USA > Colorado > History of Colorado; Volume I > Part 85
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"I am rapidly approaching the scriptural limit of man's existence, and cannot therefore hope to again take an active part in the work of the noble profession to which we belong. But I rejoice that the years of my practice were cast among such men as adorned the Colorado Bar from the time I reached man's estate down to this hour, and that the men of the younger generation are proving themselves the worthy and vigorous successors of such a splendid body of lawyers. Sayre, Butler, Decker, Symes, Benedict, Markham, Wolcott, the Tellers, Dillon, Belford, Smith, Macon, Yonley, Hughes, Hallett, France, Charles Elbert, Thatcher, Gast, these and many others have gone; but these invisible spirits-'that rule us from their urns,'-they surely will be with you and breathe their benedictions upon the ceremony which marks the transition of the United States District Court from its old to its new habitation. I am, My Dear Sir,
Very respectfully your friend,
(Signed) C. S. THOMAS."
T. J. O'DONNELL
"The first session of this court and of that court which was its contemporary, as well as its predecessor, was held in the building then known as Ford's Hotel, 1626 Larimer Street, December 5, 1876.
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"The event had been looked forward to, by those who participated in it, with an interest and an enthusiasm far beyond even that which animates this occasion.
"Elmer S. Dundy, Judge for the District of Nebraska, presided, but there was no Bar. The genius of American institutions has no better illustration than the method by which the lawyers of the state were made members of the Bar of the courts of these United States. Judge Samuel H. Elbert, who had been elected to the Supreme Court of the state, upon its admission to the Union, was recognized in his official capacity, and moved the admission to the Bar of Eugene P. Jacob- son, Alfred Sayre, Hugh Butler, Westbrook S. Decker, John W. Jenkins, Mitchell Benedict and Alfred I. Blake as attorneys and counsellors at law, solicitors in chancery, and proctors in admiralty. All these are historic names in Colorado.
"Law, equity and admiralty (doubtless it was then thought the latter might draw unto itself jurisdiction over irrigation ditches) having been thus started on their course, with the nucleus of attorneys, solicitors and proctors, the admission of others rapidly followed on the motion of divers of those first sworn in.
"That was not quite forty years ago, but of the men who signed the roll that first day and thereafter during the first month of this court's existence, Owen E. Le Fevre, George Q. Richmond, William C. Kingsley, Robert E. Foote, Alfred C. Phelps, Robert S. Morrison and Clinton Reed only, still answer at roll-call. The others, that brainy, brilliant host of pioneer lawyers, who foregathered on Lari- mer street in 1876, alas, 'The winds have blown them all away.'
"Judge E. T. Wells and Ex-Senator T. M. Patterson were not admitted to this Bar until the following year.
"John M. Waldron's name was added to the roll in 1879, and our well beloved and hoary friends, James H. Blood and Gustave C. Bartels, signed up, in this order, three days apart, in July, 1880, the first, last and only time they were ever known to do the same thing or anything at different times.
"Wilbur F. Stone went early to the Supreme Bench of the state, and so the name of the much esteemed historian of the pioneer Bench and Bar does not appear on this roll until many years later. .
"Edward O. Wolcott, 'of Georgetown,' was admitted here on the 5th day of the court's session. Senator Charles S. Thomas was admitted December 14th, and Frederick W. Pitkin, afterwards Governor for two terms, on the same day. Henry M. Teller, George W. Miller and Vincent D. Markham were enrolled in 1877, as was General Bela M. Hughes, Nestor of the Bar, and Chevalier Bayard of Colo- rado. These were honored in their day and generation and were the glory of the times and these are of them that have left a name behind them.
"Butler, walking statelier than Rome's Tribune, master of logic and rhetoric, and able to contend, with all the canniness of his Scotch, or the fervor of his Irish ancestors, as the cause demanded; it was said of Butler that he never put forth his best efforts until he came to the petition for rehearing, and that if he represented the defendant the case was never tried until both parties were dead, and generally not then. Wolcott, like Coriolanus, hating the many-headed mul- titude, but able to sway with his voice, juries and assemblies; Henry M. Teller, cold as the icicle on Diana's temple, but bold as a lion when aroused to righteous wrath; Miller, uncouth and not too learned, but with a fierce and savage imagery and posture and voice, an inheritance of his Indian blood, which drove all before him.
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"There is a story of Judge Miller-authentic-which I must tell. Judge Miller was defending a man accused of manslaughter, in the Territorial court at Colorado Springs. Judge Hallett was presiding. That the defendant killed the deceased was admitted ; the plea was self-defense, and it was charged that the deceased had been threatening the life of defendant with a loaded rifle. Miller seized the rifle, which was an exhibit in the case, and bringing it to bear upon the jury, charged, with a ferocious Indian yell. The jurors, and everyone else in the court room, except the judge, instantly became men of one mind and fled from the room. Judge Hallett remained upon the bench, as imperturbable as he appears in that portrait upon the wall. The sheriff finally peeked in. Judge Hallett, calling him to the bench, said: 'Mr. Sheriff, will you see if you can induce the jury to return to the court room and resume the consideration of the case, and, Sir, you may promise them the court's protection.'
"There was Markham, Virginia cavalier, whose learning and wit were seldom voiced standing, but who was a most formidable antagonist with pen and paper ; Willard Teller, equally able and, locally, as well known as his more famous brother ; Judge Steck, that quaint character, pioneer of California, as well as Colorado, whose character was illustrated by an incident in my own experience. He resigned from the county bench in 1883, or thereabouts, and took offices in the old Tabor Block, now Nassau, at Sixteenth and Larimer streets, where I then had an office. Coming behind him as he was stomping along on the tile floor one day, as was his custom, talking vigorously to a man whom he had by the arm, he said, 'The Supreme Court will reverse it; the Supreme Court will re- verse it; it is bound to reverse it.' I stepped up to him and said, 'What is that, Judge Steck ; one of your decisions?' 'Yes, and a most damnably iniquitous de- cision it was, too,' he answered. I wish that judges could more often recognize their limitations before they leave the bench. It seems so easy afterward.
"No reference to the Bar of that time can omit mention of Major Edward L. Smith, urbane, soft spoken and courteous, but who would spring with the quick- ness of a leopard at an antagonist off his guard; Tom Macon, primal man from Missouri, who never willingly ate any diet more civilized than corn pone and bacon, who could beat the devil quoting scripture, who described a contemporary orator as placing all his emphasis on his prepositions, and who could grill a wit- .ness until the lid of Satan's cook-stove would seem cool to the touch.
"Judge John F. Dillon sat with Judge Dundy the second and third days of the term, and many times afterward, and Judge McCrary and Judge Brewer fre- quently presided during their respective terms as Circuit Judge.
"The late Justice Samuel F. Miller of the Supreme Court frequently came here, in the old days, when the judges of that august tribunal were generally ap- pointed with some reference to the circuits, and made periodical visits to the one to which assigned.
"The Union Pacific Railroad, under some one of its many corporate aliases, was a party in Cause No. I on the docket; No. 2 and several thereafter were bills brought by the United States to set aside alleged frauds against the govern- ment in respect to public lands. Nothing changes, in forty years, but men. The grand jury-and I think the late Dennis Sullivan, who died in October, was the last survivor of the panel-returned numerous true bills, principally against Mexicans. The court seems to have taken up their cases under the maxim,
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First in time, first in right. Manuel Vigil, having drawn the lowest number on the docket, was tried first, and acquitted by a jury of Gringoes. The others fol- lowed. A careful investigation of the facts will lead any careful man to the firm conclusion that each and every one was clearly guilty and most properly acquitted. Pioneer juries evidently applied the same principles, in the trial of Mexicans, that tenderfoot juries, in these soft days, apply upon the trial of young Piute Indians.
"The court continued to occupy the Larimer street quarters until May 6th, 1884, when it was removed to the old Symes building. I will pass that history because it has been given, with a few minor errors, by Senator Thomas' letter, mentioning merely as a fact, illustrating the celerity with which this great gov- ernment of ours can be driven-can act when it is driven to it-its capacity for quick preparedness-the site of that building was selected and its structure com- menced in 1880, and the building was ready for occupancy thirteen years later.
"There were many notable cases tried in that old Larimer street court room. The Leadville apex cases brought political and financial fortune to a number of lawyers. Judge George G. Symes came here in the '70s. He had been Terri- torial Judge in Montana. He formed a partnership with Judge Decker, and be- came immediately prominent through connection with the litigation over the Dives-Pelican mines at Georgetown. He espoused the apex side in the contro- versy over the Leadville formation, but was defeated. He purchased the corner on Sixteenth and Champa streets with his fees, built a block and went to Con- gress. Patterson and Thomas represented the defense. Both became rich, and the riches of one, at least, have continued to grow ever since. Both, at times, ran for governor, and one of them was finally elected to that office. Both ran for the Senate many times, and each of them was ultimately elected Senator. They defeated the apex for Leadville, but lost it in Aspen. The Aspen cases were tried later, and the apex side was espoused by Senator Teller, then in the very zenith of his power and influence. C. J. Hughes first attained prominence in these Aspen apex litigations through his association with Senator Teller, and laid the foundation of his fortune, and subsequent senatorship.
"On the day this court opened, Colonel Edward F. Bishop, who had been a gallant soldier of the Union in the conflict between the states, and who bore the scars of that conflict, was appointed clerk of both the Circuit and District Courts,. and his brother, Charles W., then a fat and chubby boy, occupied a desk in the little room where its meager records were to be written.
"William A. Willard succeeded Colonel Bishop when the latter resigned. On the death of Mr. Willard, Captain Francis W. Tupper, a one-legged veteran of the Civil War, was appointed, by Judge Hallett, clerk of the District Court, and Circuit Judge Caldwell appointed Captain Robert Bailey, who had been his com- panion in arms, clerk of the Circuit Court.
"Charles W. Bishop became clerk of the District Court on the death of Captain Tupper in 1900, and clerk of the Circuit Court on Captain Bailey's resig- nation in 1906. He held both places until the merger of the two courts, Decem- ber 31, 19II, and still he serves, less changing than the law itself, immutable and inscrutable, but still believing :
" 'Life is not so short but that there is always time enough for courtesy.'
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"The incumbent is the eighth marshal. His immediate predecessor, Dewey C. Bailey, served more than twice as long as the average term in this office.
"Judge Moses Hallett took his seat on this Bench January 23, 1877. How different the surroundings from those in which we are assembled! The venue of that day is laid in a poorly lighted, illy ventilated room, in a dilapidated building. The condition of the furniture is illustrated by a story which Judge Hallett told me not long before he died. It was shortly after Judge Hallett took his place upon this bench. General Samuel E. Brown came in one day and taking his seat on one of the chairs of the court room, the perforated bottoms of which were held in place with tacks, he quickly discovered that a tack had been inverted. Im- mediately arising, and addressing the court, he said: 'This court is sharp at the wrong end.'
"General Brown was first Attorney General of the territory, and the wag and wit of the Bar. Judge Markham said of him that he would rather get off a joke than get a verdict, and that if he had been paid a dollar apiece for all the suits he had appeared in, he would have been the richest man in the world.
"The unique and extraordinary character who was first judge of this district, must necessarily occupy the foreground in any picture of this court, for the period covered by this sketch. He presided here for thirty years and thus rounded out a forty-year term upon the bench in Colorado. Nature is not sufficiently fecund, in departing from formula, to lend reasonable expectation that he will be approached, much less duplicated, within the century.
"Dignified in bearing, austere in manner, unapproachable in demeanor, frigid in speech, there dwelt beneath this cold and forbidding exterior a heart in which the law of kindness was as well known as was the law of the land in the head above. When I had occasion to seek his aid, and that of others, for a pioneer lawyer who was in distress, he responded more liberally than any other man ap- proached, and in a spirit which showed that an ancient quarrel had left no bit- terness. Behind the stern demand for the respect due the judicial office and judicial proceedings there dwelt a modesty and a simplicity which few were privi- leged to know or understand.
"When with him in Washington during and just before the Cleveland inau- gural of 1885, he was turning away from the Bar of the Supreme Court, because, on that day, only members of that Bar were admitted within the rail. Another lawyer made known the position held by Judge Hallett, which he himself was too modest to mention, and he was thereupon immediately seated inside the rail. I believe that was the first time he was ever present at a session of the Supreme Court of the United States.
"The written law he knew; the precepts which are writ in a dead language upon the lintel of this building, and upon these walls, were living sentiments in his heart and guide-posts of his daily walk.
"To him this state owes a debt hard to estimate and impossible to liquidate. It owes a debt for lessons in law enforcement, for Judge Hallett taught rude and lawless men respect for the law, and for the tribunals organized to enforce it. When first appointed to the Territorial Bench, he opened court in a turbulent community, only to find that a cause about to be tried had divided the people into hostile factions and armed camps ; that primal passions were aroused, and that the flames of violence were likely to break forth at any moment. The court room Vol. 1-48
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bulged with excited men, each man a walking arsenal. Judge Hallett talked to these men in that cold, calm, dispassionate way of his, on the necessity of courts ; he pointed out that courts could not perform their functions unless the people would bow to them and support their judgments ; he asked each man pres- ent to give up his arms to the sheriff and then adjourned court for half an hour. When the judge returned to the bench he saw piled in front of him an assortment of weapons which was not duplicated until the Austrian troops called upon the Montenegrin villagers to turn over their implements of war.
"The same characteristics, illustrated by the incident last recited, were at the bottom of the fact that he so conducted his court that the dignity and order of its proceedings attracted national and international notice. In doing this, he was, doubtless, at times, unnecessarily harsh ; he made many enemies, and was much misunderstood, but generally speaking, he was able to accomplish the results sought by that amazingly scathing sarcasm, of which he possessed such supreme command. The result was, enough rare incident and capital anecdote hangs around this court to make a volume more prized than any which has yet found a place on lawyers' tables. I wish that my friends, Judge Wells and Judge Stone, might collaborate in the preparation of such a book, before all the good stories are distorted or emasculated, as I find is being done when I hear them told by the generation which knew not Moses and the Prophets.
"With masterly genius Judge Hallett conceived the needs imposed by the new conditions found here, and with a courage, which mounted to occasion, he up- rooted ancient doctrines of the law, with the declaration that they must yield to the situation which confronted the new civilization, thus disregarding one of the maxims inscribed in this room-witness his sweeping decision abrogating the law of riparian rights in the arid west (Yunker v. Nichols, I Colo. 551 ; see, also, K. P. Ry. Co. v. Lundin, 3 Colo. 94)."
W. H. GABBERT
"When the Territory of Colorado was created, able jurists were appointed to our Supreme Court Bench. They were confronted with new legal problems and required to develop and apply principles of law which had lain dormant because conditions in other jurisdictions had not called for their application. How well these pioneer jurists performed their tasks is evidenced by the fact that their de- cisions have not only been uniformly and consistently followed by the Supreme Court of this state, but are recognized as authority in every other jurisdiction throughout the Rocky Mountain region.
"The Supreme Court of the Territory was organized in 1861. Five years later, or nearly fifty years ago, Judge Hallett was appointed Chief Justice of that tribunal, and continuously occupied that position until the territory was admitted as a state. During that period the law of irrigation and mining was in its forma- tive stage, and the opinions he rendered on these subjects have been of incalcu- lable value. Speaking through him, the Supreme Court of the Territory an- nounced, in effect, in advance of any other court of last resort, that the common- law doctrine of riparian rights was not applicable in Colorado. On this sub- ject, though not directly connected with riparian rights, in one of his opinions, delivered forty-four years ago, he said: 'In a dry and thirsty land it is necessary
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to divert the waters of streams from their natural channels in order to obtain the fruits of the soil, and this necessity is so universal and imperious that it claims recognition of the law.' In the same opinion he also said, 'When the lands of this Territory were derived from the General Government, they were subject to the law of nature, which holds them barren until awakened to fertility by nourishing streams of water, and the purchasers could have no benefit from the grant without the right to irrigate them.'
"These utterances are of great historical interest. They form the basis upon which the right to divert water for beneficial purposes is founded, and no doubt prompted the adoption of our constitutional provision which declares that the right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied.
"Early in the history of Colorado, Congress passed a law to fix and define mining rights. The territorial bench was called upon to construe and apply this law. This required the consideration of new questions with respect to the law of real property, and our early reports furnish precedents on the subject of mining rights which have been followed and approved not only by the courts of last resort in states embracing the mountain region of the West, but by the high- est tribunal in the land. Foremost in interpreting the Act of Congress relating to. mining claims appears the name of Judge Hallett as Chief Justice of the territory. and as Federal Judge of the state. In the text books and the reports his decisions on the subject of mining law are more frequently referred to and quoted than those of any other jurist."
JOHN F. PHILIPS
"I had been on the Federal Bench but a little over a year when I received a note from Circuit Judge Brewer, who had just been promoted to the Supreme Bench of the United States, stating that there were some cases which had been especially assigned for him to hear at Denver, but as he was soon to take his place on the Supreme Bench, he wished very much that I would come out here and try them; that it would probably not take me over three or four days. He had never tried a mining case. With some misgivings, but in a spirit of service- ableness, I came. I reached here about the first of December, 1889. The first case, on the especially arranged docket for me to hear, was that of Cheesman and others against Shreeve and others. It was an action of ejectment for the recovery of a mine. I think up in Eagle Pass. Charley Hughes represented the plaintiff, B. F. Montgomery and C. C. Parsons the defendants. The mining law to me was a terra incognita; and this one presented some questions that were new even to the experienced mining lawyers engaged in the case. But I recalled what I heard an old judge of the Supreme Court of Missouri once say : 'The trial judge should never give himself away to the lawyers; if he don't know all the law of the case, he should keep the fact to himself.' So, at the very outset, I bluffed Montgomery, when he set up a sort of kindergarten in court to tell me all about the peculiarities of an ejectment suit in a mining case, by reminding him of the motto of the pick-axe on the dial, 'I will find a way, or make one.'
"That trial lasted until Christmas, and in reading over the other day that charge of mine to the jury, reported in the 40th Federal, I was somewhat amazed
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at my audacious display of knowledge of geology, mineralogy, apexes, dips, con- tinuity of veins, side- and end-lines. One would think that I was sort of judicial vug, endowed with an insight into all the hidden mysteries of these mountains. But why shouldn't I have known and learned a great deal about all these occult matters? I had not only the assistance of most learned and skilled lawyers, but access to the well assorted library of that able jurist Judge Dixon, of Wisconsin, who had recently located in Denver; where at nights, while Montgomery was at- tending theatres with his young and handsome wife, and Charley Hughes was lolling in his private library at home reading the deliverances of his model orator and lawyer, Marcus Tullius Cicero, I was reading every pertinent decision in the territorial and state courts of Colorado, of California, and of the Supreme Court of the United States.
"Furthermore, as the quotation from my opinion just read by the chairman, McAllister, states, I had before me for over two weeks the most wonderful dis- play of swearing by expert witnesses I ever heard or dreamed of. They were not only up in geology, mineralogy, surveying, but in photography and assaying. They swore at the rate of fifty dollars per diem, and to the very utmost of their ability and all that was supplemented by the arts of photography and assaying. The photographers were skilled experts. They could take the inside of a mine so as to make the roof the foot and reverse the sides just to suit the side that hired them ; while the assayist possessed that wonderful alchemy of finding gold or silver when gold or silver was required, or no gold or no silver when they were not required; while the other side could find nothing but dirt or rotten rocks. One could follow the continuity of a vein like a ray of sunbeam extending from sky to earth, while the other would find lapses of a hundred or two hundred yards apart.
"The only vein of humor struck in that case was when an Irishman, fresh from Cork, was introduced as a witness. He had been watching the performances of these expert witnesses, with the pointer stuck up against the photograph of the mine displayed on the wall; and as soon as he was sworn, without being asked a question, he seized what he called 'that pinter' and stuck it up against that picture, and turned to the jury and said, 'Gintlemin of the jury, I intered dis yer mine right thar, and de furder I wint in, de furder I got.' By this time pa- tience had ceased to be a virtue, and I said to the witness, 'Take your seat,' and, turning to the lawyers, I said, 'Gentlemen, this witness has stated about the most self-evident proposition I have heard since I came to Colorado, and that is, the further a man goes the further he gets. I think I will now close this debating society among the witnesses, and you can proceed to introduce evidence, if you have any.' The jury returned a verdict for the defendants; but, under your ·Colorado statute, the plaintiff on certain conditions was entitled to a new trial. Judge Thomas, of the Federal Court in North Dakota, was sent down here to run the second trial. He was in delicate health, and the principal object,' I think, in sending him here was in the hope that this electrical atmosphere of yours would breathe into his lungs new life. My recollection is that he spent the most of one winter in trying the case; and at the end of it he was so exhausted that he only had strength enough left to reach home in time to die.
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