Occasionally I run across interesting stories that have nothing to do with oil and gas, and I am somewhat of a Texas history buff. I came across this story in the most recent issue of the Journal of the Texas Supreme Court Historical Society. My summary below is from the articles by John Browning, its Editor in Chief, and John Moretta, author of “William Pitt Ballinger: Texas Lawyer, Southern Statesman, 1825-1888” (Tex. State Hist. Ass’n 2000), and from Jason A. Gillmer, “Lawyers and Slaves: A Remarkable Case of Representation for the Antebellum South, published in the University of Miami Race & Social Justice Law Review.
David Webster was a prominent citizen of Galveston in the years after Texas joined the union, accumulating substantial real estate holdings across the new state, including some 5,000 acres across East Texas. He never married, and he was a slave owner. Betsy, one of the slaves he first purchased when he lived as a young man in Mobile, Alabama, became his lifelong companion.
By 1840 David had moved to Florida and was listed in the census as owning 84 slaves. But he then lost most of his investments, including all of his slaves except Betsy, and in 1846 he moved with her to Galveston. David’s relationship with Betsy was described as “of the most intimate character.” David was an extraordinary character; he played the guitar and lute, was a ship’s carpenter in his early life, and was a leading Galveston businessman, a city then one of the most populous in the state and a growing seaport.
Webster died in May 1856, shortly after he wrote his last will and testament. His will contained the following provision:
I bequeath to Betsy, my servant (emancipated this date by me), all the real and personal and mixed estate belong to me in the city of Galveston and state aforesaid, as well with all the horses, household furniture, effects and appurtenances appertaining to the same, to be held in trust for the use, benefit and brhoof of said Betsy by Mrs. E.J. Hardin, of the city of Columbus, in the state of Georgia, as well with all the rents, profits, emoluments and debts accruing to the same,–nothing opposing the power granted to said trustee, from disposing of said property at the pleasure and request of said Betsy, it being understood that the trustee is herein empowered to carry out the true intent of this will. … I hereby manumit, emancipate and set free my negro woman Betsy, and declare her to be entirely liberated from slavery, and entitled to all the rights and privileges of a free person with which its in my power to vest in her.
The will was admitted to probate and the court appointed two men as administrators of David’s estate. But in April 1857, Martha Greenwood arrived from New York, claiming to be a cousin of David’s, and filed suit to contest his will.
When David died Texas had enacted laws that banished all free people of color from the state. The constitution of the Republic of Texas had provided that slave owners were forbidden to free their slaves within the Republic. Betsy, then 60 years of age, faced an uphill battle. So she hired a lawyer. She was determined to live out her life as a free person in Galveston.
Betsy approached Mark M. Potter, a prominent Galveston attorney, who agreed to take her case. Potter contacted William Pitt Ballinger, one of the premier lawyers in Texas, to assist him with the case. Betsy, of course, had no money other than her possible inheritance; she offered to give Potter and Ballinger half of her recovery if they one the case. The Webster estate assets were valued at $21,000, about $800,000 in today’s dollars. But Potter and Ballinger insisted that their contingency fee would be one-third, even then the standard contingency fee for attorneys.
Ballinger moved to Galveston from Kentucky in 1843 and was the first lawyer licensed by the new State of Texas. In 1850 he was appointed the US District Attorney for Eastern Texas, a position he held for four years. His practice grew with the growth of railroads in Texas and he became the state’s most prominent railroad lawyer, representing the likes of railroad tycoon Jay Gould. Ballinger was himself a slave owner. He was a Whig and opposed cessation, but he sided with the South in the Civil War. In 1874 he declined a proffered appointment to the Texas Supreme Court, and was on the short list to become the next justice of the US Supreme Court three years later. After the Civil War he was asked to negotiate the terms of Texas’ surrender and readmission to the Union.
Betsy’s case caused considerable consternation in Galveston. Ballinger’s uncle and mentor James Love warned him that
Many of your friends & associates will believe you have betrayed your Southern principles & that you are no longer to be considered sound on the subject of slavery. You will be accused of all manner of wrongdoing & your honour and integrity as a gentleman will be assailed.
But neither Potter nor Ballinger considered withdrawing from the case.
Martha Greenwood’s lawyers made several arguments. She first argued that Webster was not competent to make his will. In response, Potter and Ballinger got letters from several friends of Webster attesting to his competency up until his death and saying they would have been surprised had he not willed his property to Betsy.
Martha’s lawyers then cited Purvis v. Sherrod, in which the Texas Supreme Court had held a few years before that the policy of the state forbade owners from freeing their slaves in their will. They relied on that prohibition in the Republic’s constitution, though it was not in the State’s later constitution. But the court in Purvis also held that, because Purvis’s will contemplated that manumission would occur outside the State after his death, it was a valid bequest. Ballinger argued that Purvis v. Sherrod went too far in enforcing a provision from the old Republic constitution, and that in any event Webster’s will in effect provided for her manumission outside the state as a “condition subsequent” for obtaining her inheritance.
Ballinger’s winning argument, however, was that Ms. Greenwood had failed to prove she was in fact a cousin of Webster. Webster’s friends testified that he had told them he had no kin. One friend testified that “on one occasion he said that if the had knowledge of having relations he would leave them nothing—not one red cent.” Martha’s case was dismissed. The probate court enforced Webster’s will and Betsy became a rich woman. In payment of her lawyers’ fee she conveyed to them some of the property she had inherited, and she continued to live in Webster’s home for the rest of her days, liquidating her property and burying her gold in the back yard.
But that’s not the end of the story. In 1866, Betsy sued Potter and Ballinger seeking to set aside one of her deeds to them of real property. At that time she was some 80 years old and there was speculation that her new lawyer had talked her into the suit for his own gain. He made some scurrilous accusations against Potter and Ballinger. The trial court dismissed the suit for lack of merit, and she appealed. Thus Betsy Webster v. T.J. Heard, 32 Tex. 685 (1870).
In those days published cases included the briefs of the parties before the court’s opinion. After making his legal arguments, Ballinger “begged permission” of the court “to add a few more observations.
If the allegations in this case had in them the element of truth, they would involve me personally. They could not be true; they could not have occurred. Betsy Webster could not have been despoiled and robbed, her property confiscated and parceled out among others, as alleged, by a plot extending back to the commencement of the administration of Webster’s estate, and I be ignorant of it, and not have participated!
But, upon this record, in the face of my brethren, with their jealous sense of all that concerns the integrity and honor of our profession, in the presence of this high and honorable court, I can most conscientiously declare that there is no case with which, in a professional experience, now pretty well matured, I was ever connected in which I have greater reason for an honest self-satisfaction than the proceedings which secured her freedom and her property to Betsy Webster. I look back to the day when it was almost the general professional opinion that she was not entitled to freedom or property, but was under the doom of slavery forever, to the day, when to maintain the contrary, required one to face the prejudices of this entire community.
I remember how studiously, how earnestly, how faithfully I devoted myself to her cause, and to win and secure for her what I believed were her rights.
Se was saved her freedom, and saved an ample property—paying for it not oppressively, not as much as she offered to others; not as much as she would have willingly given to us; but paying for it at a rate which we felt that men of honor and justice would recognize that we had dealt fairly with Betsy Webster. .. All her affections clung to this island home, where she had lived with her former master, sustaining, perhaps, relations to him not sanctioned by law, but sanctified by all the sentiments of her nature. … In this resolution she was inflexible; and a good providence, if not good lawyers, guided her destiny. In the enjoyment of that home, and of her own sacred feelings, dearer to her than all else, she has lived, undisturbed as any citizen of this community, even amid all the disorders and violence of civil war.
For the recovery of her rights I claim and am entitled to but little credit. It is mainly deserved by one whom the pleadings in the case have stigmatized by name with the vilest charges which malignity itself could fasten upon the basest character—M.M. Potter. He is in his grave, and I repat expressions heretofore chosen with the strictest propriety, that he left behind him the record and the fame of an honest legislator, an honest lawyer, and an honest man. … In the probate court, in the district court, in every forum of public opinion he stood her champion and her friend, until her freedom and property were secured to her by the fixed decree of the court of competent jurisdiction, and until it was justified and approved by the common feeling of the community.
The Supreme Court affirmed dismissal of the case. After so holding, the court said:
Having disposed of the case so far as relates to the property involved in it, we deem it our duty to make a few observations relative to what is of more value than property to parties indirectly made prominent by the pleadings of plaintiff. The charges of fraud against her attorneys by the plaintiff have as little foundation to stand upon in the minds of those well acquainted with them, as in the facts disclosed in the record. When we take into consideration what the laws then required, and more especially what public opinion was, relative to making slaves free, and placing them pecuniarily in a position superior to that of a majority of those born free and belonging to a different and dominant race, we are led to believe that no person of less legal ability and tact, of less influence in regulating and controlling public opinion, of less legal, political and moral standing in the community than her counsel, could have saved for her either the property or freedom devised.
Had the plaintiff, instead of expending what she has in this suit, appropriated the same in erecting a monument over the grave of the lamented Potter, and inscribed thereon what he did for her in the furtherance of the kindness and benevolence of him whose name she assumes, she would thereby have given stronger proof than she now has that her gratitude has not yielded to her avarice. The judgment is affirmed.