Centennial history of Missouri (the center state) one hundred years in the Union, 1820-1921, Volume I, Part 104

Author: Stevens, Walter Barlow, 1848-1939
Publication date: 1921
Publisher: St. Louis, Chicago, The S. J. Clarke publishing company
Number of Pages: 1074

USA > Missouri > Centennial history of Missouri (the center state) one hundred years in the Union, 1820-1921, Volume I > Part 104

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Washington Adams' Quotation from Byron.

"The last case in which he appeared on the circuit, within my observation, was at Boonville. Because of the high social standing of the litigants and the eminent counsel engaged in it, the case became 'casus celebre.' It was the first case of note in which George G. Vest appeared, and established by his brilliant speech a reputation for oratory that never waned. Wash. Adams, Sr., was of leading counsel for the defendant with Leonard. Mr. Adams afterwards became judge of the supreme court of the state. He was an all 'round good lawyer, strong, aggressive, full of assertion, and armed at every point with a thorough knowledge of the law. He had, in discussion, a way of saying, 'These are the facts' and 'This is the law,' that defied contradiction, and made the timorous hesitate to gainsay it. He furnished proof of the assertion that the expert pleaders and practitioners under the old Chitty system made the best pleaders and practitioners under the new code. There was no place in his rugged mind for fancy or poetry. In one of their consultations, during the trial of the crim. con. case, a phase of the evidence recalled to Vest's mind the lines of 'Don Juan' :

"'A little while she strove, and much repented, And whispering "I will ne'er consent" consented.'

"They struck Mr. Adams with the idea of their possible utility in his coming address to the jury. So he asked Vest to repeat them slowly that he might fix them firmly in his memory. When he reached the point in his address to the jury where he thought the lines would fit in, he said :

"'Gentlemen of the jury, the conduct of the plaintiff recalls the lines of Lord Byron's poem about one Don Juan and Julia, which go on to say: "A little still she strove and much repented."'

"Right there his memory lapsed. After an ineffectual effort to catch on to the other line, in characteristic tone, he said: 'Gentlemen, I'm no poetry lawyer, but the idea Byron tried to express was that the woman said she wouldn't when, by the eternal, she did.'

"The leading counsel for the plaintiff was James B. Gardenhire, then attorney general of the state, an excellent lawyer, whose thoughts, always prolific, were conveyed on a vehicle of rhetoric beautiful and charming. The plaintiff was a very attractive woman, in the full glow of exuberant life; and the defendant, who was her cousin, was in the lusti- hood of his manhood.

Why Gardenhire Lost.

"In his closing address to the jury, Gardenhire gave full play to his gifts as an advo- cate. Judge Leonard, with his chair tilted back against one of the framed pillars enclos- ing the bar, and near to the jury, was listening with rapt attention to the rhythm of Garden- hire's . well-rounded sentences. In illustration of what the defendant's deportment should have been, under the circumstances that provoked the alleged assault upon the plaintiff, he described an incident in his own life. He was attending court at Independence, Missouri. Being out late one night, engaged at some lawyer's office, he returned to his hotel and to his room, as he thought. Lighting the candle, in use in those days, he at once disrobed for bed. The bed was of the ancient aristocratic type, with tall posts, surmounted with a canopy, with curtains extending almost to the floor. Parting the curtains to turn down the covers, he was astounded to discover in the bed a female form, all unconscious in

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CENTENNIAL HISTORY OF MISSOURI

deep, innocent sleep. Her raven locks were curled over alabaster shoulders; the roses were a-bloom on her cheeks; the silken eyelashes hung low; and two ripe cherries were seeming- ly being kissed by her half-parted lips; while her bosom rose and fell above a Hebe waist. Turning his sparkling eyes upon Leonard, in a dramatic manner, he exclaimed: 'What did I do, but like a gentleman close the curtains, rerobe myself, extinguish the candle, and silently retire from the room, instead of imitating the conduct of your client by attempting to leap the ramparts of virtue, and feast upon chastity! What, sir, should any gentleman have done? Would you have imitated the example of your libidinous client?' Leonard, wrought to a high pitch of excitement by the portraiture, brought his tilted chair with a thud to the floor, and in a hoarse whisper that echoed like a voice in the dome of St. Paul's Cathedral in London, said: 'I think now that I would have awakened her by kissing those cherries, and then apologized like a gentleman.' The jury heard, and Garden- hire's case was lost.

The Foremost Missourian a Century Ago.

"One biographical historian tells us that David Barton began his brilliant career at old Franklin and was the first judge of the Howard county circuit. Another tells us that he began at St. Louis, and became its first circuit judge. But let these 'boroughs' con- tend for Homer dead, David Barton was great enough to cover all with the mantle of his fame. He was the speaker of the territorial legislature who signed the resolution accept- ing the terms of the state's admission into the Union. He was one of the great factors in substituting for the civil code of laws the common law of Missouri. He was the first United States senator from Missouri, its foremost citizen and lawyer, although the en- cyclopedia makers a quarter of a century ago did not find a place for a name so full of glorious achievements. I stood a short time ago at his grave in the beautiful Walnut Grove cemetery at Boonville. As I beheld the magnificent monuments erected there to men of provincial quality, and then looked at the humble, crumbling stone that marks the rest- ing place of David Barton, the thought came that true greatness needs no imposing mauso- leum to perpetuate its fame.

"Henry S. Geyer for half a century stood in the forefront of lawyers in St. Louis, and represented the state in the United States Senate with distinguished honor.

Bates on Sacred Personal Liberties.

"As I must be brief, without making invidious distinctions, I feel warranted in desig- nating as 'clarum et venerabile nomen,' Edward Bates, who left the imprint of his name written in letters of gold on the archives of the state. He helped it to put aside its terri- torial garb, and stood at its birth as a state. He was a Virginian, the brother-in-law of Hamilton R. Gamble. He was the first attorney general of the state, and first attorney general of the United States under the administration of President Lincoln. His mind was 'a perfect field of cloth and gold.' He possessed a vast wealth of learning. His mental tastes and ambition made him toil in the fundamental principles of the law and the science of government. Early in my professional career, I had an occasion to read a brief from his pen before the supreme court; the thought and philosophy of which ought to be burnt into the public mind, in these days when legislators and ministers at the seat of power, distempered with frenzy, disregard the sacred personal liberties of the citizen. It was the revivication and amplification of Thomas Jefferson's pronouncement in the preamble to the Declaration of American Independence, that 'all men are endowed by their creator with certain inalienable rights, among which are Life, Liberty and the Pursuit of Happi- ness.' With burning words and impassioned earnestness, he maintained that there are per- sonal privileges and rights that depend upon no human statutes or organic acts of govern- ment, but they exist inherent in our manhood, and whenever or wherever government or society undertakes to invade this domain, they make for despotism, no matter what the pretext, whether under the guise of the supposed exigency of government or the frenzied fancy of the sociologist.

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A GRAND OLD MAN OF MISSOURI

John B. Clark, Sr.

"Contemporaneous with the elders of the bar of Central Missouri, was General John B. Clark, Sr., of Fayette. He was my preceptor in the study of law. He was a most noted character, and left a deep and lasting impression upon the history of the state. Before the Civil war he was a member of Congress, and a brigadier general. He was a brigadier general in the Confederate army; and a member of the Confederate Senate-by brevet! And so thoroughly reconstructed did he become early that he tried to get back into Congress, and only consented to retire in favor of that knight chevalier, his son, General John B. Clark, Jr.

"While in his office I became much impressed with his great familiarity with the old text-books. It was his habit, at the end of my week's reading of law, to examine me like a schoolmaster on what I had gone over. No law professor possessed more accurate knowledge of the books than he displayed. He not only had stored in his memory the texts, but he understood the rationale of the rules and principles.

"He was'an imposing figure, tall, erect, strong, with massive head, and an oratorical pose and grace of gesture that designated him as a man of distinctive force. Many stories were told of his crudities and angularities, with, perhaps, sufficient foundation in truth, without so much of exaggeration. He was disposed in writing to follow phonetics rather than correct orthography. But he employed virile English, and on occasion rose to lofty heights of natural eloquence. His lachrymose ducts were always full and ready to over- flow. Like a lie-they were a great help in time of need. I listened to him defend a suit against a widow to impress her dower interest in land with the quality of a mortgage, with an element of fraud in it, whereby he persuaded the court to submit to a jury the hearing. In his appeal to the jury he said a verdict for the plaintiff would send his client, a delicate, refined woman, burdened with the care of helpless children, to the washtub, to scrub and wring. Suiting the action to the word, when he used the word 'wring,' the fountain of his tears was loosed, until he baptized, with immersion, his entire expansive shirt front. Although his client sat as if carved out of granite, he outwept Niobe over her nine dead children. The jury wept with him, and decided for him.

A Never Failing Fountain of Tears.

"The last case, of note, in which he appeared, was at Boonville, in defence of a man indicted for murder. He had the wife of the defendant, dressed in black, surrounded by a bevy of bright-looking young children, inside of the bar, sitting near the husband and father. When he reached the 'homestretch' in his speech, he called up the well-spring of his tears, at sight of which the wife and little ones broke into audible sobs. The pre- siding judge, about whose heart the icicles hung in summer, called to the sheriff to remove the wife and children from the court room. This rebuff would have nonplused the aver- age lawyer, but the veteran of over three-score years on the field of combat lost neither courage nor resource. With a swelling flow of tears streaming down his unwiped cheeks, he said: 'Your Honor, if it pleases you, let the woman be taken out; but, in the name of the Savior of mankind, who, with infinite compassion, said, "suffer little children to come unto me," I beg that these little ones be spared. But the judge was immovable; and as the sheriff led the procession of mother and children from the room, all wailing as at a funeral, the old general turned to the jury and said:

"'Gentlemen, you alone can give this husband and father to wife and children. You cannot call back the dead, but you can save the living. That mother and her little ones have been sent from this room weeping their hearts away, and so overcoming me with emotion that I am unable to continue my speech.'

"A fresh gust of tears ran down his cheeks like rain drops from a weeping willow. The jury wept with him; and gave the 'husband and father' his freedom.

"In grateful remembrance of the affectionate interest he ever manifested in me, I leave him with this sentiment: For every foible in his character there were many great virtues. For every weakness in his nature there was a rampart of strength.

Vol. 1-60

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CENTENNIAL HISTORY OF MISSOURI

"Old Sarcasm."

"Peyton R. Hayden, of Boonville, was one of the most unique characters of the bar. He was closely related to Wash Adams, Sr. Preeminent lawyers, they were usually antage- nists in most important cases; and the War of the Roses went on until they found surcease in the grave. Hayden was deeply versed in the science of law, and most skilled in the fine arts of the profession. In his tongue was the sting of the asp. He was known as 'Old Sarcasm.' In invective he was a terror. He wore his hair in a long queue like a China- man. In speaking he had the habit of flipping with his forefinger his queue into the form of a periphery. Whenever he began to flip it violently it was an unmistakable warning signal that opposing counsel, witness or litigant, was about to get 'a skinning.' And when he turned loose the artillery of his raillery or invective the court room became lurid, and woe to him who caught its fire!

"Illustrative of his resourcefulness was the tact he took in defending an action for slander. While the defendant was possessed of considerable property, his reputation was unsavory. When the plaintiff closed his evidence, Hayden had sworn a number of 'char- acter witnesses.' Counsel for the plaintiff, not divining Hayden's design, interposed no objection to his introducing evidence in support of the defendant's character before it was assailed, knowing that it was bad. Each of those witnesses testified that the defendant's reputation for truth and veracity was bad; and under leading questions further said they would not believe anything he said. In his best vein of humor and abuse, Hayden argued to the jury that his client was such a notorious liar that nobody believed anything he said, no man's character could be affected by what he had directly or indirectly said of him ;. that far from mulcting the defendant as a public example the plaintiff should be regarded a a bad citizen, eaten up with greed and selfishness; that inspired by no higher motive than an itching desire to transfer to his pockets a few dollars earned by the defendant in hoeing corn, and marketing cabbage and potatoes, he had compelled the jury to leave their farms in seeding time, and attend court to listen to the rehearsal of some ordinary lie about him, which nobody believed. Giving his queue a final swish, he said: 'A character that is so sleazy a tongue like the defendant's can make a rent in it can be patched up better than it was with a two-bit plaster.' The jury evidently took this view, as they awarded the plaintiff only nominal damages. When Hayden asked for his fee his client threatened to whip him because of the peculiar defence made for him!

Two Opinions from the Bar.

"Mr. Hayden was a magnet around whom the younger members of the bar gathered to listen to his rare witticisms and raillery. Illustrative of how some lawyers' estimation of the judge is affected, Hayden had argued an important demurrer before Judge Russell Hicks, the presiding judge. In an oral opinion, delivered with characteristic clearness and force, Hayden was sustained. Turning to his satellites, he said: 'There sits a great judge, with a large head full of knowledge of the law. How lucid his mind and elegant his language.' In a day or two thereafter he argued some other question of law before the same judge, which was promptly ruled against him. Turning to the same circle of 'young hopefuls,' he flipped his queue and said: 'Just listen to that. I take back what I said of that ass on the bench the other day. He is disgustingly ignorant. Why, he don't even know grammar.'

The Cold Blooded Lawyer.

"When I was in the chrysalis period, I had foreclosed a mortgage on a valuable tract of land; and after sale and deed made to my client, I discovered to my amazement that the land throughout the proceedings had been misdescribed. In my perplexity and distress I went to a venerable-looking, white-haired lawyer, in attendance upon the court, for advice as to how I might rectify the blunder. He coldly said to me: 'Have your client employ me, and I think I can straighten out the tangle.' With contempt burning in my breast, I told him that my client resided in Kentucky, so it would be impossible to communicate with him during the present term of court, and I had the notion that now was the time to

THE STATUE OF ST. LOUIS Presented to the City of St. Louis by the Louisiana Purchase Exposition

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A GRAND OLD MAN OF MISSOURI

act; besides, I did not wish my client to know of my misadventure, and the necessity of going to another lawyer for assistance. The only answer I received were the pompous words: 'My knowledge of the law is for sale, and not to give away.' I did not let the iron enter my soul. But the bitter experience did- two things for me of inestimable value. During all of my subsequent professional life no brother lawyer ever came to me, in trouble, for the helping hand, and went away empty-handed, if I could fill it. And, second, left to self-reliance, I burned the midnight oil in searching all the relevant books accessible to me, determined that I would verify the motto of the pickaxe on the dial: 'I'll find a way or make one.' With 'fear and trembling' I worked out the problem, saved my client's interest, and protected what little reputation I had as a young lawyer! I would have let this incident sleep in forgetfulness, but for the useful lesson it teaches.

"Four judges retired from the supreme bench during the periods of which I speak : Abiel Leonard, John F. Ryland, William B. Napton, and Wash. Adams, Sr., all of whom resumed the practice of law, and were encountered by me at the bar, except Judge Leonard.

Judge John F. Ryland's Classics.

"Judge John F. Ryland was a lawyer of varied attainments. He was profoundly learned in the law and a good classical scholar. From which, I take it, came his fancy for the civil law, which led him to the especial study of equity jurisprudence, in the application of which he became noted on the bench; and when he resumed practice of the law he sought to turn cases technically at law to the equity side of the docket. I witnessed a trial, in the early sixties, to a jury wherein Ryland was opposed by George G. Vest. The vendor of a farm sued on the contract for the purchase money. Among the defences in- terposed by Judge Ryland was that between the date of sale and time for delivery the vendor had suffered his cattle to run upon the orchard of young fruit trees, which were promising and valuable. With those cattle was a young bull, in 'the horny season.' In his training for future encounters with his kind he had practiced on the tender apple trees, wrenching their limbs, stripping from them the bark, and pawing up the earth about the roots as if a cyclone had passed that way. Judge Ryland's mind, ever revelling in the classics, led him to liken the situation to that of a connoisseur of art who bargained for one of Raphael's paintings, and before delivery the vendor had suffered it to be marred and disfigured by some vandal hand. The purchaser, of course, would not be required to take or pay for it. From the vast storehouse of his reading the judge drew a vivid portraiture of Raphael's genius as an artist, which culminated in the production of the celebrated 'Madonna and Child'; that no limner could reproduce his immutable colors, or give birth to his conceptions.

Vest's Translation of Latin.

"In his reply Vest dissipated, with ridicule, the effect of the judge's display of learning. He assailed his illustration for lack of analogy; that like noble Festus the judge's learning had made him mad; he had, in fact, offended the memory of Raphael, by likening his work of art to an apple orchard, with a bull calf running rampant over it, twisting apple trees by whetting his horns on them. While it might be true that no living artist could put to canvas the images born of the genius of Raphael, any horticulturist could furnish like apple sprouts by wagon-loads at two and a half dollars a dozen, and any clodhopper, with a spade, could plant them out in a day or two; and the good Lord would send His rain and sunshine to make them perform the sacred mystery of reproductive growth. He then asserted that no farmer ought to be expected to provide an impound strong and high enough to restrain a young bull in the horning season. He reached his climax by saying : 'There is another Latin maxim my learned brother, Ryland, seems to have overlooked, quite applicable to this case. It is Damnum absque injuria, which being rendered into plain, western vernacular means-little injury.' The jury accepted the rendition of the maxim! Judge Ryland himself wielded a dangerous lance in a wordy encounter. I heard him in court worst Judge Hicks in a tilt at ridicule and satire.

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CENTENNIAL HISTORY OF MISSOURI

William B. Napton's Research.

"In many important respects, in my humble judgment, William B. Napton was one of the ablest jurists that ever adorned the supreme bench of this state. The valedictorian of his class, in the University of Virginia, he maintained ever his high academic standards. He wrote pure English, and expressed his ideas in most concise terms, without superfluity or circumlocution. His contributions to the law pertaining to real property and equity jurisprudence established monumental marks. When he retired from the bench, at the outbreak of the Civil war, from necessity and love of his profession, he resumed the practice of law. He was not a great advocate, as his mind was logical and theoretical. He wielded power, however, before bench and jury, because of his recognized learning and intense honesty.

"I listened to him once on the trial of an important case. His argument to the court, touching some complex questions of law and fact, was superb, although he lost. When he began the preparation of the case for review in the supreme court he was a novice. He came to me, and requested assistance in the preparation of the bill of exceptions and proper motions. I discovered that he had overlooked the necessity of saving exceptions in the progress of the trial to certain matters of evidence he desired to have reviewed. But I had the bill of exceptions to show that they were duly preserved, after obtaining consent of opposing counsel.

"How much more to be desired are the offices of friendship than silver and gold! I accepted no compensation for my services to Judge Napton; but received my reward in his unaffected friendship to the close of his great life. He was again returned to the su- preme bench. One day I was busily engaged in the old library of the supreme court in the preparation of a brief. Late in the afternoon Judge Napton briskly stepped out of an alcove. I said to him: 'Why, judge, I did not know you were in this room.' With the characteristic jerk of his vest, he said: 'Yes, I have been reading opinions trying to find out what some judges meant, until I am almost distraught. I am now going to walk out over these capitol grounds and commune with nature to ascertain, at least to my own satisfaction, what the law of the given case ought to be.' I have often thought that the suggestion was full of meat.

The Rail Splitter.

"Russell Hicks was one of the most striking personalities of the bar of Central Mis- souri. He was a native of New York. Of his antecedents or family connections very little could be learned, even by his closest associates. He was called 'the rail splitter,' be- cause of the story that the first money he earned after coming west was for making rails for a farmer. He began the practice of law in Jackson county, where he owned a splendid farm. He was passionately fond of fine horses, especially racers, and maintained on his farm a race track for their training, more for his own amusement than profit. I heard him say, with a deep sigh, that 'Farmer Hicks kept Lawyer Hicks a poor man.' At the outbreak of the Civil war his farm was raided by a band of marauders, known as 'Red- legs,' from Kansas, who carried off his horses and negroes. This so outraged him that to the day of his death he bore an implacable dislike to everything and almost everybody that had been connected with the cause of the Union.

"He was a man of powerful frame, large-headed, piercing black eyes, and a strong challenging voice. His manner was brusque, and he took pride in being aloof. But be- neath the rough exterior I discovered a heart not void of sympathy or sentiment. He was endowed with great intellectual force. As early as 1855 he stood at the forefront of the bar of Jackson county, and his fame spread out beyond its borders. . He attracted wide- spread attention as one of the leading counsel for the defendant in the celebrated slander suit of James H. Birch against Thomas H. Benton, tried at Clinton, Henry county, on change of venue. It brought around the trial table the most distinguished array of lawyers in Western and Central Missouri. The refusal of the court to give certain instructions as drawn by Judge Hicks constituted reversible error, as held by the supreme court. The fierce invective of his speech in that case was as blistering to the pride of Judge Birch as the vitriol of Benton's tongue.

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Centennial history of Missouri (the center state) one hundred years in the Union, 1820-1921, Volume I, Part 104

Author: Stevens, Walter Barlow, 1848-1939 Publication date: 1921 Publisher: St. Louis, Chicago, The S. J. Clarke publishing company Number of Pages: 1074

Author: Stevens, Walter Barlow, 1848-1939
Publication date: 1921
Publisher: St. Louis, Chicago, The S. J. Clarke publishing company
Number of Pages: 1074