History of Colorado; Volume I, Part 86

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

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"But the case did not end there. It seemed to have as many lives as the pro- verbial cat. In its peregrinations it went to the Court of Appeals, and I think

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to the Supreme Court, and only got out of court a few years ago, when all the lawyers concerned in it, and about all the litigants, had died.

"Another incident, if somewhat disagreeable, connected with that first term of court I held here: among the cases assigned on the special docket made out by Judge Hallett for me to hear, was that of the United States against Harman. Harman was a lawyer from Illinois, of some celebrity. He was indicted for making false entries, I believe, of some school lands out here, which were de- signed to create a school fund for the benefit of Colorado. He was convicted before Judge Hallett. Tom Patterson, his lawyer, filed a motion in arrest and for new trial. Being overruled, an appeal was taken, which, under the statute then, went to the Circuit Court. I heard the argument in that case, of evenings, while I was trying the mining case, in order to see that I earned my pay while I was out here. I took the case under advisement, and after returning to Kan- sas City, wrote it up, reversing the judgment of conviction, on the ground that, until all the conditions were complied with, of such an entry, and at the end of five years when the party might obtain a patent, it was not possible for the gov- ernment to be defrauded out of its property by a mere preliminary entry, when he might never get a patent. And so the authorities held. I sent the opinion and the papers out to Judge Hallett, with the request that he file the opinion, and, to save me the trouble and the government the expense of my coming out here, to have made the formal entry, vacating the judgment. When he read the opinion, he refused to make the order, on the ground that as I was only a District Judge I had no right to reverse him. It has always remained to me an insoluble mystery how I had jurisdiction to hear the case if I had no power to decide it; and I do not know whether his acute mind would have ever discovered the in- firmity in my authority if I had affirmed his ruling. Judge Caldwell, then the Circuit Judge, had to come out here, and, holding that, as I was assigned to hold the Circuit Court in Colorado, I was invested with all the jurisdictional powers of a Circuit Judge, ordered my finding to be entered of record. But Judge Hal- lett and myself ever after remained good friends ; and I here today pay to his memory the tribute that he was an able jurist and an honest man. Like many men full of affirmation, there were in his mental and moral makeup some sharp angles ; but the composite man was strong and majestic.

"The last case I tried in Denver is also historic. Just a short time before I retired from the bench, in 1910, Judge Lewis, another Missouri product (who, I am glad to say, is reflecting honor both upon the state of his nativity and that of his adoption), with the honeyed words of Minerva and the baits of the Siren, inveigled me into coming out here to try an old chancery case, which he said he didn't care to sit in. When I arrived I picked up the papers and looked at them, when I discovered his true reason ; there were about 3,000 pages of printed testi- mony and about 400 exhibits. It grew out of the Amethyst mine up at Battle Mountain, I believe, near Creede. And, curiously enough, Moffat, who was a party to the Cheesman case, was defendant in this; Charley Hughes, who was counsel in the Cheesman case, was Moffat's counsel in this. He having gone to the Senate of the United States, Gerald, 'a worthy scion of a noble sire,' made the argument in his place. One of the witnesses in the case was among the ex- pert witnesses in the Cheesman case. So I ended my judicial career in Colorado by going into one mine and coming out of another. It took me ten days to read

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and digest that mass of testimony. I wrote the case up elaborately, deciding in favor of Moffat ; and though he had builded the railroad from Denver to Steam- boat Springs-a grander achievement in civil engineering than that of the Simp- lon Pass of Napoleon Bonaparte-he received no reward; but I was told that he had printed and circulated in pamphlet form my opinion, and died with the io triumphe smile on his face, because, as he said, it was the only case decided in his favor in this jurisdiction for many years.

"Many terms I sat upon the Court of Appeals at this city. Some of the best opinions, at least to my satisfaction, I ever wrote were in cases that came from Colorado. This, because the quality of the questions involved was calculated to strike up whatever of fire slumbered in me; and because the cases were well briefed and ably argued by splendid lawyers. If there be any diamond in our mental composition, it will shine out by attrition with superior minds. The flush times of litigation in Colorado furnished a striking illustration of the fact that great causes make great lawyers, just as the prize of an empire is apt to develop a great general.

"Colorado was then engaged in subjecting the vast area of arid lands to the uses of husbandry by the process of irrigation. She was tunnelling the moun- tains, penetrating their depths, by applied mechanics, to make them give up their hidden treasures of gold, silver and coal; and constructing railroads over and along precipitous heights where the head today grows dizzy as you ride over them. All this was a fruitful source of litigation, calling into requisition the highest intellectual gifts, in adapting old principles in science, law and equity to meet the demands of new conditions. So that the lawyer, who counseled, ad- vised and managed such stupendous affairs in and out of court, was stimulated by the prizes before him to the highest exertion of energy, research, and endeavor. The questions he had to meet involved a wide range of learning and knowledge, from the geological conformation of these mountains, to the alembic and the crucible ; from assaying to geometry ; demanding the application of old princi- ples in science, common and statutory law, and the reach and compass of equity jurisprudence to meet new demands. All this tended to make great lawyers, just as the practitioner who indulges in petty litigation, in the training of witnesses. rather than study of the law, is apt to dwarf to the dimensions of the shyster- becomes a scavenger bird instead of an eagle."

BY E. T. WELLS

The following reminiscences are taken from an address delivered before the Denver Bar Association by E. T. Wells on May 24, 1917:

"When our coach reached Denver in the evening of November 5th we drove to the Planters House, a rambling framed affair of two stories, which stood on the opposite side of Blake Street from the present American House. The driver called 'Coach' in a loud voice, and in an instant we were surrounded by a crowd of perhaps fifty, perhaps a hundred, all anxious to see who had come, and hear the news from the states. I knew someone in the throng, was introduced to every one else, and I think every one of my new acquaintances invited me to drink.

"On the next day one of my new acquaintances called and escorted me about

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the town, introducing me to merchants, bankers, lawyers, and loafers. Every- where I was greeted like a long-lost brother. I suppose every newcomer met a similar welcome.

"My friend Chamberlain, upon whom the liberal people of Denver at once conferred the title of General, shared with me in all these courteous attentions.

"On the second or third day after our arrival we were invited to a party at the residence of Hon. Cameron Hunt. The ladies and gentlemen whom we met at that assembly were, I thought, as refined, well bred and intelligent as would be seen in any like assembly in any city of the states.

"I regret to mention that Mrs. Charles B. Kountze and Col. D. C. Dodge (now deceased) are, so far as I can recall, the only survivors of the interesting ladies and gentlemen whom I met on that occasion.

"My first residence was in Gilpin County. I had been appointed attorney of the Blackhawk Gold Mining Company, one of the principal institutions of that mining center, and for convenience in attending to their affairs, I located in that village. My office was with the city clerk, who was also a justice of the peace, notary public and police magistrate. At the rear of this office was a bed- room, which the then sole occupant, the city marshal, was kind enough to share with me. Separated from this by a partition of boards was the city calaboose. So far as I remember, that apartment never had a tenant.

"The bar of Colorado was then feeble in number, but at least equal in ability to that of most similar communities in the East.

"One might count upon the fingers of his two hands all those engaged in active practice in Gilpin and Clear Creek; the number in Denver was, I think, still less ; at Boulder were two lawyers ; the Hon. Wilbur F. Stone and two others were at Pueblo, and the Hon. Thomas Macon at Canon City. I believe that Judge Stone and myself are the only survivors of the bar of that time.

"Among the bar of Gilpin County was Ellsworth Wakeley. He was some- what advanced in life, had been a judge in Michigan, and was a man of con- siderable learning, though of rather quaint and peculiar notions. He thought no book published since the reign of Charles II ought to be accepted as authority. Perhaps he limited this condemnation to the reports of the mother country, and would admit the authoritative character of Marshall, Kent, Story and other native luminaries. On what grounds he set this limit to the authority of the English courts I think I never heard.

"His great delight was to argue a demurrer to a bill in chawncery, as he called it, or exceptions to an answer. On these occasions he would accumulate books without end, arranging them in the precise order in which he proposed to refer to them, and there wasn't a man living who dared to touch one of these books after he had competed his arrangement.

"He told many stories, and had a habit of indulging in endless details, enter- ing into the avoirdupois and stature of every character. He told me that the first time he ever attended a court was in Connecticut, when he was there as a school boy. There were three judges, he said, and 'What do you think? One of those judges got up and opened the court with prayer! I have often thought,' he continued, 'that Sam Lorah was about the size of that judge, but Lorah is a heavier man. Sometimes I think Horace Atkins is about his size, but Horace is a taller man. I have never seen a man exactly the size of that judge but once.

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Seven years ago I was going over to Empire, and met on the road a man who was exactly the size of that judge. I had never seen him before, and never have seen him since, and I don't know who the h-1 he was, but I thought at the time he was exactly the size of that judge.'

"With all his learning Judge Wakeley was never able to acquire any con- siderable clientage. He finally died at Silver Cliff, and I have been told was buried at the expense of his brother members of the bar.

"Among other members of the bar in the second district in territorial times were the Messrs. Teller, and the firm of Royle & Butler, composed of Jonathan C. Royle and the late Hugh Butler. The elder Teller was an amiable man of very engaging manners in private life, but in a trial a most persistent and un- compromising adversary. I thought him one of the most happily equipped men for the profession that I had ever known, and still so regard him. If he had been content to remain in practice he must have made very large accumulations.

"Mr. Willard Teller was a man of austere manners, but exceedingly fair and liberal in practice, always ready to grant any favor to which an adversary was fairly entitled, even when conscious that by a denial he might gain an advantage.

"His reputation was somewhat overshadowed by that of his brother, but his ability would have been recognized at any bar in the land.

"My Royle was a man of learning, integrity and industry. Few men could present a question of law with more lucidity ; but the technicalities of the com- mon law pleading were the bane of his life, and I think it was his distaste for them that finally induced him to remove to Salt Lake, where he resided and followed the law for many years, I believe, with great success.

"Mr. Butler was of Scottish birth or extraction, and his intellect was of the Scottish type. He delighted in subtleties, and while effective in dealing with any question of law, it seemed to me that he preferred the wrong side to the right. His great joy seemed to be to make something out of nothing; to give plausible reasons for a proposition manifestly unsound, and which he knew to be unsound. The very difficulties of the occasion seemed to arouse him.

"Charles C. Post, later Attorney General of the state, was one of the most amiable and worthy of men. He was an excellent lawyer, but more attentive to the interests of his clients than to his own. Though, I believe, the first attorney to have settled in Gilpin County, he accumulated little, and died in very modest circumstances.

"The leading members of the profession in Denver were Amos Steck, George Crocker, John Q. Charles, Samuel H. Elbert, Bright Smith and his brother, Ed- mond L. Smith, Vincent D. Markham and George W. Miller. They were all men of learning and exceptional talent, though in different lines of effort.

"I was afterwards associated with the younger Smith and with Thomas Macon, and cannot refrain from expressing here my great regard and admiration for them.

"Each of them was possessed of that charity that thinketh no evil. They were gentlemen in the best sense of the word. Just, sincere, truthful, courteous.

"Neither of them was a profound lawyer in the learning of the books, but each of them possessed that native sense of right. of what the law ought to be, which is perhaps even a surer guide than authority.

"The courts sometimes wander from the true path, but the right in invariable.

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"Major Smith was equally equipped in all departments of practice. His argument of a question of law was like a passage from one of the opinions of Benjamin R. Curtis or Jeremiah S. Black-so clear and coherent in thought, so felicitous in expression. His voice, to use the expression of another, was like a band of music. Before a jury he was very effective, and his management of a witness was a model, always fair, gentle and considerate with the truthful, no prevaricator could evade him.

"Macon was a man of the noblest mold. His youth was spent in poverty, and his acquaintance with the law was limited. He had little confidence in his own opinion, but in the presentation of the facts of the case he had very few superiors.

"The first case in which I had the fortune to hear him was the People v. Briggs and McClish, indictment for the murder of Harrington. The trial lasted many days. Macon took no notes of the testimony, but in his argument, which I think occupied something like five hours, he missed no single point tending to dissipate the case made by the state, or establish the innocence of his clients.

"Their acquittal brought on what was known as the Gas Creek War, in which, as I remember, fourteen of the citizens of Lake County, among others the County Judge, lost their lives.

"In the autumn of 1865 the bench of the Supreme Court of Colorado was composed of Stephen S. Harding, William H. Gale, and Charles C. Holly. Judge Harding had left the Territory under something of a cloud, I believe, and never returned. But his sign was still here. He had occupied a small frame house which stood upon the corner now occupied by the Symes Block. Upon the door was a sign more than two feet square, I should think, painted in black upon a ground of tin, 'Stephen S. Harding, Chief Justice'-as if he were advertising for business. It seemed to say, in the language of the crier: 'Draw near and ye shall be heard !'

"Judge Gale had arrived here a few days in advance of my coming. I called to pay my respects at his room in the Tremont House, then perhaps the swell establishment of the city.

"I observed with admiration that each foot of his bed rested in a pan of water, and a sheet stretched above it, prevented the approach of the prowlers of the night from that direction.

"Judge Gale was what might be called an exquisite. He dressed with great care, parted his hair in the middle, wore an enormous seal ring, and spoke with a lisp. The rules of the common law pleading, or even its commonest terms, were an enigma to him. I heard the late General Sam Brown argue in the Su- preme Court, after Judge Gale had left the country, an appeal from one of his judgments. 'This is the case,' he told the court, 'This is the case in which, when I argued to the late Judge of the First Judicial District, that the plea of non cepit in replevin did put in issue the property in the goods, asked me with won- derful gravity what I meant by the plea of 'non thepit-non thepit, your Honors.'

"It was Judge Gale's habit, it was said, to take out with him at the evening of every motion day, the pleadings and papers in every case in which a demur- rer or motion had been argued. In the morning he returned them carefully folded and arranged, and upon the opening of court, the demurrer in the case first in the pile was sustained, the second overruled, the third sustained, and so

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to the end-thus dispensing equal justice to all. General Sam Brown told me that on one occasion, observing that the first paper in the pile was a declaration which he had prepared, he dexterously shifted it to the second place, and by this sleight of hand averted the impending defeat. His adversary had observed his maneuver, and accused him of 'shuffling the deck after the cut.'

"The judge assigned to the second district, Gilpin and the adjoining counties, was Charles F. Holly. He had not, I thought, a very profound acquaintance with the books, but seemed conscious of his deficiencies, listened to counsel with attention, was possessed of patience enough to stock up two or three judges, and was, withal, as I read him, a conscientious man, ready and anxious to do justice without fear, favor or affection. Undoubtedly, if he had continued he would have proved a useful and acceptable judge; but he fell from grace, was indicted by his own grand jury, and finally removed from office. He went later to New Mexico, made and lost a fortune there, and died in great poverty at Pueblo.

"Judge Gorsline, who succeeded Judge Holly in the Second District, was an able lawyer and an independent and conscientious judge. But he was not always in good health, was something of a hypochondriac, and these infirmities, actual and imaginary, much impaired his usefulness on the district bench-which, during the Territorial regime, was the most important function of the judges of the Supreme Court. His opinions are found in the first volume of our reports, and may well be said to be sound in law and felicitous in expression.

"Judge Belford, who succeeded Judge Gorsline, was from Indiana, and like some of his predecessors, could never assimilate the technicalities of common law pleading. It was at his instance, or at any rate largely through his influence, that we were finally condemned to the so-called Reformed System of the Code. He was a most conscientious and just-minded judge, and his opinions as they appear in the reports, are examples of happy expression. His conduct of the district courts was not entirely commendable. He had little regard for the decorum of the occasion, and the office, and sometimes incurred unjust censure for his failure to remember that the judge must not only be fair and indifferent, but must appear so. He was devoted to his friends, and was sometimes indiscreet in manifesting his regard for, and apparently courting the society of, those en- gaged in important controversies before him. But, generally speaking, he was so esteemed and respected that these instances were excused, and set down to a frailty leaning to virtue's side.

"Christian S. Eyester, who succeeded Judge Gale, was from Pennsylvania. A most worthy and kindly man. No man had more personal friends, or de- served more, but as a judge I believe he was thought to be of too gentle and · kindly a nature for the place.

"So far as I ever heard, he never in a single instance exercised the just author- ity of the place to compel the prompt attendance of any juror or witness, and from this amiable infirmity great and inexcusable delays ensued.

"The Honorable Moses Hallett of blessed memory was appointed Chief Jus- tice to succeed Judge Harding. His long service on the bench of the district and circuit courts of the . United States has made him almost as well known to the present generation as to those of the past.

"His district was the Third, but he often held the district court in the Second District, at the request of Judge Gorsline, and for some four years I had the

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pleasure to be frequently before him, and to observe his demeanor in the conduct of his office. He was, in those years, the model of a judge-learned, just, patient, dignified, and industrious. I have, more than once, when some novel or difficult question was presented in a pending trial, seen him spend the noon hour in some lawyer's office, searching for light in the books of authority.

"During my service with him in the Supreme Court of the Territory, I noticed that while there were many appeals from the First and Second Districts, an appeal from the Third District was of the rarest occurrence-so absolute was the confidence of the bar and suitors of that district in his justice, and the legal soundness of his judgment.

"His word was, in the minds of those people, the end of the matter.

"When I think of the days of the past, of the feeble and poverty-stricken community which I found here, the wilderness which they occupied and which was all about them, and the asperities of nature with which they contended, and compare these things with those of the present, I am proud to reflect that I have spent more than half a century in a community exhibiting so many of the virile virtues.

"Our profession has contributed little, directly, to the material prosperity of the present, but we may take credit and rejoice that our membership has played the principal part in framing and administering the laws, without which industry, and even society itself, is impossible. A very large part of the frame- work of our laws as they stand now goes back to 1861 and 1862, and is largely the work of Moses Hallett and George Crocker.

"Of later statutes, perhaps the most important-that regulating the adjudi- cation of priorities to the use of water-was largely the work, perhaps entirely, of the late James M. Freeman of Greeley.

"And the Constitution under which the state has grown and prospered, was principally the work of Stone, Thatcher, Bromwell, Beck, Quillian, White and Pease."

COLORADO BAR ASSOCIATION

The Colorado Bar Association was organized in the year 1897 and incorpo- rated January 8, 1898. The call for organization, issued in 1897, stated: "The undersigned, members of the Bar of Colorado, believing that the organized action and influence of our profession, properly exerted, would lead to the cre- ation of more intimate relations between its members than now exist, and would, at the same time, sustain the profession in its proper position in the community and thereby enable it, in many ways, to promote the interests of the public, do hereby agree to unite in forming a state association for such purposes.

"And we do hereby appoint Hugh Butler, Edward L. Johnson and Lucius W. Hoyt a committee to call a meeting of the subscribers at such time and place as may be designated by said committee, at which meeting measures will be taken for the organization of the proposed association."

The "undersigned" lawyers mentioned above were: Hugh Butler, A. E. Pat- tison, J. C. Helm, A. J. Rising, J. F. Vaile, Westbrook S. Decker, Caldwell Yea- man, A. C. Phelps, Sylvester G. Williams, B. J. Pitkin, Edward L. Johnson, Oscar Reuter, W. C. Kingsley, Henry T. Rogers, Lewis B. France, William A.

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Moore, Orland S. Isbell, Henry V. Johnson, George C. Manly, John H. Denison, John L. Jerome, John D. Fleming, G. C. Bartels, Charles J. Hughes, Jr., Tyson S. Dines, A. J. Fowler, Earl M. Cranston, Thomas H. Hood, Platt Rogers, E. T. Wells, Charles E. Gast, S. A. Giffin, James H. Blood, Henry C. Charpiot, Henry W. Hobson, Ralph Talbot, William P. Hillhouse, Morton S. Bailey, Charles Cavendar, Samuel P. Dale, A. H. DeFrance, Thomas H. Devine, Henry A. Dubbs, John A. Ewing, W. H. Gabbert, D. V. Burns, Charles H. Toll, Lucius W. Hoyt, R. S. Morrison, O. F. A. Greene, A. T. Gunnell, J. C. Gunter, G. K. Hartenstein, Harry N. Haynes, Edward C. Mason, Joseph H. Maupin, William I .. Murfree, Jesse G. Northcutt, 'John T. Shumate, Ed T. Taylor, C. A. Wilkin, Robert G. Withers and R. H. Whitely.

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History of Colorado; Volume I, Part 86

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