USA > Iowa > Wapello County > History of Wapello County, Iowa, Volume I > Part 21
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I saw the major long after when he escaped and came nearly starved into Little Rock. He was in butternut disguise. There was little left of him to know him but by his well known and peculiar voice. When I shook hands with him, I said :
"Major, it is the hand of Esau, but the voice of Jacob."
He fell from grace after the war and became a newspaper man, but he got his start in the honorable legal profession, and was both successful and active.
Sam W. Summers and A. A. Stuart both took part in the Civil war, Summers as a colonel and Stuart as a captain.
Judge Morris J. Williams was one of the strong men of the Ottumwa bar, and is best known for his high standing as one of the district judges of the state.
J. W. Dixon was a fine lawyer, and as a member of the Iowa Legislature, had a famous contest for the speakership with John H. Gear, who was afterwards governor and United States senator.
John D. Devine and John A. Johnson were men whom I did not meet, but held prominent places in the traditions of the Wapello bar.
Homer D. Ives, of Eddyville, was the only early lawyer in that city. He was a good lawyer but was humorously referred to as the "Ajax of the Eddyville bar."
At a later period Eugene Fawcett (afterwards a California judge), J. Kelly Johnson, afterwards district judge, and William McNett, hailed from the good old town of Eddyville. And, by the way, Eddyville, once the live- liest little city in the West, is coming back to her own.
R. W. Boyd was the successor in practice to Ives and was a man of sterling integrity and sound judgment, and for many years was the wise counselor to the people of that town.
Judge Thomas Bigham and A. W. Gaston were two of the quiet, steady workers among the early Ottumwa bar.
Cyrus Franklin of Agency was the local adviser in the pioneer town.
E. H. Stiles was one of the brightest and strongest of the Ottumwa bar. He published the Iowa law reports from volume twenty-two to thirty-seven. He left Ottumwa for the larger field of Kansas City but never forgot his attachment to the old town. He served long in his new home as master in chancery.
Col. Dan Anderson, of Albia, and the writer, defended Pleasant Ander- son in 1883, on the charge of murdering Chris McAllister, of Blakesburg. The case was transferred on a change of venue to Oskaloosa for trial. Stiles and Cory appeared for the state, with Donnelly district attorney. Stiles made the effort of his life and was deeply impressed with the guilt of the defendant. The jury found the defendant not guilty, but Wapello County soon after had a demonstration of the power of "recall of judicial decisions."
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A new trial was had in a schoolhouse and the verdict of acquittal over- ruled and a judgment of conviction carried out by masked men. The unfortunate defendant was promptly executed by hanging upon a conven- ient tree, and no recall of the last decision was possible. The recall of judicial decisions is not entirely new. It was applied as early as 1883 in Wapello County. I only recall the circumstances as a part of our judicial history. Judge E. L. Burton was unable, after repeated and earnest instruc- tions, to have a grand jury find indictments against the schoolhouse jury and court.
Judge H. B. Hendershott was one of the greatest of Ottumwa's law- yers, and Judge E. L. Burton and Hendershott were long associated in active practice.
Lewis Cass Hendershott is the son of Judge Hendershott and indi- cates by his given name the old-time politics of his worthy ancestor, and I believe is the oldest of the lawyers born on the hills of Ottumwa.
W. H. C. Jaques (commonly known by his more modest Civil war title of Captain Jaques) also served in the Civil war, and remains today active and militant in his profession as of yore.
S. E. Adler is one of the oldest of the Ottumwa lawyers.
D. H. Emery transferred his business from Poweshiek County to Wapello County many years ago, and maintains his old-time vigor.
William McNett, who is one of Iowa's greatest lawyers, was very close upon the border line of the old bar. Perhaps he is too young to be classed with the early bar, but he trod so closely upon their heels that we think of him when we talk of them.
W. S. Coen, who transferred his practice from Albia to Ottumwa and died there, was also a soldier in the Civil war, and was one of Ottumwa's good lawyers.
Ottumwa has a brilliant army of young lawyers who will keep up the prestige of their forbears, but of them I am not asked to speak. But I will say that they are speaking very well for themselves.
PROBATE COURT
The first person to preside over this court was Paul C. Jeffries, who was elected April 1, 1844, and remained in office until 1846. The first case that came before him was the probating of the will of Thomas Crawford, deceased, in September, 1844. William Crawford was administrator of the estate. Isaac Mckeon, Paris Caldwell and Sylvester Warner were appraisers, and their schedule of property of the deceased consisted of a varied group of articles, which were inventoried at from 371/2 cents to $10 each. The cheapest article, a sieve, was valued at the smaller figure, and a third of three different pieces of corn, one at William Crawford's, one at Samuel Caldwell's, and the other at Paris Caldwell's, each was
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appraised at $10. Dr. Charles C. Warden's claim against the estate for medical services was $3; Dr. J. Koontz, $16.50.
The administrator's bill was an amusing one. It consisted of a long column of debits against the estate for whisky and tobacco absorbed by the aforesaid officer of the court, and totaled in amount, $9.5912. The estate was settled by the payment of $7.50, balance due from the adminis- trator.
The first guardian of minors appointed by the court was Joseph McIn- tire, guardian for Daniel, James and John Murphy, May 10, 1845. The first will filed was that of William B. Woody, dated October II, 1846, and placed on record by the widow, Frances Wocdy, executrix, December 7, 1846.
The first marriage license was issued to Andrew Crawford and Mary Ann Montgomery, March 15, 1844. The young lady in the case was a minor and under guardianship of Peter Walker. The young couple how- ever, were fortified by the following note, directed to the clerk of the court :
"To Henry B. Hendershott, Clerk, etc .:
"You will please let Andrew Crawford have marriage license to be married to Miss Mary Ann Montgomery, and this shall be your authority for the same, the parties being under age.
"PETER WALKER, "Guardian for Mary Ann Montgomery.
His THOMAS X CRAWFORD mark "Father of Andrew Crawford. "Attest : HENRY B. HENDERSHOTT."
The couple were married March 15, 1844, by R. R. Jones, justice of the peace, at the house of Peter Walker. The groom was nineteen, and the bride sixteen years of age.
The second marriage license was that of Dr. C. W. Phelps and Elizabeth C. Weaver; the third that of John P. Scott and Elvira A. Weir. The latter marriage was solemnized at Agency City, by Rev. Benjamin A. Spaulding, April 17, 1844.
The authority possessed by Mr. Spaulding was filed at this time, and consisted of a license issued by the clerk of the District Court of Jefferson County, Iowa.
On the 28th, of August, 1844, the certificate of ordination issued by Bishop Morris, of the Methodist Episcopal Church, August 29, 1841, pro- claiming Thomas M. Kirkpatrick a fully consecrated elder in the said Meth- odist Episcopal Church, was filed by the clerk of Wapello County. This was to establish Mr. Kirkpatrick's authority to solemnize marriages.
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A similar document was filed by Rev. Robert Long, of the Christian Church, on the 9th day of November, 1844.
During the first year of the county's existence the following mar- riage licenses were granted :
George Nelson to Isabella Frances Hackney, November 9; Seth Ogg to Rebecca H. McIntire, April 28; David Glass to Eliza Jane Hall, June 19; Joseph McIntire to Mrs. Sarah Murphy, July 2; William Carter to Mary Jane Lewis, August 21; William F. Bay to Nancy J. Kirkpatrick, Septem- ber 5; Alexander Kitterman to Else Linch, September 24; James S. Baker to Tamas Overman, September 28; Thomas J. Linnard to Julina Lambert, September 30; Melville H. Talbott to Elizabeth Rouse, October 4; James R. Fisher to Sarah McCall. October 5; Charles Wallace to Cynthia M. Ross, October 9; George Howlet to Sarah Wilson, November 7; William Parker to Lavinia Boyce, December 2; James Stephens to Mary Ann Har- row, December 18; James D. Huffstetter to Eliza Ann White, December 30. On the 24th of April, 1845, Rev. John Pardoe filed his certificate of ordination as a Methodist Protestant clergyman.
November 26th, Rev. Joseph Ackerman filed his certificate of authority to solemnize marriages, having his ordination papers issued by Bishop Roberts, of the Methodist Episcopal Church. The papers were dated at Terre Haute, Indiana, October 10, 1841.
Thirty-six marriage licenses were issued out of the clerk's office of Wapello County during the year 1845.
G. B. Savery succeeded Judge Jeffries in 1846, but remained in office only a short time. He was followed in the same year by James Weir. Then came James Baker in 1848 and in 1849 D. M. C. Lane. The last distinctive probate judge was George May, who was elected in 1850. In 1851 the office was abolished.
THE OLD AND THE NEW LAWYER By Edward H. Stiles
Edward H. Stiles, a long time member of the Wapello County bar, now passing his declining years at Pasadena, California, delivered an address before the banquet of the Iowa State Bar Association, held at Ottumwa, July 14, 1904, in which he in part said :
My theme, "The Old and the New Lawyer," I take it, is to be under- stood as applying on the one hand to the lawyer of the past, and on the other, to the one of today. I shall confine myself for the most part to the former. The latter, you know as much about as I do and can draw your own contracts and conclusions. Particular instances will probably better serve to execute my purpose than general allusions, and hasty glances of some of the personages who figured in the times of which I am to speak, better than a description of them as a class. Of course the personal refer-
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ence I may make will in no sense rise to the dignity of biographical sketches, but merely kodiac (I have a strong suspicion that this is a new coined word) glimpses of my subject.
But let us see who they are and from them select a few who will give a fairly good notion of the whole, at least in some respects. And let me say here, that it will sufficiently answer my purpose to take for examples from the lawyers who were in the habit of attending this bar when I was admit- ted, nearly fifty years ago. From my youthful appearance I am sure this statement as to time will not be regarded as seriously made. But alas ! it is but too true. While not quite a half a century, it is forty-seven years ago. The Indians had been gone only fourteen years; their depart- ing footprints were scarcely effaced; their wailing farewell to the land they had loved could almost be heard in the whispering winds of the surrounding forest. But let it be remembered that it was not then customary to exclude a bright applicant on account of his age, and so, I am not bound to say how youthful I then was.
The judge I found upon the bench was H. B. Hendershott. God bless his memory! I doubt if there was ever a better nisi prius judge. It was my pleasure to make for the historical department of your state as good and complete a sketch of him as I am able to make, which you will find published by the historical department under the very able management of that fine historical collector, to whom Iowa is greatly indebted for his labors in that behalf, Charles Aldrich.
Among the attending lawyers were Samuel W. Summers, Homer D. Ives, A. H. Hamilton, Morris J. Williams, John A. Johnston, Thomas Bigham, A. W. Gaston, J. W. Dixon of this county.
George May, distinguished for his brilliancy and his dissipation, had just gone, and A. A. Stuart, a bright Brown University graduate, after- ward a captain in the Seventeenth Iowa Infantry, and author of the history of the Iowa colonels and regiments, had not yet arrived. From the other counties in the district were H. H. Trimble, Matt Jones and Harvey Dun- lavey of Davis. Sam Curruthers and James B. Weaver commenced visiting our bar a little later; from Appanoose, Amos Harris and Harvey Tanne- hill ; from Monroe, Daniel Anderson, John S. Townsend and T. B. Perry- a very able lawyer just then come to the bar; from Van Buren, Joseph C. Knapp, George G. Wright, Henry C. Caldwell, Charles Baldwin, Charles Nourse, Bertrand Jones, Frank Semple, Isaac Kinley and Smith. Robert Sloan who for many years has been one of your faithful and able judges, was not then old enough to be trusted away from home. From Keokuk County, George D. Woodin, Ezekiel Sampson, Samuel Harned and that prince of lawyers and gentlemen, Edward L. Burton. He did not remove to Ottumwa until the following year. Cyrus Mackey was not yet admitted. And from counties outside of the district who frequently attended, there were David Rorer, J. C. Hall, M. D. Browning, Harrington, Charles
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Phelps, Henry W. Star and Henry Strong of Burlington; from Keokuk, Samuel F. Miller, Daniel Miller, John W. Rankin, Hugh T. Reid, John W. Noble, J. M. Love, Samuel R. Curtis and Judge Cliggett. R H. Gilmore and Scott Howell came, I think, a little later. From Fairfield, Charles Negus, Christian W. Slagle, George Atchison, James F. Wilson and soon afterward Daniel P. Stubbs and Moses McCoid; from Mt. Pleasant. Wil- liam Thompson, familiarly known as Black Bill, Leroy Palmer, R. L. B. Clark, a brother of Grace Greenwood, Alfred Bereman and Henry Clay Dean; from Oskaloosa, Judge W. H. Seevers, Micajah Williams, J. A. L. Crookham and Enoch Eastman ; from Lucas, James Baker and Warren S. Dungan.
Of that entire throng but few remain to tell the tale. Of those that belonged to the bar of this county, A. H. Hamilton and myself are the only survivors. He and Morris J. Williams were partners. Mr. Williams was purely a lawyer, and a good lawyer. If there ever was a man who made the cause of his client his own, it was he. They were always veritable paragons of justice and right and their witnesses the personal embodiments of truth. Those belonging to the other side were very emphatically placed on a lower seat. That was one of his leading characteristics. Another was his caustic treatment of cases and his severity in cross examinations. He put a damaging witness on the rack and turned the thumb screw with skillfulness; and in his summing up to the jury, indulged in an irritating sarcasm that penetrated the weakness of his adversary's argument like some dissolving acid. He was naturally inert, but once entered upon a trial, he was able to effectively invoke the powers I have alluded to. He was a for- cible speaker but had little taste for, and was a poor hand at politics. Though he was elected and served for four years as judge of this judicial district, this was a compliment to his ability, rather than to any political craft he possessed. He was abstemious to a fault. The choicest wines of the gods could not tempt him. He was plain in taste, dress and manners. He came from Indiana and bore to some extent the air of its woods. But the atmosphere of those woods must have been infused with that of the adjacent state of Kentucky, for he not only loved fine horses, but he bred them and put their mettle to the test in the races. And this reminds me, if you will pardon the digression, of a recent incident in my state. A legal acquaintance of mine living in one of the back-woods villages, attended the funeral of an old friend in the country. By reason of the incessant rains and swollen streams, the clergyman who was expected to conduct the serv- ices was unable to reach there, and my legal friend, who was known to have been an intimate of the deceased, was called upon to make a few remarks. He could not under the circumstances refuse, and accordingly arose and said: "My friends, I have been requested to say a few words on this occasion, and have consented to do so, but as this is out of my line I shall be obliged to be very brief. Our deceased brother was as good a
Vol. 1-14
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man as God ever made. He was kind-hearted, generous and true. He was a fine specimen of an old-fashioned Kentucky gentleman. He kept roosters and he fit 'em; he kept horses and he run 'em; he kept cigars, and he smoked 'en; he kept liquors, and he drunk 'em ; for of such is the kingdom of Heaven."
Judge Williams was a lawyer and judge of ability, and an honorable and upright gentleman in every respect.
His partner, A. H. Hamilton, was a man of decided talents, and had he adhered steadily to the profession, would undoubtedly have developed into one of the leading lawyers of the state. But he left it while com- paratively young to take up arms for his country in the great Civil war.
He was an heroic officer and suffered not only the hardships of the field, but of a loathsome captivity, followed by an escape fraught with incidents of the most distressing character. Fleeing with his three com- panions from their pursuers, avoiding the highways and settlements; seek- ing the woods and thickets to hide themselves in during the day, and at night wandering with bleeding feet through the forest and field, without any compass save the north star to guide them to our lines; without any food but such as the herbs and the ears of uncooked green corn afforded, they suffered a series of hardships so severe that all three of his com- panions subsequently died from the effects thereof.
At the close of the war he did not return to his profession but entered the field of journalism and became the proprietor and editor-in-chief of the Ottumwa Courier, then and now one of the leading journals' of the state, He was universally regarded as both a forcible and facile writer.
I have been speaking of Major Hamilton as if he were dead. On the contrary, at the age of nearly four score years (born January 19, 1827), he is very much alive; and in my judgment is the most notable and justly distinguished old man in this part of the state. The old maxim "de mortuis nil nisi bonum," is not a restraint upon speaking also well of the living; and Major Hamilton's venerable age and retirement from professional life, I am sure, justifies me in thus speaking of him on this occasion; especially in view of my reference to him as being the only survivor, with the excep- tion of myself, of the bar here of 1857.
The major had his faults-at least I thought so; and there is not the slightest doubt in the world that he had the same opinion of me; and there is as little doubt that the frequent and sometimes spirited interchange of our mutual opinions on this subject, bred mutual asperities. But I can do him simple justice all the same. Besides, I believe the assuaging hand of time has long since effaced these asperities as effectually as was the blas- phemous oath of Uncle Toby, which the recording angel bore up to Heaven's chancery, and upon which as he set it down, he dropped a tear, which blotted it out forever.
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But before dealing with any more personalities, let me refer to some conditions which, speaking in round numbers, prevailed in the practice a half century ago, but do not exist today. We had no court stenographers, nor indeed, any other kind. We could not as now, if we desired for the purpose of argument to know what a certain witness had testified to on such and such a point, request the court stenographer to transcribe a por- tion of his minutes concerning the same. Nor could we, as now, in case we desired a bill of exceptions for the purpose of appeal, simply ask the stenographer to furnish a transcript of the evidence. Hence it became necessary for those uses, that the lawyer engaged in the case should note down as the witnesses testified, the substantial portions of their evidence. In every important case therefore that was likely to be appealed, two counsel were generally engaged for either side, and while one was engaged in examining a witness, the other was noting down as best he could the important parts of his testimony ; and it was upon this basis, thus obtained, that bills of exceptions were made up, when appeals were taken, and it was claimed that the verdict was not supported by the evidence, or that instructions had been given that were not applicable, or that instructions had been refused that were correct, or that erroneous rulings had been made, on the omission or rejection of evidence. And here it was that the "fuss" began. For the lawyers appealing depended on the notes they had taken during the trial to make up the bill of exceptions from; and from various apparent causes, these notes would frequently disagree with those taken by counsel on the other side. One counsel had taken down what he conceived to be the substance of the witness' statement; the other might claim he had taken down his exact words; but the substances did not agree; and this disagreement might contain a pivotal point in the case. And thus the wrangle might continue and become more intense as it proceeded, until in the end, failing to agree, it would be left to the judge to adjust these differences as best he could from his own recollection of the testimony and settle the bill. And in case of his failure to do so, bystanders, as they were called, who had listened to the evidence, were called in to aid in settling the bill.
What trying and intense labor this course of procedure involved in important and complicated cases, may be easily appreciated. No wonder that so many of the great pioneer lawyers sought solace for their over- strained nerves in the flowing bowl. All of this has been done away with. I mean, of course, that trying method of procedure. The flowing bowl, I am told, still remains in certain districts.
Nor in the earlier period of the territory and state was it necessary on appeals to the Supreme Court, to print the abstract and arguments of the counsel. They might be in writing. And slight vestiges of this prac- tice remained even up to the time I was appointed reporter on the Supreme Court, now nearly forty years ago. Ah, and what a court it then was,
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with Dillon and Wright at its head. The learning and personalities of its judges, almost justify in respect to them, the extravagant encomium which Mr. Wirt passed upon Sir Matthew Hale as a judge: That, "With a mind beaming the effulgence of noon-day, he sat on the bench like a descended god."
Then the Supreme Court was perambulatory, holding its sessions respectively at Des Moines, Davenport and Dubuque, and it was made the duty of the reporter under the law to accompany the judges at those ses- sions, hear the arguments and observe the proceedings in each case as it was presented, in order that he might the more thoroughly understand and report the points involved. This had the pleasant tendency of placing the reporter on more intimate terms with the judges and attending lawyers from different parts of the state than would otherwise have existed; and as I look back over the flight of years, I deem my association with those judges and lawyers one of the dearest privileges of my life.
Another change that has taken place is in the mode of preparation for and admission to the bar. The usual course then for a young man who desired to become a lawyer was to enter the office of some eminent or good lawyer, and study the books and practice under him for a couple of years ; going to court with his preceptor, carrying his books, assisting him in the collection of the witnesses, observing the private preliminary drill-a very important function by the way, in the preparation of the case-the manner of opening the case, the examination of the witnesses, the drawing of instructions, the final argument, and indeed, all the steps taken from the beginning to the end of the cause. After this course of study and discipline had been finished, and Blackstone's Commentaries, Kent's Commentaries, Chitty's Pleadings, Greenleaf's Evidence, Parson's Contracts, Story's Equity Jurisprudence, Bishop's Criminal Law and Practice, and lastly the Code, had been read by the student, his preceptor, who had become a sort of legal sponsor, moved the court to appoint a committee to examine the student for admission to the bar. Accordingly a committee of three would be appointed from the lawyers in attendance to examine the student and report upon his qualifications. If the report of the committee was favor- able he was admitted and sworn in. If not, he was remitted to a further course of study. It was popularly supposed that in rare instances, the committee in forming its judgment considered along with the legal quali- fications of the applicant, his ability to set up the oysters with the appro- priate cordial, as a supplement to the examination. But I feel sure this was a popular slander. After all, it is a question whether this old mode has not turned out in proportion more better equipped and successful lawyers than the one now generally in vogue, of sending the young man to a law school and at the end of his curriculum having him brought down in a class to be examined by the Supreme Court, or rather, its judges. Shortcomings occasionally appear in either mode. Almost everything
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