkably successful. He was naturally endowed with uncommon powers of intellect, and his knowledge of law was scientific and thorough. His management of his cases was method- ical and practical, and commanded every element of honor- able success. While he embodied all the eminent qualities of a great lawyer, the characterizing features of his emi- nence, taken in the abstract, were asserted in a correct judgment, an accurate comprehension, and a perception that bordered upon intuition. His capacity for close dis- criminations and subtle distinctions, the apt and forcible communication of his ideas, the strength of his logic, the purity and simplicity of his dietion, unfolded the most ab- struse doctrines and lurking points to the view and under-
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standing of common sense, while the depth and pathos of his convictions and the candor of his arguments impressed his opinions upon the minds of the most obstinate and in- different.
To his clients he was a faithful friend and counselor and deceived them with no apparitions of false hopes or spe- cious inducements to unjust and fruitless litigation. But he was sincere and conscientious in his dealings with them, and they trusted him with an implicit faith.
As a judge of the Supreme Court he brought to the bench not only the qualifications of a thorough lawyer, but the requisites of an eminent jurist. His decisions, though comparatively few, are noted for their learning, dignity and force, and embrace some of the most important questions that arose during that unsettled period under the recon- struction laws. Chief among these is his opinion upon the question of ab initio rendered in 1868 in the case of Luter v. Hunter, 30 Texas, 690, and in Culbreath v. Hunter, 30 Texas, 712, known as the Sequestration Cases ; in which he held that the States composing the Confederacy occupied a higher ground than the Confederate government, having been in their origin peaceful, legitimate and constitutional ; that they continued to exist notwithstanding the war with- out a hiatus or interregnum, and that the United States government had not interfered with the mere civil laws of the States, whether enacted before or during the war, ex- cept as to such laws as necessarily resulted from the war and such as were unconstitutional, or in hostility to the United States.
It would have been well, indeed, for the interest of the whole country, if the doctrine enunciated in these cases had been accepted by the dominant party. Ten years of polit- ical chaos and stagnant blank in the history of the South would have teemed with prosperity, and the hostility of the heart would have ceased with the hostility of the sword.
Governor Hamilton was equally gifted as a politician, and his short career in Congress was characterized by a states- manship which ordained him to a position of great influence
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and usefulness in that body, had the star of Texas retained its peaceful glitter in the banner of the Union. He was sensitive of the wrongs and grievances of his section, and, while he acknowledged that revolution was justifiable and proper as a remedy for oppression, he differed from the great majority of the Southern people in regard to the right of secession, and believed that the constitution was the. great arbiter and palladium of American liberty, and that all wrongs could be adjusted by it and settled within the Union.
He contended that if the right of secession existed at all, it was a reserved right, and that reserved rights were such as existed prior to the formation of the constitutional com- pact ; that no such right could have existed anterior to the adoption of the constitution, and that every right was affirmatively provided for in that compact either in express or general terms.
At the close of his able speech on the state of the Union delivered in the House of Representatives in February, 1861, he said : " I care not for myself. I have made up my mind at the beginning of this trouble never to pause in my exertions because of the condition in which it would place me for the time being, either here or at home. I have not allowed one single motive of selfishness, if I know my own heart, ever to interfere with the exercise of what little judg- ment I have been able to bring to bear upon these great questions. I am solemnly impressed, however, with the condition in which I actually find myself. In traveling hither from my home, more than two thousand miles dis- tant, my foot pressed no spot of foreign territory. My eye rested on not one material object during my journey that was. net a part and parcel of my country, as I fondly deemed it. When we assembled together, as far as I know, every State and Territory was represented upon this floor. The great fabric of the government was then complete ; but now, how changed ! When I go home it will be to find my pathway intercepted by new nationalities. Without ever having wandered from my native land, I must traverse foreign countries if I would return.
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