Speeches
24th Annual Banquet of the Black Board of Directors Project
Thank you for the invitation to speak to this distinguished organization. I have a few thoughts to share with you this evening – inspired in part by a visit last year to Yorktown and Jamestown. It is a story that, I am sure, merits not more than a footnote in history, but it illustrates for me why we celebrate our American heritage and our fidelity to the rule of law exactly 400 years after the first English expeditions landed at those old Virginia settlements.
But it is too ambitious to begin our journey in 1607, so let's start in 1987, when I was a law student at the University of Texas. I invited my father to the State Archives in Austin, Texas which has a fabulous collection of documents on Texas history. The reason for the visit? We had recently had a conversation with my late grandmother (who was born in 1902 in Palestine, Texas) about our family's Texas history. She told us about her father Samuel and her uncles, Matthew, Mark... Luke, John. (Are you sensing a theme here?). Her father (postal worker); Matthew (the dentist); Mark (the preacher); John (the lawyer). I don't think she ever told us Luke's profession, but let's just imagine that he was a doctor (in keeping with the theme). Now, mind you, these men were profitably engaged in those occupations at the turn of the last century, after the brief period of Reconstruction. They were educated, God-fearing, hard working, and blessed to live in the United States.
She told us about her mother, born in Waco whose father had extensive real estate dealings in that Central Texas town. I was intrigued that members of my distant family, in the years immediately following the Civil War, in a State that seceded from the Union to preserve slavery – that they entered a largely professional world. And I wanted to know more – to go further back in history. But, my grandmother knew very little about her grandfather – other than his name, Shedrick Willis.
So, it was off to the Texas State Archives to see if we could find a clue. We found not only a clue; we ultimately found the key to what makes this country the greatest in the world (and I don't intend to exaggerate). What I am about to tell you may sound like a movie script, but I assure you it chronicles real life. We pulled down a volume on McLennan County obituaries (Waco, Texas) and turned to a page that contained the name Shedrick Willis. The obituary talked about Shed, the "old negro" who died in 1903 at a house located a stone's throw from the courthouse. It said that Shedrick had served 2 terms on the Waco City Council in the early 1870's – 1870's?? Right after the Civil War. And then – the "key" to a new universe in the mind of a young student – Shedrick Willis had been owned by Nicholas Battle, Judge Nicholas W. Battle, before emancipation. We uncovered a direct line to slavery in my family, during a break between my law school courses on Property and Contracts. I was astounded. How is it that, in fewer than 5 years, what once was an object of commerce (my great great great grandfather) had become a public servant?
Well, the answer is contained in the Constitution of the United States of America. Shedrick Willis became a human being in the eyes of the law because people like Jefferson, Washington, Franklin, Madison, Hamilton, Adams, Monroe – they devised a system of government grounded on principles of liberty that would not sustain the heavy burden slavery placed on it. Of course, we know that many of our Founders were slaveholders and that the Constitution actually protected the slave trade through 1808. Yet, as Abraham Lincoln later realized, that institution was on its way to extinction from the inception of our Union. Shedrick Willis, though, lived when there was little hope that the hour of slavery's demise was near.
And yet... slavery did not necessarily mean that blacks were entirely helpless. In many courts of the old South, before the Civil War, the judiciary acted courageously as guardians of legal rights of all of its citizens, and even some of its human chattel. In 1856, when slavery was perhaps at its strongest in Texas, a Hill County judge was asked to decide whether a free black man could escape a contract in which he had agreed to sell himself from freedom into slavery – to pay off debts, I suppose. Of course, his purchaser argued that the contract must be enforced as written. Now, the judge himself was an owner of slaves, so we would not assume him to be particularly sympathetic to the evils of slavery. The local community supported slavery – many would later serve the confederacy in the Civil War, so no question what the popular ruling would have been. And the basis on which slavery was so often defended – the inferiority of the Negro race – would seem to require that the sale be upheld. But no, the judge concluded the contract was against public policy and void. He imposed the rule of law as he saw it, even though it was counter to the public will and arguably contrary to his (and all slaveowners') interest in maintaining a system that denied rights to an entire class of people. That case was appealed all the way to the Supreme Court of Texas and I take great pleasure today in pulling the Texas reporter off my shelf and reading where... Judge Battle's...decision was affirmed.1
Now this is extraordinary on so many levels. Judge Battle studied law under Thomas R. Dew in 1843 at the College of William & Mary. Last February I took a detour while judging a competition in Williamsburg (which, of course, is near Yorktown and Jamestown), to visit the Special Collections Research Center at William & Mary. I opened a crumbling 19th century registrar to the page where Nicholas Battle signed in on his first day of law school. T.R. Dew was President of the University and, importantly, one of the premier academicians defending slavery at that time. In Dew's then-famous "Essay on Slavery" – which was one of the texts Nicholas Battle studied as his student – Dew wrote:
It is said slavery is wrong, in the abstract at least, and contrary to the spirit of Christianity. To this we answer . . . that any question must be determined by its circumstances, and if, as really is the case, we cannot get rid of slavery without producing a greater injury to both the masters and slaves, there is no rule of conscience or revealed law of God which can condemn us. The physician will not order the spreading cancer to be extirpated although it will eventually cause the death of his patient, because he would thereby hasten the fatal issue.2
Much of the essay focused on the economic destruction abolition would visit on the state and region. Other sections urged that slavery was a net good for slaves – they faired far better economically and physically as servants, he argued. (Abraham Lincoln: "But, slavery is good for some people??? As a good thing, slavery is strikingly peculiar, in this, that it is the only good thing which no man ever seeks the good of, for himself.") Still other sections of Dew's essay mounted a major biblical defense to the institution. Perhaps this gives us some insight into the next phase of Judge Battle's life. In 1862 he left the bench to enter the confederate army. He served in General Maxey's brigade and received letters of commendation from Robert E. Lee. It was after the Civil War, when he again sat as district judge, that his true mettle was tested.
Judge Battle returned to find his community resisting the union victory and continuing to fight, in ways large and small, the concept that former slaves were now citizens of the state and country. Judge Battle would have none of that. In those same Texas State Archives, I found an account of a speech he gave to a Waco gathering. He said something like this: "Look, I am one of you – I owned slaves, I fought alongside many of you as a proud states rights democrat. But I recently swore an oath to preserve, protect and defend the Constitution, one that today includes the 13th and 14th and 15th Amendments,... and I will honor my oath. Any of you who urge otherwise are supporting a revolution And I will stand against any such treason." Remarkable!
We have all encountered judges who exhibit similar courage to defend the rule of law --- even when they know their stance will displease a majority. Many find it ironic that I cite Judge Battle as an ideal in this respect, but Nicholas Battle, as a judge, suppressed personal considerations to enforce our Constitution. What more can we ask of our judges?
There was also much to admire in Nicholas Battle... the man. Shedrick Willis would have remained obscure in the pages of Texas history had he not become a City Councilman, and he would not have become a city councilman had he not enjoyed the support, encouragement, the endorsement of a former slaveowner, a sitting judge – Nicholas Battle had the idea that Willis should serve as a leader in the community. Their example reminds us that even after the most contentious and even bloody disputes in our nation's history, we have the ability to come together under a Constitution that is a model for the world. And so, despite political differences, the nation came together after 9/11 to announce our commitment to preserving our way of life, and to demonstrate to the world that our Founders' vision of a path to freedom is without end.
I urge all of us to return often to the first principles articulated in the Constitution. Read about the circumstances of its creation; understand its complexities. It has ultimately set people free to explore the limits of their own ingenuity, and within their own Faiths, to advance the betterment of the human condition. Let it be as revered as the cemetery at Arlington, the story of Rosa Parks. It is the reason that my grandmother's Palestine of East Texas is free from the ancient turmoil plaguing Palestine of the Middle East. In short, it is the reason we live free. There is a direct line from Judge Battle's fidelity to the Constitution to the fact that his former slave's great great great grandson is before you today as Chief Justice of Texas.
Let's not be distracted too long by Don Imus, or Brittany Spears, or even Michael Vick. What should captivate us is our journey, from the shores of Virginia 400 years ago, to ideals expressed in the Declaration of Independence and the Constitution, to the brave men and women of the armed forces who have fought to preserve the rule of law, to the minutes of Waco's City Council meeting in the 1870's, which show Shedrick Willis presiding as Mayor pro tem. These truths, rather than the Hollywood gossip that clutters the airways, should be discussed at our homes and our schools so that we and our children are prepared (and inspired) to confront the great challenges that are sure to confront our nation 400 years from now.
Thank you.
- Westbrook v. Mitchell, 24 Tex. 560, 1859 WL 6468 (Tex. 1859).
- http://72.14.253.104/search?q=cache:bDpva-Wzs3MJ:edsitement.neh.gov/lesson_images/lesson660/bible_slave.pdf+dew+%22essay+on+slavery%22&hl=en&ct=clnk&cd=1&gl=us
