USA > Missouri > Centennial history of Missouri (the center state) one hundred years in the Union, 1820-1921, Volume I > Part 105
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A GRAND OLD MAN OF MISSOURI
Upholder of Court Dignity.
"He appeared upon the circuit bench in 1856. His very presence was a command for order. He broke up the vulgar habits of habitues about the court room. The man with hat on and coat off was summoned before him, and the badinage and bantering of counsel around the trial table were objurgated. His rulings were prompt and final. He believed in the majesty of the law, and respect for its ministers.
"When he went to Marshall, Saline county, to hold court, a negro, under indictment for murder, was forcibly taken from the custody of the sheriff, and hanged by a mob. This so incensed the judge that he refused to hold court in a community where such law- lessness he misconceived to be applauded, and adjourned court, without day, and sent his resignation to the governor, and never again sought office.
"At the close of the Civil war I found him in St. Louis, moneyless, seeking to estab- lish business in his profession. I invited him to come to Sedalia, and join me, as I was flush with clients. Of that offer he said to a mutual friend that he had felt he could never get his consent to be associated even in a partnership relation with a man who had fought in the Union army; but as it was a case of bread with him, he 'would try Philips.' George Vest had lost his civil rights in the state by trying to find them in the territories; and his steamboat had sunk on the Red river, taking with it to the bottom his iron safe, which proved on resurrection to contain only bills payable for supplies of 'licker' for the craft. He had joined his family in Kentucky, from whom he had been separated for nearly four years. I wrote to him, inviting him to return to Missouri, and join me in the practice of law. He came, and the firm of 'Philips, Hicks & Vest' was formed. It lasted until the latter part of 1869, when two incidents, in quick succession, occurred that ended the firm, after the fashion of a staged histrionic play ending in a comical farce.
A Partnership Suddenly Dissolved.
"One mellow autumn day an oleaginous negro woman, black enough for an idol 'in darkest Africa,' stopped at our office and inquired where she could find the agent of the Freedmen's Bureau! Knowing Judge Hicks' extreme aversion to that institution, we could not resist the temptation for what promised to be rare fun. We informed her that the agent was in his office, out in the yard back of our offices; and Vest manifested so much interest in her behalf as to go with her to the back door and point out the judge's office door, saying to her: 'Walk right in without knocking, and announce your business. The agent is an ugly, crabbed old fellow, and he will likely storm at you; but stand your ground, and demand of him what you want; the government is paying him to look after the inter- ests of just such colored persons as you.' We were listening. She had no more than entered there until the uproar came. Like a porpoise, half waddling and rolling, she tumbled into our office, almost before we could resume seats at our desks, with the judge in hot pursuit, flourishing a big iron poker, and out-swearing all the soldiers in Flanders. He chased her out onto the sidewalk. Returning through our office, he paused only long enough to catch his breath, and glowering at us viciously, said: 'You be d-d. Thersites deriding Achilles.' From the debris and surrounding circumstances, discovered the follow- ing morning, we drew the following inferences : He had swallowed something to soothe his outraged feelings, and taking off his ambrosial wig, and placing it, as usual, on the round top bed post, with his clothes on he dropped onto his bed and fell into a restless dream. Under normal conditions he was ever apprehensive of burglars. The moon streaming through the window fell full upon that wig-crowned bed post. From a maudlin dream the judge sufficiently awoke to discern in that bed post a veritable burglar right at the foot of his bed. Quietly slipping from the further side of the bed he laid hold of the ever-ready large iron poker, and with one fell swoop he split into splinters the top of the bed post, and scattered the hair of that well-groomed wig over the floor. Fully con- vinced that he had brained a burglar, hatless, he hurried from the homicidal scene, and took refuge in a hotel. He did not appear for about three days at his office. Evidently he had been busy in procuring from Kansas City, or St. Louis, a new wig, inferably by short telegram, as it was off-color, so noticeable that neither Vest nor myself could look at it
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without a suggestion of the catastrophe that befell its predecessor. The situation for a while was tense and embarrassing, between the judge's stolid reserve and the suppressed mirth of Vest and myself. For business reasons the judge concluded to take a change of venue, to Warrensburg, where he entered the law office of one of the best law firms there; and there he died.
Lover of the Poets.
"Singularly enough this ascetic man was passionately fond of poetry. He knew Shakespeare, Byron, Burns, Scott and Longfellow as a schoolboy . knows his primer. Blessed with a marvelous retentive memory, he would recite page upon page from the choicest parts. With his own pen he often invoked the muses. I found one day upon his table a poem, written in his legible hand, dedicated to 'My Mary.' It was so exquisite in sentiment and so touching in its pathos as to persuade me that this Mary had been of real flesh and blood, and that in the long ago she had taken possession of his heart, and con- tinued to occupy it. He never married. I would if I could embalm his memory,
""'Storied of old in high, immortal verse.'
Law Along the Osage.
"While the Osage river was regarded as the boundary line on the south of Central Missouri, from the south side often came leading lawyers to the courts along the dividing border. Among the most conspicuous was John S. Phelps from Springfield. His wider fame was achieved as a politician. He served many terms in Congress, where he became a recognized leader as the head of the committee on ways and means. He was military governor of Arkansas at the close of the Civil war; and then governor of Missouri. . Yet, he was one of the best equipped lawyers, for an all 'round battle in court, I ever met on the Osage. He was imposing in stature, suave in manner, fearless in demeanor, and pos- sessed deep insight into the springs of human action. Untiring in energy, he kept abreast of the progress of the law.
"In the flush times of litigation, just after the close of the Civil war, the Warsaw circuit court was a battleground. The presiding judge was Judge Burr Emmerson, whose like we shall never see again. At some time or other he had read the leading text-books of his day; and with a wonderful faculty for assimilation he readily appropriated them for use, and never bothered himself about technical rules. He was equally indifferent about rules of decorum. His court room, in those raucous days, was a 'free-for-all' gladitorial arena. The only time I ever knew him to interfere from the bench in an inside-bar fisticuff, was when one of the combatants made a motion as if to draw a knife; whereat the judge, as if an umpire, loudly called out : 'Fair fight, fair fight, I say; if you go to cuttin' I'll fine you sure.' At one time when reversed by the supreme court, he took an especial pride in showing the opinion to lawyers at the bar, wherein the language (usually quite perfunctory), occurred : 'The learned judge inadvertently fell into error.' He said: 'This shows that the supreme court regards me as a learned judge. But, like all men, I am liable to an ac- cident through mere inadvertence.' Then, to further square himself with the bystanders, he said: 'Those fellows down at Jefferson City are on to their job. If they should affirm all the rulings of the circuit courts the people would conclude that there is no cause for their existence and would abolish them; and, therefore, they must reverse us occasionally to make a showing of necessity for their continuance.'
The Legislature Circumvented.
"The state legislature attempted to eliminate him as judge by cutting down his circuit to one county (Benton), in which he did not live. But he circumvented their design. On receiving news that the bill had passed both houses, he mounted his horse, and rode through at night from Bolivar, his home, to Warsaw, the county seat of Benton; and sent a message to the governor, before the bill was approved, that he had changed his residence from Polk to Benton county. The first time I saw him after this coup d' etat, I said to him: 'Judge,
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A GRAND OLD MAN OF MISSOURI
you have not so much work to do now.' He quickly replied: 'Yes, less work, but the same pay, and as to the honor, de minimis lex non curat !'
The Case of Nunc Pro Tunc.
"I brought an action in ejectment for the recovery of the homestead of a man who had gone off into the Confederate army. In his absence the defendant had attached his land, for debt, and had it sold. I attacked the sale on the ground that for lack of con- formity to the statute the judgment was void. John S. Phelps appeared for the defendant. In the progress of the trial, (to the court, without jury,) Phelps offered in evidence a certain paper among the files of the attachment proceedings, to which I objected for non- conformity to statutory requirements. To cure the obvious defect, Phelps presented a mo- tion for an entry nunc pro tunc; supporting it by a lengthy argument, advancing the ordi- nary rule that permits the court to amend its own records in aid of what the court had in fact ordered theretofore. This I met with the suggestion of the other rule, that while the court might at a subsequent term amend the record to conform to the fact, there must be some memorandum of record in the case made at the time, from which the amend- ment might be made; and there was no such memorandum in the case. Phelps persisted, explaining to the judge the meaning of the words nunc pro tunc, when the judge inter- jected : 'Yes, governor, I see your nunc, but where is your tunc'? This shot staggered the governor, and I felt sure I had won. But when court took a recess for dinner, the judge came up to me, and giving his usual familiar tap, by stabbing my side with a very stiff thumb, said: 'Philips, your argument is mighty nigh ungitoverable; but if you are right, I don't own the house I live in, as I bought it at just such a sale.' And so it was that I was compelled to take the case to the supreme court to obtain my client's land. (Duros- sett's, Admr., vs. Hale, 38 Mo. 346.) The refusal of the judge to allow the entry nunc pro tunc was not considered by the supreme court, as non constat, the judgment below was for the defendant.
Waldo P. Johnson and His Clients.
."Waldo P. Johnson was another conspicuous lawyer of the Osage district. He was an antebellum circuit judge; a United States senator when the Civil war began, from which .he resigned, to identify himself with the Confederacy. He became a member of the Confederate senate, by the action of a peripatetic rump legislature, which sat, down in Arkansas, as the fortunes of war permitted. Johnson was an 'irreconcilable.' He refused to apply for the removal of his disabilities, so he could practice law. But he did business sub rosa. Frequently I tried for him in court cases in which he was 'the real party in interest,' as counsel. In 1875 he was a member of the convention that framed the present state constitution, and presided over its deliberations with signal ability and impartiality. He was an astute lawyer, well posted, and had a keen analytical mind. He was a philosopher, and a very wise man. The late General B. G. Boone, of Clinton, Missouri, told of an interview he chanced to overhear between Johnson and his client. It was another slander suit indigenous to the local soil. As Johnson was one of the counsel in the famed slander suit of Birch vs. Benton, he had learned, from the decision of the supreme court, the great importance of the proof sustaining the actionable words as laid in the petition. So he had his client backed up against the outer wall of the court house, drilling him by reading to him the petition. When he came to the actionable words of the petition, he halted. and fixing his deep-set eyes, beneath shaggy brows, upon the client, said: 'Now, mark the language.' Slowly spelling out the words, he asked him if he understood them. The fellow with a vacant stare, asked: 'Who is that fellow called defendant, in that writin'?' Johnson fairly hissed through his teeth: 'He is the other fool to this lawsuit, the fellow you claim slandered you; now tell me what he said.' With a scared look, the client said : 'I almost fergit.' Johnson's voice, rising to a full falsetto, exclaimed : 'You are a veritable Midas' ass who lost his wit but kept his ears. I don't believe anybody ever did or could slander you.'
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"Duke" Draffen.
"James W. Draffen, of Boonville, who went by the sobriquet of 'Duke,' because of his middle name-Wellington-and his iron will, was a conspicuous star in the constellation of lawyers named. The attributes that make up the lawyer and gentleman were com- pressed into his character. In honor, courage and fidelity he had no superior. He was not what the world calls a brilliant man; nor did he possess the graces of oratory. His mind worked rather along the lines of studied premise and assured conclusion. He would wear the night out searching the books to satisfy himself as to the law. He would resist being forced into trial, until, to his own satisfaction, he had mastered the facts and ap- plicable law. The effect of which was that his opponent could not depend upon taking him by surprise, or finding any vulnerable part of his armor he had not tried to strengthen. His discrimination was fine, which enabled him to escape the pitfall into which so many lawyers stumble, by predicating their case on some apparently applicable statement found in a judicial opinion, without discovering that it was predicated on a state of acts that entirely differentiated the two cases.
"Level-headed as he was, he would become obsessed with the notion that his case was undeniably just, and his client was always honest. He would have made an invincible general on the battlefield, as he never knew when he was whipped, and never admitted defeat. Staid in judgment, and stable in conviction, no blandishment could swerve him, no flattery cajole him, and no ignis fatuus could deceive him. No sudden discomfiture could disconcert or discourage him. He fought the harder when thought to be 'down and out.'
"On one occasion the character of his client, the defendant, was impeached. Turning to his client, after a whispered conversation, he called out, with battle in his voice : 'Mr. John Robinson, come inside the bar and take the witness stand.' John Robinson being sworn, the following questions and answers ensued :
"'Mr. Robinson, you are a farmer and an old citizen of this county?'
" 'Yes sir.'
"'How long have you known the defendant?'
"'Perhaps for twenty years.'
"'You and he are near neighbors?'
" 'Yes sir.'
"'Are you well acquainted with his general reputation in the community where he lives for truth and honesty?'
"I think I am.'
"'Is that reputation good or bad?'
"'It is bad.'
"With face unblanched, and rebuke in his tone, Draffen said: 'Is that, sir, all you know about this case? If it is you can stand aside.' As the lion shakes his mane when, angered, he flashed his eyes around the bar, a command not to 'titter.' The only effect upon him was to cause him to pull his visor down and more firmly set his lance for the onset.
"He was a patron of the farm, and a lover of the forests. There was no music so sweet to his ears as the songs of the wild birds; and nothing so exhilarated his spirits as the sound of the hunter's horn, and the deep-toned outcry of the pack in hot pursuit of fox and deer. And, although he was handicapped with a disabled limb, no bold rider took the leap over fence, hedge and ditch more daringly than he, or beat him getting in at 'the death.'
Vest's Defense of Squire Cross.
"No group of the luminaries of the bar of Central Missouri would be complete with- out a picture of George G. Vest. He was a man of small stature, with neck deeply set in stooping shoulders, head large and well formed, hair tinged with gold that relieved it from being regarded as red, with large searching blue eyes, and a tenor voice, in its prime musical and vibrant. He was many sided, full of sharp angles, without being jagged.
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He had the wizard's tongue and the artist's imagination. His resourcefulness, and keen appreciation of the ludicrous, were manifested at the outset of his appearance at the bar in Missouri. He preceded me at Georgetown, the county seat of Pettis county. There lived in the village a human curio-a living cadaver, named Cross. So like a dead man was he that one day when teamsters were passing through the main street of the village with wagons laden with coffins of the dead, being removed to another burying ground, one of the teamsters in the rear of the gruesome procession cried out to the one in front, that he had dropped one of his skeletons, which turned out to be old Squire Cross sitting on the curbing looking on!
"Cross was a continuous justice of the peace. He could not be beaten for the office, no matter what the changes in parties. He said that parties could not change faster or oftener than he could change his politics. One of his rare accomplishments was that of an adept in the game of poker. The grand jury, about the time of Vest's arrival in the village, indicted the 'squire for 'gaming.' He employed Vest to defend him, paying him a fee of $20, the amount of his winnings at the last 'sitting.' When the term of court was about to convene at which the case was to be tried, there was in progress in the village a religious revival. It occurred to the fertile mind of the 'squire that it might be a coup d' etat if he were 'to get religion.' Accordingly on Sunday, just before the convening of court, he 'joined,' and was baptized publicly in Cedar creek. After muddying the waters, as much as possible, about the evidence identifying the 'squire with the particular game, Vest slipped, outside of the evidence, information to the jury of the 'squire's conversion, as remarkable almost as that of Saul of Tarsus while journeying between Jerusalem and Damascus, breathing out curses against the Christians; and pleaded with the jury as the 'squire's sins had been washed away in Cedar creek, and the good Lord had bade him go and sin no more, they ought to imitate the Master's example; with the result that the jury returned something like a Scotch verdict-guilty, but not proven.
"That evening, in celebration of his acquittal, the 'squire invited a select few, among them Vest, to come around to the rear room of his judicial chambers. The result of the celebration was that the 'squire won back from Vest the $20 he had paid him for a fee. From which early experience Vest drew the moral that there is an utter incompatibility between the game of poker and the practice of law, as the earning of the day's 'session' is apt to be lost in the night's 'sitting.'
Vest's Strong Qualities at the Bar.
"Vest was not, in technical knowledge of the law, equal to some of his contemporaries at the bar of Missouri. But as an advocate before juries, and in the fence and foil of debate before the bench, he had no superior. If genius be the faculty of appreciation, and the power to seize the emergent opportunity, he had it in fullness. He possessed the singular quality, akin to fascination, of making attached friends of men, without apology or sycophancy, whom he had mercilessly excoriated on the hustings and in the court room. He was a prince among gentlemen, and a hale fellow well met among parvenues. He had an inexhaustible repertory of apt anecdotes, garnered and coined, which were skillfully employed on occasion to fasten attention and rivet an argument. He had a way of presenting commonplace matters of fact and law positively attractive. The attention of jury and court never fagged while he held the floor. Rarely did he lose a case before a jury when he had a foot of solid ground on which to stand. Chief among his mental qualities was his brevity, and the command of the exact phraseology to express his thoughts. Whatever he wrote or spoke was terse and sententious. He was strikingly free from tautology and repetition. The syllogism was complete, the rhetoric finished. He seldom spoke over an hour to a jury; and I never heard him before the higher courts ask for an extension of time. He affected no mannerism in his delivery. He followed no pattern, and imitated no model: He was natural in manner, and original in matter. Energetic in action, and at times vehement, he never 'tore passion into tatters,' or played the part of the low comedian. His was the power of magnetism. His pleadings, instruc- tions and briefs were models of conciseness and perspicuity. His diction was quite nigh faultless, and his style of composition and speaking was free from floridity or vapid
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declamation. His vitriolic sarcasm and flashing repartee made it dangerous for any com- batant to engage him in fierce encounter. But he never made the unknightly thrust, or played the dastard's role.
Vest's Humor.
"A rich vein of humor ran through his mind like a fast-flowing, sparkling brook, that at times overflowed the adversaries' barricade of facts. In the celebrated trial of Colonel Warner, of Lexington, Missouri, for killing his son-in-law, Nutter, Colonel Tilton Davis, an astute lawyer, prosecuting as private counsel on behalf of the state, severely criticised Mrs. Nutter, the daughter of the defendant and widow of Nutter, who had testified for her father, that on an almost starless night, at a distance, perhaps, of seventy-five yards, she had seen Nutter skulking among the trees near Warner's house, as if lying in wait, and although she could not distinguish his features, she recognized him by his walk. In his reply Vest said that Mrs. Nutter was a Kentuckian, who can tell a man by his move- ments as a horse by his gait; that his own wife, who is a Kentuckian, could not only tell his footfalls as he approached the home, after being out late at night, 'but she can some- times tell from my walk where I have been.'
"His speech to the jury in that case, in brilliancy, invective, and electrifying power, in my humble judgment, was not surpassed by that of Sargent S. Prentiss in defence of Dr. Wilkerson and others, at Harrodsburg, Kentucky, in 1839, which so thrilled his audience, and has delighted multitudes whose fortune it has been to read it. But as there was not present any shorthand reporter to catch its lightning flashes, nor any Carlton, as there was for Prentiss, to write out in longhand the burning words and breathing thoughts of Vest's speech, it lives only in tradition; alas for posterity, the keepers of its memory will soon pass under the silent shadows.
"I heard him, on a sudden in briefest speech, discuss before a trial judge the correct application and proper limitation of the rule respecting evidence as a part of the res gestae. In conciseness, comprehension, and practical sense no writer or jurist has ever approached it. The essence of his postulate was that the admissibility of the statement made subsequent to the act sought to be explained or qualified depends upon the con- tinuity of the act and the statement rather than upon their mere proximity in point of time.
"I cannot let this opportunity to pass to correct a false impression, among some, that Vest was not a toiler in the deep mines of legal lore. He had for his guide and mentor, in the Transylvania Law School, that greatest of Kentucky jurists, Chief Justice Robinson, who regarded him as one of his star students, even though rivalled by John Marshall Harlan, who became such a distinguished justice of the United States Supreme Court. Because of the fact that Vest caught as by intuition what others reached, if at all, by the slower process of induction, it was surmised that he was rather superficial in technical learning. Like the skilled mineralogist, who can discern and approximately measure the rich ore in place without delving for it as the common miner, or the connoisseur of the fine arts, who can tell what a painting is almost by a glance of his practiced eye, Vest, by running his eyes rapidly over the pages of the text, or opinion, could catch their essence without stopping to con them over and again; and then with his facility of language present it in most attractive form to the court. By the same force of specific intellectual ascension that lifted him to the front rank of debaters and practical statesmen in the United States Senate, he became a lawyer to be reckoned with by the best in the lists of the legal profession.
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