USA > Missouri > The history of the bench and bar of Missouri : With reminiscences of the prominent lawyers of the past, and a record of the law's leaders of the present > Part 1
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Gc 977.8 St49h 1349169
GENEALOGY COLLECTION
ALLEN COUNTY PUBLIC LIBRARY 3 1833 01053 5414
3-15.66
Digitized by the Internet Archive in 2013
http://archive.org/details/historyofbenchba00stew
THE HISTORY OF
THE BENCH AND BAR
OF MISSOURI.
WITH REMINISCENCES OF THE PROMINENT LAWYERS OF THE PAST, AND A RECORD OF THE LAW'S LEADERS OF THE PRESENT.
A. J. D. STEWART, EDITOR.
Containing also Personal Recollections and Articles Contributed by the Most Eminent Jurists, Able Lawyers and Learned Authorities in the State.
HON. JAMES 0. BROADHEAD .- Reminiscences of Fifty-five Years of Practice.
HON. GEORGE H. SHIELDS .- Old Bar of St. Louis.
HON. ELIJAH HISE NORTON .- Bench and Bar of the "Platte Purchase."
HON. JOHN C. GAGE .- The Jackson County Bar.
JUDGE JOHN W. HENRY .- Personal Recollections.
HON. THOMAS SHACKELFORD .- Reminiscences of the Bench and Bar in Central Missouri.
JUDGE CHARLES B. MCAFEE .- Riding the Circuits in Southwest Missouri.
HON. HARRY LANDER .- Land Laws of Missouri.
HON. W. O. L. JEWETT .- Early Bar of Northeast Missouri.
HON. HENRY LAMM .- The Pettis Bar.
JUDGE J. G. WOERNER .- Development of the Missouri Law of Administration.
HON. BANTON G. BOONE .- A Cause Celebre-Birch vs. Benton.
HON. SENECA N. TAYLOR .- Evolution of Corporation Law in Missouri as Affecting the Development of the State.
EX-GOV. CHARLES P. JOHNSON .- Recollections of the Criminal Practice.
JUDGE HENRY W. BOND .- St. Louis Court of Appeals.
JUDGE WILLIAM C. MARSHALL .- Municipal Law in Missouri.
HON, MELVIN L. GRAY .- Recollections of Judge Roswell M. Field.
PAUL BAKEWELL, Esq .- Patent Laws of the United States.
HON. CHARLES NAGEL .- St. Louis Law School.
WILLIAM P. BORLAND, Esq .- Kansas City School of Law.
HON. DANIEL S. TWITCHELL .- Well-Known Members of the Early Bar of Jackson County.
HON. JOHN C. GAGE .- Willard P. Hall-His Career and Character.
ILLUSTRATED.
ST. LOUIS, MO. THE LEGAL PUBLISHING COMPANY. 1898.
Entered according to Act of Congress by THE LEGAL PUBLISHING COMPANY, In the office of the Librarian of Congress, at Washington, In the year 1898.
PRESS OF LITTLE & BECKER PRINTING CO .. ST. LOUIS, MO.
PREFACE.
W HILE two or three excellent partial or condensed histories of Missouri have been published, the page which the commonwealth is destined to occupy in the annals of the Republic has as yet been scarcely touched by the pen of the historian. Though it may not span as inany years as the story of other states or nations, its wealth of romantic, picturesque and heroic detail, the rapidity of the shifting scenes in its transfor- mation from a wilderness to a civilized and wealthy State, together with the strong and virile characters that have crossed its stage, must make it a record of surpassing interest, when completely and worthily told. And because this field has been so little cultivated, and so little data has heretofore been gathered, the formidable character of the task of writing and compiling a history of the bench and bar-but one factor of the State's greatness- will be understood. 1349169
In the attempt to give to posterity this the first accurate and complete history of the bench and bar of Missouri, no effort has been inade to follow the conventional methods of his- torical narrative, or to tell the story in progressive sequence, but the author conceives the work will be none the less interesting because of this departure from the accepted method. The history of the men, events and legal customs and peculiarities of the past-"and there were giants in those days"-is incorporated in the reminiscences and interesting personal recollections of the inost venerable and eminent and experienced men who grace the bench and bar of the State to-day. The various elements of jurisprudence, the numerous changes, the influences, progress and development of legislative enactment and the different depart- inents of the law, are subjects treated by the mnost learned authorities in their several branches. And lastly, the contemporary record of bench and bar, as well as much past history, is to be found in the biographies of the living leaders of their profession throughout the State.
It will be noted that the matter contributed by the old pioneers of the profession, in many instances follows the same course, and treats of the same mnen; but the lives of these older lawyers who gave luster to the Missouri bar, and who wrought at the responsible labor of shaping the destinies of the young commonwealth in its most plastic state, are of vital interest to posterity, and therefore though the "lines narrative " may at times converge to the same subject, the question is certainly one on which too much light cannot be thrown. The estimate of each of these strong men by the inen of the contemporary bar, their suc- cessors in leadership, can never be otherwise than instructive.
In the biographical department our effort has been governed by the intention to give those only who were worthy and were considered as occupying a front rank in their pro- fession and community, a place in this work. No doubt there will be people who will differ with us as to the degree of success achieved, for ability and reputation are not absolute quantities; but while we are aware that the biographies of some men who deserve a place herein have been omitted, and that there may be a few incorporated not worthy of this selected company, it is believed that the biographical part of the work may be fairly con- sidered a galaxy of Missouri's most talented and distinguished lawyers and judges. In the excellence of artistic illustration, in binding and material and typographical appearance, the editor feels satisfied that the work will compare with the best issue of any press.
Putman BookSHOP $15.00 2-9-66 P.O. 1867
PART I-EASTERN DIVISION.
JURISDICTION OF THE ST. LOUIS COURT OF APPEALS.
.
REMINISCENCES OF FIFTY-FIVE YEARS OF PRACTICE.
BY JAMES O. BROADHEAD.
"HE fabric of civilized society is supported by the pillars of the law; they cannot stand T without the observance of certain rules of conduct, which spring from a sense of moral obligation, and a regard for the rights and happiness of each member of the social compact. We call it a compact, because as long as a given people acquiesces in, or endorses a form of government which controls the affairs of a society of men, there is an implied agreement to maintain it. These rules should be founded on the principles of eternal justice as dic- tated by the consciences of men, chastened and strengthened by the precepts of the Divine law. This has been the struggle of the ages, and although it may be impossible to attain perfection in this respect, the principles remain unchanged and ought to be appealed to whenever there is an opportunity to enforce them.
There is undoubtedly implanted in every human bosom a consciousness of what is right- a sense of natural justice, which may be and too often is overpowered by the pride, selfish- ness, ambition or brutal passions of our nature, but it is never wholly eradicated; strictly speaking, a rule of the moral law, or a sense of natural justice, is not law as controlling the actions of men in a community, nor does it become law until the sovereign law making power of the State has ordained it; but it is the source of all just laws, whether they emna- nate from custom, from statutory enactment or judicial legislation, and because in all civi- lized communities, there is an effort in the enactment of laws to make them conform as nearly as possible to the precepts of natural justice, or the Divine law as it speaks through our conscience, those precepts become rules of interpretation to the lawyer and to the Judge in ascertaining individual rights and obligations. As justice is a sentiment which prompts us to respect the rights of others, to render to each one that which belongs to him, and to secure those rights by law, so the precepts of justice should be the interpreter of the law, which emanates from the sovereign authority of the State, and which is called "the perfec- tion of reason," because when properly interpreted it is binding upon all, and the attempt by reason to establish any other rule would be an attempt to subvert the law; and the sub- version of the law in any case except where its enactinents become so universally burden- some as to justify revolution, takes away from every individual the only security he has for the protection of his rights of person or property. Those rights are always safe when the law is fairly interpreted, and it is the especial province of the lawyers and the judges to see that it is thus interpreted.
Lord Coke says that, "a substantial and compendious report of a case rightly adjudged, doth produce three notable effects: First, it openeth the understanding of the reader and the hearer; secondly, it breaketh through difficulties; and thirdly, it bringeth home to the hand of the studious, variety of pleasure and profit. I say it doth set open the window of the laws, to let in that gladsome light whereby the right reason of the rule (the beauty of
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
the law) may be clearly discerned; it breaketh the thick and hard shell, whereby with pleasure and ease, the sweetness of the kernel may be sensibly tasted, and adorneth with a variety of fruits, both pleasant and profitable, the storehouses of those by whom they were never planted or watered."
Whether this be considered a mixture of metaphors, or a variety of illustrations, it is beyond criticism, because it comes from one of the great masters of the common law.
In the positions which I have occupied, both public and private, more than fifty years of my time has been spent in the practice of iny profession, and I have found that the knowledge of such legal principles as I acquired in early life have been of use to me. In the practical walks of life they have guided my footsteps; in the discharge of public duties that knowledge has been the light which has pointed the way to the solution of the grave questions that concerned the public welfare; as a code of ethics, none that has been invented by human wisdom is superior to the maxims of the common law. The wayward- ness of human passions and prejudices, which carry men to such extremes that they can see but one side of a case is tempered by the maxim, "Audi alteram partem"-hear both sides-which is a fundamental maxim in the administration of justice; and when the student comes to learn in the horn books of the law, the relations of men toward each other in the practical affairs of life, he is again confronted with that wise, humane and Divine maxim: "Sic uteu tuo ut non alienum lodas"-so use your own as to not injure another.
The school of the practicing lawyer enables him to acquire a practical acquaintance with human nature in all its multiplied phases. He may learn what weakness may be par- doned, what excess of passion may be condoned; he may learn that there is in most instances two sides to every case; how apparent violations of right may be explained; how little difference there is in the great mass of human beings, and what are the secret springs of human actions which are hidden froin the outside world, and he is therefore less disposed to form a rash judgment of human actions.
It belongs to the members of the legal profession to study the rights of individuals in their various relations to each other and to the State, and to see that they are secured by a just administration of the law. To do this demands as well a thorough knowledge of the principles of jurisprudence as taught by the masters of the profession, the special enact- inents of legislators and the origin of customs which have ripened into laws, by the judg- ment of competent tribunals, not, however, by too much reading but by much reflection and reasoning upon what the law should be in a given case, as also the relations of the different members of society to each other, the various industries which become subjects of contracts, the products of human genius, which in the progress of civilization have developed new industries, and to what extent they have changed former conditions; and in all legal con- troversies in which they may be concerned, to make a fair and honest presentation of the law and the facts before the court; and above all things to avoid the stirring up of litigation, and when consulted by a client, to counsel the settlement of a controversy without litiga- tion if it is decmed advisable to do so; and under all circumstances, as an officer of the court, to have the courage to defend the right, however it may be assailed, whether by the voice of the multitude, or the despotism of a single individual clothed with official power.
This, it may be said, is the lawyer in the abstract-and so it is-and we are happy to say that a few of such may be found ; but of the lawyer in the concrete, of whom I am glad to say there are few in numbers as compared with the great mass of the profession, but there
9
REMINISCENCES OF FIFTY-FIVE YEARS OF PRACTICE.
are so many varieties that it would be impossible to lay down any general description which would embrace them all. Some would suppress the truth or suggest a falsehood, even though it would bring no benefit either to thein or their clients; some would advise the bribing of witnesses; others would stir up litigation, or make personal appeals to be employed in cases and some would answer the definition of Lord Brougham, to-wit: That "a lawyer is a learned gentleman, who rescues your estate from your enemies and keeps it himself." Some without regard to value of their professional services would extort unreasonable and exorbitant fees, by an exhibition of impudence, assurance, or as it is sometimes called, " cheek," by which the unwary client is entrapped into the belief that he is dealing with a great lawyer who is all that he pretends to be. "I would rather have your cheek," said a gentleman to a petty attorney, "than a license to steal."* I am sorry that there are inany of this class. They will never become great lawyers, but only great appropriators of other men's means. They reap what they have never sowed or watered.
In spite of all these shortcomings and inalpractices on the part of many members of the legal profession, society owes much-and perhaps more-to them than to any other class of citizens. In the exposition of the law as applied to human rights and obligations, as well as in the struggle against arbitrary power, as the pages of authentic history inform us, the lawyers have been the chief actors, and whatever prejudice may exist against thein as a class, springs from the conduct of those who are unworthy of the profession. It cannot be disputed that in the defense of human rights against the encroachments of arbitrary power; in devising and formulating the enactments intended to protect life, liberty and property ; in the framing of constitutions and generally in the organization of the forces necessary to preserve the peace and happiness of the members of society, the efforts of no other class of individuals will bear a comparison with theirs. It is not because they are naturally better or more active men, but because in civilized society, the law being the standard of right in all the civil relations which men bear to each other, it is the province of the members of the profession to study and ascertain the nature and extent of the obligations and rights which belong to each individual, to be informed of what is prescribed, and to devise new methods of promoting the welfare of the individual and of the public.
I have been requested by the publishers of this work to give some reminiscences and make some historical reference to the bench and bar of Missouri of the olden time.
The ordinance of the Missouri Constitutional Convention, accepting the conditions of the act of March 6, 1820, providing for the admission of the State into the Union, was adopted on the 19th of March, 1820, and an attested copy of the Constitution was sub- mitted to Congress. There were certain clauses in that instrument which gave rise to a protracted controversy in Congress, and on the 2nd of March, 1821, the Senate and House of Representatives adopted a resolution to admit Missouri into the Union on the footing of the original States, providing the Legislature should by a solemn public act declare the assent of the State to the condition that the fourth clause of the twenty-sixth section of the Constitution submitted to Congress on the part of the State, shall never be construed to authorize the passage of any law by which any citizen of either of the States of the Union shall be excluded from the enjoyment of any of the privileges and immunities to which such citizen is entitled under the Constitution of the United States. The clause referred to permitted the owners of slaves to emancipate them, saving the right of creditors where the
* "A Club of One," by A. P. Russell.
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
person so emancipating will give security that the slave emancipated shall not become a public charge. On June 26, 1821, the General Assembly passed an act assenting to the conditions imposed by Congress by the resolution of the 2nd of March, 1821, and on the 10th of August, 1821, the President issued his proclamation declaring that Missouri was admitted into the Union. So that on the 10th of August, 1821, Missouri became a State of the Federal Union.
Prior to the admission, a Governor and members of the Legislature had been elected and the other officers appointed. Alexander McNair had been elected Governor. The Judges of the Supreme Court were appointed by the Governor and confirmed by the Senate. The first three Judges of which the Supreme Court was then composed were Matthias McGirk, of Montgomery County, John D. Cook, of Cape Girardeau County, and John R. Jones, of Pike County. The Judges were to hold their office during good behavior, and until they arrived at the age of sixty-five. John D. Cook resigned in 1823, and Rufus Pettibone was appointed to fill the vacancy; John R. Jones died in 1824, and George Thompkins was appointed to fill the vacancy; Rufus Pettibone died in 1825, and Robert Wash was appointed to fill the vacancy; Robert Wash resigned in 1837, and John C. Edwards was appointed to fill the vacancy; John C. Edwards resigned in 1839, and William B. Napton was appointed to fill the vacancy; in 1841 Judge McGirk resigned, he having held the office for twenty years, and William Scott was appointed in his place. The Supreme Court consisted of Thompkins, Napton and Scott when I came to the bar in 1842. In 1845 Judge Thompkins arrived at the age of sixty-five. A vacancy having thus occurred, Priestly H. McBride was appointed to fill it.
By an amendment to the Constitution, proposed by the General Assembly in 1847 and ratified on the 11th of January, 1849, the offices of the Supreme Judges became vacant on the 1st of March, 1849, and the Governor was authorized to appoint the Judges of the Supreme Court to hold their offices for a term of twelve years, and under the provisions of this amendment, William B. Napton, John F. Ryland and James H. Birch were appointed. At the same session of the General Assembly (1849) another amendment was proposed and voted for by a majority of two-thirds of both houses, making the Judges of the Supreme Court elective for the term of six years, the first election to take place on the first Monday of August, 1851. This amendment was ratified by the General Assembly by a like vote of two-thirds of both houses as required by the Constitution, and the offices of the incumbents were vacated by the terms of the amendment. The Circuit Judges were also made elective for six years.
At the election provided to take place on the first Monday of August, 1851, Hamilton R. Gamble, Jolin F. Ryland and William Scott were elected. Gamble was a Whig-the State was Democratic-but the high character of the man, his learning and ability were so conspicnons and so highly appreciated, that he was elected to the Supreme Bench. On the 15th of November, 1854, Gamble resigned, and on the 1st of January, 1855, at a special election, Abiel Leonard, of Howard County, was elected to fill the vacancy. Mr. Leonard was also a prominent member of the Whig party, but he was also elected in a Democratic State because of his high character and ability as a jurist. And no Judge who ever held a seat 11pon the Supreme Bench of Missouri has been his superior in ability, learning or judicial acquirements.
At the Angust election in 1857, William Scott, William B. Napton and John C. Rich- ardson were elected as Judges of the Supreme Court. Judge Richardson was also a Whig
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REMINISCENCES OF FIFTY-FIVE YEARS OF PRACTICE.
in politics elected in a Democratic State, and we cannot speak too highly of his ability and integrity. In 1859 Judge Richardson resigned, and Judge Ephraim B. Ewing was elected to fill the vacancy. The war came on in 1861, and the Convention chosen by a vote of the people, established a provisional government for the State, elected Gamble Governor, and passed an ordinance, the effect of which was to vacate the offices of the Supreme Judges. Under the provisions of the same ordinance, Governor Gamble appointed Barton Bates, W. V. N. Bay and John D. S. Dryden Supreme Judges, and in November, 1863, they were elected by the people.
On the 13th day of February, 1864, the General Assembly passed an act providing for the election of a State Convention of delegates, two froin each Senatorial District, the elec- tion to be held on the first Monday of November, 1864, at which time the qualified voters of the State should vote "for a State Convention " or "against a State Convention, " and if a majority of the votes should be cast for a Convention, then the Convention should assemble at St. Louis on the 6th of January, 1865. The majority of the votes having been returned for a Convention, the Convention assembled as provided. The act gave the Con- vention authority to consider:
1. Such amendments to the Constitution of the State as may be by them deemed necessary for the emancipation of slaves.
2. Such amendments to the Constitution as inay be by them deeined necessary to pre- serve the purity of the elective franchise to loyal citizens, and such other amendments as may be by them deemed essential to the public good.
There can be no question but that the powers of this Convention were limited to the consideration of the subjects designated by the act of the General Assembly. The dele- gates were elected by the people under the provisions of the act, and for the objects pointed out in the act. They had special powers and those powers only could be exercised. To say that they had other powers than those specified, is to affirin they had all powers which they chose to exercise. Those powers were clearly and distinctly to amend the Constitution.
On the 17th of March, 1865, this Convention passed an ordinance providing among other things for the vacating of all judicial offices, including those of the Judges of the Supreme Court. This was no amendment, or anything in the nature of an amendment to the Constitution. It added nothing to, nor did it take away any provision of the Constitu- tion, but was simply an arbitrary and revolutionary act. This ordinance was never sub- mitted to the vote of the people as the Constitution was. Under the provisions of this ordinance, the Governor claiming that the ordinance was valid and the offices of the Supreme Judges vacant, appointed David Wagner, Walter L. Lovelace and Nathaniel Holmes Judges.
These new Judges issued an order calling a special term of the Supreme Court to be held at St. Louis on the 12th of June, 1865. Judges Bay and Dryden also issued an order calling a special term of the Court at the same time and place, Judge Barton Bates having previously resigned his office on the first day of February, 1865. On the day appointed Bay and Dryden took their seats upon the bench and proceeded with the business of the Court. The next day, June 13, Governor Fletcher through D. C. Coleman, Adjutant Gen- eral, notified Bay and Dryden that the ordinance of the Convention was the supreme law and that it was his duty to enforce it, and that he would treat "as they deserve, any acts on their part, done in furtherance of a design to intrude themselves into and usurp the powers of the office of Judge of the Supreme Court." There was no civil proceeding, in
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
aid of which the military was called upon, there was no riot or insurrection, no existing war, no criminal or political offenses charged against the existing Judges, but simply an effort on the part of Bay and Dryden to hold the offices to which they had been elected by the people, and whose functions they had discharged for several years. They refused to obey the order of the Governor and so informed Coleman, who in a short time returned with a police force and presented them the following order:
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