TRIAL OF CLAIB HERBERT

General George F. Alford of Dallas, Texas, has told many good stories to the press, but the following is among his very best. He says it is not original, but his friends who know his peculiar felicitous style will not believe it. The general is one of the oldest residents and best known men in Texas—a scholar, poet, statesman and patriot.

The name of Jones Rivers awakens in the minds of many of the older residents of Texas, and especially of the older members of the bar, memories of the wit, orator and lawyer who played so conspicuous a part for many years in the courts of Texas, and more particularly in the counties contiguous to the Brazos and Colorado rivers, thirty or forty years ago. Bright, joyous and witty, even the approach of death could not conquer or repress his natural exuberance of spirit; for when, on a cold, dismal evening in November, in the then dreary hamlet of Georgetown, now a prosperous city, he was told that his hour had come, he met the relentless messenger with a smile, jested in his very face, and, with a witticism upon his lips, passed into the land of shadows.

He was genial in manner, eloquent in speech, forcible in argument and strong in everything save the power to resist the seductive influences of the intoxicating cup. He possessed in an eminent degree the “devine afflatus” that belongs as truly to the natual orator as to the true poet; and when enlisted in a cause that aroused his sympathies or when he felt the stimulating influence of the wine cup, he could, with dramatic skill, touch the hearts of his hearers, and by the mesmeric fervor of his matchless eloquence stir their deepest emotions. This irresistible power was never more signally displayed than in the defense of his friend, Colonel C. C. Herbert, familiarly known as “Claib Herbert” in the district court of Colorado county, more than a third of a century ago.

Claib Herbert was a superb type of a Southern planter under the old regime. Born in Virginia, reared in the fertile fields and genial climate of Texas, with a big heart in a brawny, muscular body, he was hospitable, liberal, generous, brave and sympathetic. He lived on his beautiful plantation on the banks of the charming Colorado, just below the town of Columbus. A man of learning and influence, he served as a representative in the Texas legislature and the Confederate congress, and held a commission as colonel in the Southern army. The family was a distinguished one in the annals of Virginia, of Texas and of California; his brother, Colonel Phil Herbert, having been a member of the National congress from the last named state before the late war between the states, and was killed gallantly leading his regiment of Texas cavalry in the desperate assault upon Fort Butler.

As Claib Herbert sat one day at his table, with a number of guests, the meal was interrupted by the appearance at the door of a little boy, perhaps 8 years of age, an orphan who lived with a neighbor named Howard in the relation of a ward or apprentice. The child was crying bitterly, trembling, and seemingly frightened and suffering. Herbert questioned him, and the boy said between his sobs that Howard had beaten him unmercifully, and without cause. Herbert carried him into an adjacent room, examined him, and found his body cruelly striped and bearing other evidence of severe punishment. The kind planter soothed him, and seating him at the table, assured him of protection, and endeavored to quiet his fear that Howard would pursue and carry him back.

This Howard was a Yankee of the Mayflower type, a representative Puritan, pharisaical in pretention, sanctimonious in manner, solemn in visage, with drawling, nasal mode of speech, and a countenance that was a perpetual interrogation point. Of a cruel nature, he was destitute of bowels of compassion, having apparently but one bowel, and this seemingly illustrated the maxim of geometry with affirms that the shortest distance between two points is a straight line.

The boy’s fear of pursuit was not without cause. Hardly was the dinner finished when Howard rode up to the gate and called for Colonel Herbert, who responded with promptness. Howard inquired whether he had seen the boy, adding that it had been necessary to chastise him severely that morning, and that afterward he had run away, and he had traced his bare feet coming in that direction. Herbert made no reply, but walked quietly out through the open gate--seized Howard as he sat on his horse, pulled him off, and gave him then and there an unmerciful flogging saying, as he released him: ”That will teach you not to beat another child, you infernal scoundrel!”

Howard remounted his horse and rode away without indulging himself in any remarks.

The district court was then sitting in Columbus, the seat of justice of Colorado county. Howard proceeded by the most direct road to that place, and appeared without delay before the grand jury, who promptly brought in a bill of indictment against Herbert for aggravated assault and battery.

Jones Rivers, as counsel for the defendant, demanded an immediate trial, and a jury was forthwith impaneled. Colonel Edwin Waller was district attorney, for whom Waller county, Texas, was named as a memorial. The only witness for the state was Howard, who told his story, was rigidly cross-examined, and the prosecution rested their case.

Jones Rivers stood up. “If the court please,” he said, “the defendant in this case has no evidence to offer, excepting the feeble child that has been beaten by the prosecuting witness.”

Here he led the little boy forward and seated him at his side, in front of the jury. The boy was even smaller than his years, of delicate physique, and showed in his pinched face and scant clothes traces of suffering and privation--the look of neglected orphanhood in proverty.

The case was closed. Counsel for the state said that in submitting it to the jury he had only to say that as there was no defense, the jury could do nothing but return a verdict of guilty.

Rivers knew that every technical rule of law was against his client, and that there was no legal defense to the state’s case; but at the same time he knew every man on that jury, and all their domestic relations. The knew that the oldest juryman, the foreman, had married late in life and had two children, twin boys, just the age of the little orphan, to whom he was passionately devoted. He knew, too, that he had been a fellow soldier in the revolutionary army of Texas, with the father of the boy that had been the victim of Howard’s brutality. Making no preliminary reference to these facts, however, Rivers said:

“Gentlemen of the jury, the State of Texas has presented her evidence and stated her case, and I rise now to speak for the defendant, Claib Herbert, your fellow citizen, and your neighbor, your friend and mine, and the friend of all who need a friend, and upon whose ear the orphan’s cry never falls in vain. The only evidence I have to offer on his behalf is the pale face, the tearful eye, and the frail, bruised form of the little orphan that sits at my side, the child whose heroic father shared with some of you in days now gone the hardships of the camp and the dangers of the battle. He was at San Jacinto when the star of the young republic rose triumphant above the historic held, and with him, you, Mr. Foreman, participated in the undying glories of that eventful day. And when peace came you began, side by side, as neighbors and friends, the battle of hardships and proverty, in the new land that you had aided in rescuing from the hand of the spoiler. That battle you have fought well, Mr. Foreman, and are still spared to your grateful country; but your old comrade has been gathered to his fathers. He married late in life and accumulated but a scant store of this world’s good, and this child, the only fruit of the marriage, was, in the providence of God, left a penniless orphan, and what fate befell him you know full well. For aught that I know, Mr. Foreman, you may have now, when old, little ones that are as dear to you as was this poor child to that aged father who sleeps his last long sleep in the toil he periled his life to defend.”

As Rivers proceeded, he drew near to the jury, and spoke in soft, but earnest ones, while an occasional tear stole down the cheeks of the old foreman. Rivers saw this, and continued:

“Time is fast weaving threads of silver among your dark locks; your feet are pressing the brink of the river that flows between this and the unknown land, and soon, leaving perhaps to your little ones an inheritance of poverty, as did the father of this child to him, you must go to join your silent comrade on the other side of the dark, cold river, and then perchance these dear little ones may be consigned like your comrade’s boy, to the tender mercies of some brutal Howard. Then the little arms that so often encircled your neck in their loving embrace may be raised to shield the tender forms which you now clasp lovingly to your bosom, against blows such as fell so cruelly on this poor little orphan. Then may the dimpled cheeks that now glow with the rosy hue of health, be sunken and pale from neglect and want; the eyes that now brighten at your coming, may be red with weeping and the gentle voices that fall like sweetest music on your eager ears, be heard pleading in pathetic, beseeching tones for mercy, as the voice of this child fell on the unheeding ear of the prosecuting witness; and then perchance God in his infinite mercy may rise up for those little ones a friend and an avenger as He raised up Claib Herbert to avenge the wrongs of this defenseless orphan, and perhaps that friend may be, as Claib Herbert is this day, charged as a criminal, and if so, Mr. Foreman, would you have him punished?”

As the last words were uttered, Rivers was so near the old foreman that he could lay his hand on his head, and apparently spoke to him alone. The climax was reached; human nature could stand no more. The old foreman rose from his chair trembling in every nerve, and raising his clenched hands above his head, in a voice quivering with emotion cried:

“No! no! by the eternal, no!” and dropped into his seat, with his face in his hands, sobbed aloud; and judge, counsel and bystanders mingled their tears with his.

Rivers at once sat down, and the district attorney arose to make a concluding argument for the state, but before he had concluded the opening sentence, the old foreman, with streaming eyes and with a tremulous voice said:

“Edwin Waller! sit down! You are a good man and a good lawyer, but --sit down! We don’t want to hear you talk another word.”

Waller sat down, and the judge simply read the statue defining the offense and fixing the penalty, and directed the jury to retire and consider of their verdict. Whereupon the old foreman rose, and without any consultation whatever with his co-jurors, said:

“Not guilty, your honor; not guilty!”

“So say you all, gentlemen?” asked the court.

“So say we all!” responded the entire jury, and this verdict having been properly reduced to writing and signed, the jury were discharged.

Thus the trial of Claib Herbert was ended, and thus the most remarkable scene ever witnessed in a Texas court of justice closed.--Chicago Law Journal.

Weimar Mercury, November 16, 1901, page 1