History of Colorado; Volume I, Part 84

Author: Stone, Wilbur Fiske, 1833-1920, ed
Publication date: 1918
Publisher: Chicago, S. J. Clarke
Number of Pages: 954

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and brought down prisoners for trial at Denver and Central City. At a term in Central I had, as deputy marshal, brought down a prisoner not yet indicted. In the course of my several Poo-bah duties I procured the indictment by the grand jury and drew the bill-acting for the U. S. Attorney.

"When this prisoner's trial came on in course, the trial jury panel became exhausted and the marshal found it difficult to get talesmen. Meeting me on the street, he said he needed me as a juror. I protested, but he said Judge Lee Armour never noticed the jurors, and as Gen. Brown alone would prosecute the case in court, I would not be noticed by the Bench, and the Bar would wink at it as a good joke. So I was sworn in without questioning, and in my diversified capacity as juror, assisted in returning a unanimous verdict of guilty upon my bill, as attorney, against my prisoner, as marshal. Marshal Hunt never quit telling the story on me and declaring that I was 'the handiest official-for a Democrat-that the Republican administration had.'

"After the first three or four years of unfamous-if not infamous-carpet- bag judges, during the Civil War, had passed, the most distinguished benchers of the Territorial period were Judges Moses Hallett, William R. Gorsline, E. T. Wells, all of whom were appointed from the Colorado Bar, and James B. Belford. During the administration of these able and upright jurists the laws affecting the new and peculiar conditions of Colorado received their best interpretation and settled the fundamental structure of our succeeding state government and the rights of the people thereunder.

"It was easy to carry existing laws from the Atlantic States across the Alleghanies and extend them gradually over the Ohio and Mississippi Valleys, where like conditions prevailed, but here, new and entirely different conditions, geographical, climatic, economic and social, had been imposed by nature. Irriga- tion, mining and non-agricultural public domain begot new rights of person, property and business, demanding new legislation, which in turn exacted judicial interpretation, construction, application, consideration of possible results and the application of the doctrine and rules of selection and adaptation.

"In this work of building stable law upon primitive customs, 'squatters' rights' and ex necessitate rei conditions the able lawyers of our early period, many of whom were also members of the Territorial Legislature, lent their aid with zealous energy and efficiency.

"In all this judicial work Judge Hallett did the greatest part, during his forty years of judicial service; an index of which is found in the first two volumes of the Colorado Supreme Court reports, which he himself prepared for publication, and also in his decisions as Judge of the U. S. District Court.

"Judge Gorsline was an eminently clear-headed judge, of amiable disposition, whom everybody liked and respected.

"Judge Wells was, and still is, the most painstaking and industrious lawyer who honors our profession. He made the first revision and compilation of the Colorado Statutory Laws. Tom Macon used to say that Judge Wells was the only lawyer he ever knew who could work fourteen hours a day every day in the year, and thrive on it. He is still in his office, and I never heard of his being sick in forty years.

"Judge Belford is so well and long known as one of the most brilliant men

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in the profession, that he requires no analysis of characteristics in my brief references on this occasion.

"The most noted lawyers of Territorial days were Gen. Leavitt L. Bowen, a former Attorney General of Nebraska, a learned constitutional lawyer ; J. Bright Smith, of Pennsylvania, a tall, handsome gentleman of polished manners and a born lawyer; his brother, Ed. L. Smith, a Bar leader; George W. Purkins, of Virginia, a cultured lawyer of the old school, classical and the most graceful and eloquent speaker we ever had; Henry M. Teller, our present Senior United States Senator, whose public and political life and services are interwoven with the history of the State and Nation for the last thirty years; James M. Cava- naugh, a former Congressman of Minnesota, a tall, elegant fellow whom we all called 'Jim, the Irish Orator'; William S. Rockwell, a former Wisconsin judge; his brother, Lewis C. Rockwell; Willard Teller, brother of the Senator; Hugh Butler, who is still among us, with his stately tread and distinguished manners,- one of the best civil law pleaders at the Bar; Alfred Sayre, the first law partner of Judge Hallett, and for many years the leading lawyer in practice in Denver ; Charles C. Post, of Georgetown, who served a term as Attorney General of the State; Robert S. Morrison, author of our standard text-book on mining law ; George F. Crocker, formerly City Attorney of Chicago, a brilliant lawyer, and speaker of the House in the Territorial Legislature of 1862; Gen. Bela M. Hughes, the early-day veteran of the Bar, and of whom it could be said : 'None knew him but to love him, and none named him but to praise'; John Q. Charles, the most industrious and studious book lawyer of all the old Bar ; Lewis B. France, the most critical and technical pleader of all, the first reporter of our State Supreme Court Reports, and in his last years the author of several charming literary volumes; Gen. Sam. E. Browne, the first noted U. S. Attorney of Colorado, whose rollicking humor and amiable spirit shed sunshine upon every one he met, and whose daily good cheer and flowing white beard on the street and in the forum will long be missed; Vincent D. Markham, Judge George W. Miller, Governor Charles S. Thomas and Hon. Thomas M. Patterson were a notable quartette of lawyers, famous alike in the forums of the court and political life.

"In Southern Colorado, George A. Hinsdale, Henry C. Thatcher, George Q. Richmond and John M. Waldron of Pueblo; Thomas Macon of Canon City ; Albert W. Archibald, Spence M. Baird and William G. Blackwood of Trinidad; Adair Wilson and John G. Taylor of 'the San Juan country.' were the most noted. Hinsdale was a pioneer of 1860, of New England birth, a graduate of Michigan University, a scholar, an able lawyer and an influential politician of the old school Democratic brand. The County of Hinsdale and the Hinsdale public school of Pueblo perpetuate his memory. Thatcher was a member of the Constitutional Convention and the first Chief Justice of our State Supreme Court. Richmond was President of our first Supreme Court Commission, a former adjunct of the Supreme Court.

"John Waldron, who is yet in the zenith of his successful career, started as a boy protege of mine in Pueblo, and his beginnings and progress-unknown to most of the Bar now living-deserve a sometime sketch, replete with the romance of real life, but too lengthy to be presented here.

"Thomas Macon was the leader of the Bar at Canon City, one of the best

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criminal lawyers of the West, and a famous advocate in trials before a jury. Archibald was the pioneer lawyer and one of the first American settlers at Trin- idad. Blackwood had been a judge of the Supreme Court of New Mexico, was a genius and one of the most accomplished and versatile gentlemen I ever knew ; a lawyer, orator, litterateur, actor, musician and gifted poet. Gen. Baird was a remarkable man; was Attorney General of the 'Republic of Texas' before it was annexed and admitted into the Union as a State; served as a Confederate Colonel in the Civil War, came to Colorado and settled at Trinidad, where he practiced law until his death. He spoke Spanish as well as his native English, and his speeches in the Spanish tongue were the most fluent and eloquent I ever heard. He was a giant in size, his leonine head matted with thick, curly hair, and his shaggy beard ranked with that of the gray poet, Walt Whitman. He was known by all the Mexicans in New Mexico and Texas as 'Chino Tejano'- Curly Texan.

"The most of the lawyers I have mentioned here were those who attended the courts of the three judicial districts, traveling round the 'Circuit' as was the custom in the early days of the old West, east of the Missouri River.

"The Southern or Third Judicial District then included all the southern half of the Territory from the 'Divide' to New Mexico, and from the western boundary of Kansas to the Utah line. Courts were held at Colorado City (later at Colorado Springs), Cañon City, Pueblo, Las Animas, Walsenburg, Trinidad, and over the mountains at San Luis de Culebra, Conejos, Del Norte, and across the Continental Divide at Silverton.

"Over this vast region, larger than an average State, the lawyers with the judge and other officials, litigants, witnesses, Spanish interpreters and often prisoners for trial, traveled from court to court in a motley caravan of wagons, ambulances, primitive buggies, horseback and muleback ; over dusty, sage-bush mesas and mountain ranges, fording rivers; in heat, snow, wind and alkali dust; camping out nights where there were found 'wood, water and grass'; fishing tront in the mountain streams, occasionally shooting an antelope, cooking their own 'grub,' smoking pipes round the campfires, singing songs, swapping lies, sleeping in blankets on the ground; then holding courts within rude adobe walls, attending Mexican fandangoes at night-dances got up in honor of the Court- and having more fun, legal and unlegal, than the Bench and Bar have ever seen since in the effeminiate days of railroads and fine court houses.

"It was a long road then from the Cache la Poudre to the Garden of the Gods at Pike's Peak, and long thence to the Purgatory. But from the purlieus of the Gods to Purgatory it is mostly down hill. 'Facilis descensus Avernum.' And we were also reminded of the line in Festus, where the devil says: 'The road to hell needs mending.'

"Old Judge Bradford was the oddest, most unique and eccentric character in the Territory. It would require pages to fully describe him, and nothing short of seeing and hearing him would picture him. A most upright man and a good judge, with a marvelous memory, but so absent-minded that a stranger would pronounce him crazy. Fat, gross, slovenly, he was withal the most ungainly and awkward man in person, speech and mannerism that ever lived. Before he came on the Bench he was once in a case in a miners' court at Central City, when the presiding judge made a decision against him which Bradford regarded as wilfully

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outrageous. He rose and gazed a moment at the judge and then, in his inimitable manner, said, 'All I've got to say to that decisioin is-I was about to say-I don't know as I ought to say it-well, on the whole, I guess I will say-in the words of the poet-"O, shame! where is thy blush?"'

"When Bradford was Territorial Judge he was once called to hear a murder case at Central City at the request of the Judge of that District. The Court was held in the old Langrish Theater. After the evidence was all in, a night session was held to hear the arguments to the trial jury. The miners came in to hear Jim Cavanaugh make one of his famous speeches for the defense, and the house was packed, galleries and all. Cavanaugh had got fairly under way and soaring into the clouds, when the sheriff discovered that the joists were giving way along one wall and the main floor was slowly sinking. To avoid disaster the sheriff slipped quietly to the side of the judge, and whispering to him the situation, suggested that he immediately announce a recess of the Court, on account of his illness or other pretext, so that the house could be emptied with- out the audience knowing of the danger.

"Judge Bradford suddenly whacked his gavel and called out: ‘Mr. Cava- naugh, take your seat.' Jim stopped in the middle of one of his longest words- like 'in-vul-ner-a-bil-i-ty'-and turning to the Court, said: 'If your Honor please, I am not aware of having said anything improper-' 'Sit down, I say !' again squeaked the Judge. 'I am certain that I have neither said nor done any- thing to offend the Court, and I decline to be interrupted-' exclaimed Jim, defiantly. The Judge brought his gavel down again on the table and yelled out in his highest falsetto key: 'I tell you to sit down, Mr. Cavanaugh; this is not a question of politeness between you and me, Mr. Cavanaugh; the question is whether this whole shebang is going to hell or not !'

"Some of the pioneer lawyers tried their luck in mining, but with ill success. I have seen them often in red flannel shirts, smoking a pipe while sitting on a Blackstone, or ruminating under the green-leafed pines. Seldom a Jay sat on a Bench, but one could Marshall a flock whom the sun and desert wind had made Ta(w)ney.

"Judge Hallett, soon after his arrival here in the summer of '60, went up to the 'diggins' and tried a little mining, with varied results. One week he struck a streak of pay dirt, and to celebrate his luck he invited two or three friends to dinner with him the next Sunday. Moses Hallett was a youthful, lanky chap at that time, rather timid in nature, not given to quick friendship, but was genial and companionable with his select few. On this occasion he made unusual prep- arations to entertain his guests. Of course, like all other miners in camp, he bached and bunked in a shack, cooked his own grub and kept in order the tin dishes. He now replenished his stock of gulch fruit and vegetables, and secured a few luxuries. Among the latter was a pound or two of unclassified butter. To keep this cool and safe, he put the butter in a tin pail and hung it on a pine limb Saturday night. Sunday noon the friends arrived and disposed themselves . on stools and cracker boxes under the pines. Moses had fished up from some recess of his cabin a Sunday suit of store clothes in which he had that day arrayed himself. The dinner was laid out on a miner's table-a la maitre d'hote- and the company was just starting in to test the structure of the hand-made biscuits. when Moses thought of the butter which he had forgotten to take down

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in the morning and set in the sluice box. Now it had so happened that the sun had been blazing six hours on that tin pail, so that at this moment the said alleged butter was in a state of fluidity a little below the boiling point. Hallett was somewhat rattled when he grasped the situation, and climbed on a three- legged stool to grasp the butter. Now a three-legged stool has in all history played a leading role in the undoing of man-and maids. Moses, reaching high over his head, seized the pail by the rim, instead of the bail, and at this psycho- logical moment that stool started to walk off backwards on its three legs. Of course, as Moses clung to the rim edge of the pail in his descent, the pail turned bottom side up before the bail or limb broke, and a cascade of tepid oleoporkerino flooded from head to heels the future Chief Justice of all this domain. Were any remarks made soon after the fall?

"I read a story of Bishop Potter that may suggest an answer to this query. The Bishop was fishing with a friend who was given to emphatic language when out of the hearing of the clergy. After long waiting, the banker drew a fine big fish out of the water, which gave a flop or two, freed the hook and disap- peared. The fisherman stood still, looked at the Bishop, then at the water, then at the far horizon, but never spoke. Bishop Potter looked at his friend quiz- zically a minute and then said: 'George, that is the most profane silence I ever listened to!'

"In the summer of 1875, Judge Hallett, after holding the courts in the San Luis Valley, went over the range and opened the first court at Silverton. A party of us accompanied him, consisting of Adair Wilson, John G. Taylor, Judge Love and Tom Bowen (afterwards judge of that district, and later U. S. Sen- ator), John W. Henry, George Q. Richmond and myself-a rollocking lot of legal blades as ever traveled the circuit. We journeyed from Wagon Wheel Gap on horseback, following the Rio Grande River up to its very source, and still on up the dizzy trail to the crest of the range, where the first drops of water trickled from the melting snow banks to form this great river; then over the top and down Cunningham Gulch 2,000 feet, so steep that the horses would often slide for rods on their haunches, to the Animas River, on the Pacific side, where nestles Silverton in an emerald basin walled in by snow-covered peaks as lofty as the Alps. The streams were alive with trout in those days, and Adair Wilson told us that when the most active trout got tired of the monotony of the Atlantic waters, they swam up to the source of the river, and then scaled the summit and slid down to the Animas and mixed with their Pacific relations. Adair swore he 'could prove it, too, if old Bill Jones was alive.'

"The Silverton Hotel proved very interesting to us. The upper floor was one large room about forty feet square. Here we all slept with about forty others, on hay mattresses spread on the floor. The pine boards of the floor, laid down green, had shrunk so that there were cracks between them an inch wide. At night there was talking and laughing and singing and cussing by the bunch until midnight. Underneath were the bar-room, dining-room and kitchen, divided by like boards and cracks, and the habitués of that lower deck prolonged. the bedlam until 2 a. m. Adjoining the kitchen was a corral full of pack mules and burros-the mountain nightingales of the mining camp-and these raucus songsters started a braying concert at 2 and closed at 4 a. m. An interlude of foghorn snoring fifteen minutes; and then the hyena cooks in the kitchen began to pound the india-rubber beefsteak with clubs on a pile of loose boards. At

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five the bar-room opened with a monologue, followed by a dialogue, and then broke into a chorus of polyglotic omnilognes. At six breakfast for the mining gang, and seven for the other fellers. Meanwhile, there came up into our flat, through the wide floor cracks, a cloud of incense bearing the amalgamated odors of tobacco smoke, unrectified whisky, corned-beef and cabbage, codfish, fried liver and onions, stale fish and burning bones and feathers.

"To do honor to the Judge of the Court, a corner of our caravansary had been set apart for his exclusion, screened by a board fence about four feet high, fitted up with a pine bedstead and shuck mattress; one chair, a goods box for a table, and a tin wash pan with a pail of water. This arrangement was so exclusive of sights and sounds, that we didn't laugh; oh no, I guess not.

"The rest of us had to go down to the creek to wash our faces.

"We got a barrel of fun out of that historic first court in the 'San Juan Country,' and now when I go there on a Pullman car, I live over the old days only in memory, but find no more fish, fun and fandangos.

"At one of Judge Hallett's terms of court at San Luis de Culebra, there was a funny case, involving the identity and ownership of a jackass. A common laboring Mexican claimed the animal as one he had raised and owned from a foal, and that it had strayed or been stolen from him. He had discovered it in possession of an old gray-bearded American, named Palmer, had replevined it before an alcalde, and on trial was awarded it as his own property. Palmer had appealed to the District Court, claiming the burro as his own and bore his brand-a horseshoe brand-and that he had raised it from the time it had opened its meek eyes upon the Sangre de Cristo range.

"When the case came on in Judge Hallett's court, Palmer employed George Q. Richmond as his lawyer, but the Mexican was poor and so went to trial with- out a lawyer. The plaintiff and defendant were the only witnesses, each swear- ing to ownership, and the case rested on the alleged brand, which had healed up and haired over -- if there ever was one -- so that an examination of the jackass, de occulis, so puzzled the jury, that they disagreed and were discharged on the last day of the term. Richmond was so disgusted and laughed at for being beaten by the lawyerless Mexican 'greaser' that he declined to move for a new trial, and so Jesus Maria Gonzales rode the ass away.

"At the request of the Bar present at the trial, the district attorney, aided and abetted by the court, perpetrated the following asinine ballad on this cause celebre, which I have preserved as a sample result of the inspiring air and Mexican aguardiente of the San Luis Valley-of the vintage of 1876:

"A BRAY FROM THE COURT

"The leading case in court this term Presents a question rare ; 'Tis not of human rights or wrongs, Or flagrant crime laid bare ;

" 'Tis not of lands and tenements, Nor yet of grain nor grass ;

But whether a horseshoe brand was stamped Upon old Palmer's-burro.

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"The jury sat all day and night And swore about that spot ; For one declared the brand in sight, And eleven swore 'twas not.

"The Judge discharged the jury, then, And let them homeward pass; The greaser rode the donkey off- Spurring and kicking old Palmer's-jack.

"Over the hill on the dusty trail The pair did fade as the sun did set ; The donkey switching his fly-brush tail, The greaser smoking his cigaret.

"Like Balaam, Palmer he did scoff, And swear and wail ; alack, alas ! Sore at his lawyer, he also felt Full sore about the-beast.

"Meanwhile George Q., who felt like-not well, Was cussing the loss of pelf- Out back of the doby-walled corral He was trying to kick himself.'

"In my professional experience I have had opportunity to compare and judge of the relative ability and standing of the Bar and Bench of the several States from seacoast to seacoast, judging them by the reported decisions of their highest tribunals and by their recognized reputation, State and National, and I do not hesitate to say to you here, my brothers-in-law that I believe Colorado ranks as an equal with any other State, and is excelled b, none other in the Nation. Our brightest members have shed luster on the pages of judicial history, and we have ample reason to 'point with pride,' and no ground to 'view with alarm,' the char- acter of the courts and the legal forum of our beloved Commonwealth.

"Meanwhile, our State is yet growing. Situate here on the crest of the mid- continent, where the rains that fall and the snows that melt on the Continental Divide flow alike into the oceans of the Occident and the Orient ; and on the line between North and the South, which our prophetic William Gilpin, the first gov- ernor of Colorado-and, as a geographer, the American Humboldt-designated as `the zonal line of migration from East to West around the earth-a migration which started four thousand years ago from the Pyramids,'-this State, so situate, and now in its fiftieth year of evolution, is pregnant with the gestation of new growth in manhood, in intellectual and moral attainment, material resource and development, presaging the birth of years and years of prosperity and progress- so long as the sun shines, the rivers run, the granite hills endure and our white- robed mountains lift their shining heads to the eternal heavens above us."

REMINISCENCES

At the exercises attending the dedication of the federal district court room in the new postoffice at Denver, February 21, 1916, a number of addresses of

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reminiscent character were delivered by prominent early members of the bar. Excerpts from these give many interesting and intimate stories of the early lawyers and judges of Colorado. A series of quotations from these addresses follows :

C. S. THOMAS

(From Letter Read)

"United States Senate, Washington, D. C., 2-17-16.

"I was present when the District Court for the new District of Colorado met for the first time. It was in a building on Larimer between 16th and 17th streets, with Judge Dundy of Nebraska, presiding. The entire Bar of the city was present and nearly all of them were at once admitted on motion. This was in the winter of 1876 and 1877, some thirty-nine years ago. Shortly afterwards Judge Hallett was appointed and the court moved to an adjoining building. It then shifted its quarters to the Symes building on Champa street, and the change was duly observed by the Bar. Afterwards and about 1890, as I recall, another removal took place; this time to the old Gettysburg panorama building, just between the present Ideal building and the Chamber of Commerce. There it had real swell headquarters with all the conveniences of adjoining offices, and there it remained until about 1894, when the new Federal Building was completed, after eight weary years of construction. We made much of this occasion and felt that the court was finally and securely housed.

"But I have lived to see still another and for me the last and best change. For the new government building is as nearly and commodiously perfect as we can hope for. The court room is stately, imposing and appropriate. The library room should, and I hope will soon, be filled with books, and Bench and Bar will find themselves settled and secure for many years. My sincere congratulations to both.

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History of Colorado; Volume I, Part 84

Author: Stone, Wilbur Fiske, 1833-1920, ed Publication date: 1918 Publisher: Chicago, S. J. Clarke Number of Pages: 954

Author: Stone, Wilbur Fiske, 1833-1920, ed
Publication date: 1918
Publisher: Chicago, S. J. Clarke
Number of Pages: 954