USA > Colorado > History of Colorado; Volume I > Part 83
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"Chief Justice Hall was a good man, but served only about two years, and was succeeded by Stephen H. Harding, a former Governor of Utah.
"Judge Charles Lee Armour, of Maryland, was one whom the irreverent called a 'cuss.' A talented, cranky, inscrutable, many-sided tyrant. Among other peculiarities he required every one taking an oath to swear on an old, musty Bible and kiss the begrimed book, regardless of the labial transfusion of pre- historic microbes.
"He became so unpopular in a year that, after petitions for his removal had proved unavailing, the legislature (which then held sessions annually) redis- tricted the territory-our first legislative gerrymander-and assigned him to a district over the range, consisting of the two Mexican counties of Conejos and Costilla, far from the madding crowd.
"But with sublime defiance he refused to visit his adobe castles in Spain or resign his office, but smilingly smoked his imported cigars (imported by bull train from Missouri), sipped his toddies, of which he was fond, drew his salary, of which he was fonder, and held out his term as a gentleman of elegant leisure.
"Judge Bradford had lived in the Gregory diggings before his appointment and so was one of the Pike's Peak people. He was a native of New England, having, to use his own expression, 'escaped from Maine' when young, and had been raised on the Western frontiers. A most remarkable man, and whose eccentricities, quaint speech and grotesque mannerisms were proverbial during his long and honorable life which closed a few years ago at his Pueblo home.
"Chief Justice Harding was another unsatisfactory official from the outside.
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"His venality and general unfitness became so odious that finally the bar organized what would now be termed a boycott against him. Every lawyer moved a continuance of his cases, and if not granted, refused to try them in his court from term to term, until one morning the Judge hitched up a team and trekked across the plains to the rising sun-literally, his former home, Rising Sun, Indiana.
"By the united effort of the Bar and people, in 1886, the then young Moses Hallet was appointed Chief Justice, and soon afterwards William R. Gorsline, of the Gilpin County Bar, an able lawyer, formerly a judge in Wisconsin, and uni- versally beloved, was appointed an associate justice, and in 1871 Ebenezer T. Wells came upon the bench.
"Judge Wells came here after being mustered out of the army at the close of the civil war and entered into active practice.
"He compiled the first revision of our statutes, a most painstaking and useful work, and his coming upon the bench was a welcome acquisition.
"Judge Belford came to the bench here in 1870, and came to stay ; he stayed, became one of us, and as the chanticleer of the Rocky Mountain roost, he helped chant the greatness of our new West from the peaks to the halls of Congress on the Potomac.
"From 1866, having a majority of judges of our choice, the courts moved on smoothly to the date of our admission to statehood.
"From the organization of the territory until its admission as a State there were only three Chief Justices- Hall, Harding and Hallett. Hall presided from 1881 to 1883 Harding to 1888, and Hallett-the last of this alliterative line- sat in the middle the last ten years of territorial life.
"The Associate Justices who served in the same period were the following: Charles Lee Armour, Allan A. Bradford, Charles F. Holly, Wm. H. Gale, Wm. R. Gorsline, Christian S. Eyster, James B. Belford, Ebenezer T. Wells and Amherst W. Stone.
"Judge Hallett was the youngest in years and length of practice of all the early judges when he came to the bench, but in study and knowledge of law he was accounted the equal of any and the superior of most ..
"Boyish in appearance he was familiarly called 'Moses' by the older mem- bers, and his natural modest shyness suggested the witty and genial General Bowen to always address him as 'Moses the meek.' I have been told, however, by old practitioners of his court, that, like his illustrious Hebraic namesake, the halo of meekness which our judge of the Federal Court wore as a conspicuous crown in his timorous years, has, through the friction of years and the habitual exercise of undivided official authority, become frayed, faded and almost in- visible.
"Upon the admission of the state the Supreme Court under our constitution continued to be the sole appellate court, as well as the court of last resort, until the business of that court could no longer be kept up without auxiliary remedy. Various plans were discussed by that Bench and the Bar. For myself, I always favored an increase of judges of the Supreme Court as the least complex and the most economic system, not only in the matter of expense, but in efficiency of accomplishment. During the last two years of my term-1885 and 1886- Judges Beck and Helm with myself made earnest efforts to have the judges
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increased to at least five in number, but a coterie of the political pontiffs of both parties at that time, for what seemed to be partisan or personal motives, set foot against and prevented all steps for the enlargement of the Supreme Court.
"The plan of a Supreme Court Commission, which was then being tried in several states, was finally agreed upon, and by Act of March 7, 1887, the Legis- lative Assembly provided for such commission, to consist of three members, and A. J. Rising, Thomas Macon and J. C. Stalcup were appointed as the first com- missioners.
"It did not take long to prove that the work of the Commission failed in giving proper relief. The work was not independent and final.
"The Supreme Court handed out to the commissioners certain of their pend- ing cases. The commissioners examined, decided and submitted their opinion to the Supreme Court.
"The latter had then to go over the whole case to determine whether they agreed with the commission, and if not, they had then to make and write an opinion themselves. This involved just about as much time and labor on the part of the court as if the commission had not existed. In fact, the function of the commission practically amounted to no more than a finding and report of facts and law, requiring re-examination in every case, and in many cases a rejection of findings and a different decision and written opinion ab initio.
"Hence, by Act of April 6, 1891, the legislature abolished the commission and established the Court of Appeals, consisting of three judges, and possessing limited appellate jurisdiction of cases tried in the nisi prius courts.
"The first judges of this court were George Q. Richmond, Gilbert B. Reed and Julius Bissell.
"That court has done a vast amount of business, and with results generally well approved by the bar, so far as I have ever heard.
"But it has failed of being the ideal aid in the division of appellate business of the state, not from the fault of the judges, but from a variety of circum- stances connected with the respective jurisdiction of the two appellate courts and the friction of their separate machinery-causes which need not be here discussed since they have been long understood by the Bench and Bar, and the end thereof is now come.
"Such in brief is an imperfect review of the appellate courts of the territory and state up to this date.
"By recent constitutional amendments and statutory provisions the Court of Appeals passed out of existence yesterday, to be merged into the greater Su- preme Court of to-day.
"However interesting it might be, there is not time on this occasion to speak of the work and the debated questions involved in the framing of the judiciary article of the constitution by the judiciary committee of the constitutional con- vention (of which committee I had the honor to be chairman), and of how much would have been incorporated in that article which has had to be done since piecemeal by amendment, and not all done yet that ought to be, had we known that the constitution would have been so overwhelmingly adopted at the election therefor, instead of being defeated as was feared if loaded with sup- posed encumbrances.
"I cannot refrain from alluding to the character of the laws enacted in the
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early sessions of the territorial legislature. Those laws were just what were needful, no more, no less; they were wise and beneficial and constituted a solid basis for the government of the state in after years. That the enactment of such laws was due chiefly to the able and honorable lawyers of that day is a matter of history.
"And much is due to the proper interpretation of that body of early laws by such able benchers as Hallet, Gorsline and Wells.
"It is a salutary legal adage that the proper function of a court is not to make law, but to ascertain and declare what is the existing law.
"Yet every lawyer knows that much law, and of the best quality, has always had to be made in a certain way by the courts, outside the letter of statutory enactment. All the maxims and foundation principles of law have come to us through the channels of the logic, analysis, moral deduction, interpretation and application to changing conditions, as enunciated by the courts through the centuries.
"Unique physical conditions and property rights in this new land called for new laws. Three paramount interests essential to the life and business of the citizen and the state were found here orphaned of parental law for regulation- mining, irrigation and stock raising-on the public domain. In the absence of national and local statutes and the inapplicability to conditions here of the common law, we owe primarily to Judge Hallett the establishment of the doctrine of prior appropriation of public waters, the most of the settled decisions affecting mining rights, and in the early years the decisions of questions arising out of damage feasant by range cattle upon unenclosed crops, before fences were required by statute, and on unpatented lands.
"It may be regarded as a fortunate circumstance, too, that this, our oldest judge in service, had the advantage of ten years on the bench of the Territorial District and Supreme Courts during the formative period of law before he was appointed to the Federal District Court of the state; for that experience, with his intimate knowledge of the history and local conditions of this country and his sympathy with a citizenship of which he has all his mature life been a part, have induced much of the harmony that has prevailed in respect of decisions upon like questions brought up for determination in the state and federal courts respectively.
"And now we have got back to our first estate-a single appellate court for the state.
"I beg to congratulate this present enlarged Supreme Court, Your Honors, and I congratulate the Bar and the people of this enlarged state on its behalf. I am glad that I have lived to see this culmination. In the personages of this court we count the sacred number seven, an omen which bears the mind back to the Nile, the Jordan, to the temples of Athens, to the seven wise men of the ancient civilization-the birthplace of law, art and philosophy.
"And I wish to pay a compliment to the taste which has adopted the innova- tion of the judicial gown when sitting en banc. Irrespective of the form or character of governments or questions of rank, title and caste, the judicial gown for the highest courts of law is no freak or meaningless affectation. It has the same uses in our profession that the robe of the officiating priest has in the clerical profession. It shuts out the differences and idiosyncrasies of the ordinary
Vol. 1-47
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garb; all badges of wealth or want or rank of the individual; the suitor, the advocate, the curious onlooker, all see not John Doe nor Richard Doe, but behold only the judge-the office; the impartiality and the dignity of personified Justice.
"A few days before graduation day in the Law Department of my university, the Dean of the Faculty, who was a gentleman of the old school, had recently been elected to the institution and had no knowledge of the ceremonies there, asked us if we had our graduation gowns ready. Gowns! Nobody had ever seen or heard of such a thing west of the Alleghanies.
"But have them he would; we were not to be graduated looking like the ordinary classical chaps.
"It was a small town and nobody could be found who could furnish such things. No tailor would undertake to make them. But the old Judge was not to be baffled. He went to a store and got some black serge or alpaca, hunted up an old lady who did plain sewing and told her what was wanted. She did not know how. 'But,' said the Judge, 'you know how to make a woman's night- gown, don't you?' She did. 'Well, then make them like your own nightgown; a yoke in the shoulders, but big open sleeves.'
"The class marched from a side door onto the rostrum in those fearfully and wonderfully made gowns and scared nearly to death the Hoosier audience who gazed upon the unexpected procession as upon a troop of spooks from the nether world. When I had been out here in the Pike's Peak country a year or two I had an old trunk shipped to me by ox train for the sake of some law books I had left in it, and on opening the trunk found that forgotten gown. I kept the treasure until moths and rust consumed it and naught was left but the memory that I had possessed and worn-though unofficially-the first legal gown ever known in the Rocky Mountains.
"This occasion is to me deeply impressive. I confess to feeling as though I had lived through the creation of a world. In the first courts ever held in the Arkansas valley the judge sat on a small goods box with a larger one for a table in front of him. The lawyers sat on boards supported by boxes or chunks of wood. The others squatted on the dirt floor and leaned against the adobe walls.
"The judicial robe of old Judge Bradford was oftenest a Mexican blanket. Everybody smoked tobacco pipes during the proceedings.
"Here now we are under the dome of a three-million-dollar palace. We tread floors of marble, and walls of onyx and alabaster echo our speech. This city and state are known in all the civilized world.
"Looking back to the beginnings in the wilderness, happy is he who can say with the old Roman: 'All of it I have seen and a great part of it I have been.'
"The present reorganization and amplification of this court marks an epoch in the history of our judiciary and the state.
"This high Appellate Court is now more perfectly than ever equipped to do · more and better work than ever before.
"And whatever may have been thought or said of other tribunals, the Su- preme Court of Colorado has hitherto had the respect and confidence of the people of the state, and that faith should now be strengthened.
"The security of the rights of the citizen, the stability of the state, the per- petuity of the nation, all rest upon the integrity of the judiciary. Laws may
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be made and laws pass away. Executives may come and go, the wicked may oppress and may flourish for a time in their oppression in the games of human affairs, but to the wisdom, integrity and potency of the courts-especially the courts of last resort-we must look for the results so strikingly expressed by those lines in Festus :
"'Kings, queens and knaves would trick the world away Were it not now and then for some brave ace.'"
PIONEER BENCH AND BAR
In an address before the Colorado Bar Association in 1908 Judge Wilbur F. Stone, newly elected president, spoke as follows concerning the early history of the bench and bar in the territory and state:
"In my boyhood I often heard my grandfather tell of things which hap- pened forty years before, and I wondered how he could remember what seemed to me like stories out of Plutarch's Lives.
"But when our years have lengthened to about the seventieth degree of longitude we become retrospective, and find it easy to flit back and forth on the wings of memory over forty or fifty years of our life's journey-each one of us scanning every mile he traveled, noting especially the straight path he himself made, and the many crooks and turns in the trail of his fellows.
"At that age, too, we are liable to become afflicted with what may be termed garrulitas senectutitis, when loquacity of the past in the most virulent form is apt to set in-worse than cacoethes scribendi.
"The settlers of Colorado came here into No-Man's land. The conditions were without precedent, save in the case of Utah and California, and both Utah and California were different. Immediately west of the Alleghanies migration and settlement crept along slowly, an agrarian outgrowth, making farms and spreading, much like forest or vegetable increase, where seeds dropped from the parent stock take root and advance from the outer rim of contiguous setting. In such case the frontier settlers are always joined to the government, laws, rules and customs of the older settlements, linked to their business and interests, have their aid and protection and with little need for creative effort.
"Contrasting with such conditions, the Pike's Peak region was known only to explorers, trappers and Indian traders. Arid in climate and soil, high in altitude, the pioneer invasion of our first real settlers was induced only by gold, the thirst for which had been sharpened by the California example-a thirst of mankind reaching back through human history, ages before the Greek Argonauts of the Golden Fleece.
"And so, to this new region, mapped as a desert waste, six hundred miles from frontier government, our pioneers came, not creeping but marching in armies, were transplanted, set down where they had to begin without existing law or government, and thus left to their own creative ability and volition.
"The history of the beginnings of Colorado is a most interesting chapter of American annals, since it stands almost alone as an example of the genesis and evolution of self-government by civilized people-former citizens of States, but
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suddenly transplanted far beyond the immediate jurisdiction, restraints and pro- tection of the laws and authority of State or National Government.
"Here, then began a school of law-making and law-administration in which every man took part, not for the government and observance of others, but of themselves.
"Think for a moment of this as an education and foundation for the future citizenship of this great but then unborn Commonwealth of Colorado, wherein a President of the nation is next week to be named.
"Every mining camp, embryo town and agricultural settlement became an independent democracy, a loyal American sovereignty. The open air groves were the first legislative and judicial halls. 'The court, the camp, the field, the grove,' which the old poet named as 'the summit of life,' we recreated here on the crest of the Western continent.
"This condition of peoples' governments existed here for two or three years before Congress established the Territory of Colorado.
"The laws and courts were simple and suited to the immediate needs and conditions. Appeals were allowed from the court to the people at large, who heard the cause de novo and decided it by a majority vote.
"The three principal writs or modes of procedure were attachment, replevin and injunction. If one claimed an indebtedness he attached the debtor. If he claimed the right of possession of anything another fellow had he replevined it, and if he wanted to prevent another from doing anything to his damage, he en- joined him. The ancient and venerable writ of injunction was at that time duly respected as a beneficent and necessary remedy. There was no politics in it then, and nobody was howling about 'government by injunction.' Where the plaintiff got judgment he saw that it was executed without stay. (It may be added, parenthetically, that, in rare and desperate cases, when the plantiff failed to get judgment or failed in its execution, he executed the defendant.) As to the character and results of these people's courts, I can sum it all up by declaring that, if their administration was not always strictly law, it was rarely ever any- thing else than acknowledged justice.
"Grim justice was sometimes mixed with grim humor. A horse thief had escaped from custody at Cañon City one morning, stole another horse he saw hitched on the street, and 'lit out' down the road towards Pueblo. Only one good horse could be found on which to make pursuit, and no one man would undertake the job. There chanced to be staying there for a few days a well- known character, a professional gambler, who had just come up from New Mexico. He was called 'Gentleman Charley,' as he always dressed like a city clergyman, in a long-tailed black coat, white shirt and necktie. He was tall, soft-voiced, self-possessed and the politest, mildest mannered man ever seen in the country at that day, but was supposed to be a desperate criminal.
"He volunteered to retake the culprit if the sheriff would furnish the horse. This was done, and Charley mounted with a Winchester rifle and two lariats, and rode off. He overtook his man at Beaver Creek, covered him with his gun, bound him with one of the lariats and hung him with the other to the limb of a tree, and returned to Cañon, leading the stolen horse. 'Mr. Sheriff,' said Charley, 'here's the horse, and if you want the man you can go and get him. I tied him to a cottonwood at the Beaver Creek ford, so he can't get away before you
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reach him, but you'd better take a wagon, as he may not be able to walk, owing to cold feet.' The Sheriff and a posse drove to the spot, found the facts as described, and buried the victim at the foot of the tree.
"The penalty for horse-stealing was death at that time, under the Colorado statutes. Good horses were scarce-and there were no automobiles.
"This is no dime-novel story, but an absolute fact. I knew 'Gentleman Charley' well, and he was a character for a border romance.
"Early lawyers had some queer and amusing experiences.
"A bright young lawyer told me the story of his first case out here. He landed at Central, in 'Gregory Diggins,' one evening, after footing it up there from Denver, in 1860, dead broke. He couldn't pay for lodgings, so as dark came on he lay down supperless to sleep in a dry sluice trough in the gulch. He was awakened early in the morning by a miner with a shovel, who shouted: 'You'd better get out of this box, young man, for I've turned the water in, an' it'll sluice the dust out' o' ye in about a minute.' Aleck jumped up, loafed around awhile, and then sauntered up the hill leading to 'Missouri City,' near Russell Gulch, and being a Missourian himself, thought he might find or make some friends there. Half way up the hill he met a man in long miners' boots coming down hotfooted. Aleck began to ask him some questions, but the man told him he was in a hell of a hurry to hunt up a lawyer to try a case then waiting for him up at Missouri City. Aleck's throat was dry, and his heart jumped as he exclaimed : 'Why, I'm just your man; I'm a lawyer and I'd like to try your case.' The tall miner looked down on Aleck's diminutive form and boyish, grimy face, saying, 'You a lawyer? You look less like a lawyer nor any chap I ever seed afore.' 'Well, I am one,' says Aleck, in his desperation, 'and a good one, but I've just landed here, and I'm awful hungry.' 'Well, my boy, they're waitin fur me up there, an' I'll try ye; if you git beat I can appeal the case and git another lawyer.' As they walked up the hill, Aleck learned briefly the main facts of the case, entered the log cabin where the miners' court was waiting, and proceedings began. Aleck felt that it was life or death for him, but he was gritty and he cut loose, assumed to know all the law and some to spare; inspired by desperation, he pounded the table-a board on top of an empty barrel-scattered the papers, sawed the air and pawed the dirt floor like a lassoed steer in a Texas corral. He won the case and his delighted client took him into a shack, produced his buckskin dust bag and the little weighing scales, and weighed out to Aleck for his services three ounces of gulch gold. Fifty dollars. Great God! Aleck had expected about two dollars and a half, Missouri- Justice-of-the-Peace rates. He started out to look for grub; he saw a sign on a little slab grocery, reading, 'Frute & Vegitabels'; he rushed in and inquired what kind of fruit and vegetables they had. The shopkeeper proudly replied: 'Dried apples from Missouri, and navy beans!'
"Aleck went to Montana in 1866 and became a leading lawyer and a judge.
"An odd experience of my own may be pardoned mention.
"In the early sixties I was Assistant United States Attorney, with then U. S. Attorney General Sam Browne. The U. S. Marshal, 'Cam' Hunt (afterwards governor ), appointed me also a special deputy marshal for convenience in serving process up in Park County, where I then made my residence, and so I sum- moned jurors and witnesses on occasion and sometimes served warrants of arrest
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