Centennial history of Missouri (the center state) one hundred years in the Union, 1820-1921, Volume I, Part 26

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 26

Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).

At the November election the proposed amendment was carried by 76,622 majority, thus insuring submission to vote in August, 1921, of the question, "Shall there be a convention to revise and amend the constitution ?"

COURTHOUSE, ST. LOUIS, IN 1840

The old Planters' House on the right, finest hotel west of the Mississippi before the Civil War. Slave auctions took place at the front of the courthouse.

THE ST. LOUIS COURTHOUSE AT ITS BEST, ABOUT 1870

CHAPTER VII

LAW AND LAWYERS

The Golden Thread of Civilisation's Fabric-Hempstead's Advice to His Brother-When Bench Split and Jury Hung-The Peck Impeachment Trial-Ethics in the Thirties- Judge Carr's Public Spirit-Court Days in Saline-Sheriff Bill Job's Sense of Humor- The Missouri Echo of a Royal Scandal-Public Morals from the Bench-The Chariton County Calf Case-Journalism, Law and Medicine-New Madrid Titles-Mullanphy on Court Proprieties-The Story That Beat Uriel Wright's Oratory-Torrey on the Evolution of the Judicial System-Missouri's Odd Cases-Judge Barclay's Remi- niscences -- Thomas T. Gantt's Learning-Groundhog Day-From Printer to Supreme Court Bench-Tompkins' Plain Speech-Court Days in Newton-Lamm on the Law's Delays-When Vest Found a Needed Friend-Writers of Law Books-The Dred Scott Judge Who Was Right-Lawyers of the Platte Country-Four Governors from the Bar-Missouri Lawyers Abroad-Pike County Cases-Missouri's Legal Classics-How Femme Sole Gained Her Rights-Judge, Witness and Counsel in One-Burckhartt's Solomonic Decision-Jackson County's Bar and Bench-When a King Brought Suit- Early Laxity on Admission-Krekel's Definition of Law-Missouri and the United States Supreme Court-Missouri in the American Bar Association.

But we do not see the work of the lawyer. On Monday morning, when the American Bar Association was in session in this hall, a lady came to one of the entrances and asked the guide, "What is in there?" The reply was, "The American Bar Association is in session." "Is there anything to see?" "Not a thing," was the reply. Evidently the guide forgot my friend, Mr. Hagerman, and the other distinguished gentlemen who were on exhibition on this platform. The incident, though amusing, suggests a thought worth con- sidering. The work of the lawyer is not visible. We see all the mighty things that Westinghouse and Bell and other discoverers and inventors have placed before us, and which are so useful in our lives, but we do not see the thought of the lawyer which fashioned into shape the legislation that secured to them com- pensation for their contributions to our twentieth century civilization. At this exposition you can see twenty acres of Philippine life, but you do not see a square rod of the Constitution. And yet in the presence of this marvelous appeal of material things, I affirm that the work of the lawyer and jurist, invisible as it may be to the physical eye, is of far greater value to humanity, for of what avail would be all the achievements of science if life, liberty and property were not made sacred by the just administration of law? The fabric of our civilization is indeed a thing of beauty, but it is made strong and enduring cnly by the golden thread of equal, exact, and universal justice .- Mr. Justice David J. Brewer, of the Supreme Court of the United States, as president, opening the Universal Congress of Lawyers and Jurists at the World's Fair, St. Louis, 1904.

The advice of Edward Hempstead, who began the practice of law in St. Louis in 1805 to a younger brother was this :

"Fall not into the habit many have of drinking. Be free and sociable with your equals in age and standing, but be circumspect with those older than yourself. Be careful in avoiding a misunderstanding with any man. If, however, it cannot be prevented, when you are right, stick to it to the end.

"Touching your profession, close and constant study and reflection are now very necessary, more especially, as you will have to contend with gentlemen of long standing and of high reputation at the bar. Trust more to books for forms and to memory for principles. Let all your declarations and pleadings be taken from established precedents. Encourage no one to commence a suit when he is wrong, nor where he cannot succeed.^

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CENTENNIAL HISTORY OF MISSOURI

Edward Hempstead and Thomas H. Benton were close friends. Benton, in a conversation with Elihu B. Washburne at Washington in 1856, said :

"Missouri met an irreparable loss when Edward Hempstead died. No man could have stood higher in public or private estimation, and had he lived he would have received every honor that the state could bestow, and would certainly have been the first United States senator. He lost his life in serving a friend, Mr. Scott. I was with him the night of his death."

When Bench and Jury Split.

Henry M. Brackenridge told of a Missouri court decision rendered by terri- torial judges not long ago before statehood. The third judge was absent from the bench that day. No jury was required. The case was elaborately presented, and exhaustively argued. The judges retired for consultation. When they came back there was an embarrassing pause. The counsel looked expectantly toward the bench. The judges bent over the papers. At length one of them said: "We are prepared to announce the finding of the court. We've split."

When John F. Darby was a young lawyer he had a case before Justice Patrick -

Walsh. The court was on Olive street near Main. John Newman was the op- posing counsel. Constable Dan Busby went out to get a jury. He reported that everybody he asked refused to come. In those days the constable could not com- pel attendance. The lawyers offered to waive the jury. Old Judge Walsh said the record called for a jury; he wouldn't try the case otherwise. Constable Busby said he had seen "Big Bob" Moore on the corner ; he thought he could get "Big Bob" to serve. The trouble with the rest of the people was they wanted to see the St. Louis Grays, a parade having been announced for that day. The lawyers agreed to go ahead with one man for the jury if "Big Bob" Moore would serve. "Big Bob" was willing. The case was tried and submitted. As the justice had only one room the court, counsel and witnesses went out on the sidewalk to let "Big Bob" make up the verdict. Time slipped by with no call from the lone juryman. Constable Busby opened the door and asked Moore if he had agreed on a verdict. "Not exactly," replied "Big Bob." The delay ceased to be humorous. The justice led the way back into the room and reopened court. Mr. Moore was called on to explain.

"Squire," he said seriously, "the jury is hung. When I look at one side of the case I think I ought to give it that way; but when I come to look at the evidence on the other side, I see I cannot give the verdict for that side, and so the jury is hung, for I cannot make up a verdict."

"Big Bob" was discharged and the case was continued.

Some Early Judges.

By nativity, by education, by previous practice at the bar, the circuit judges / of St. Louis were widely representative. They brought to the bench tempera- ment, knowledge and experience of great range. These judges have been as cosmopolitan as the legal profession of St. Louis. The first occupant of the cir- cuit bench was a North Carolinian; the second was a Virginian and the third was a Kentuckian. After Barton and Tucker came Alexander Gray, who was a

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captain in the Twenty-fourth Infantry during the War of 1812, before he en- tered upon the practice of law in St. Louis. The fourth circuit judge was a Vir- ginian, Alexander Stuart. After he retired from active practice he lived on a farm near Bellefontaine. It was quite the custom for judges and lawyers in the earlier history of St. Louis to resort to country life for recreation.

The bar of St. Louis early came into national prominence through an impeach- ment trial. Luke E. Lawless, a Dublin University man, who had served in the British Navy and who had been a colonel in Napoleon's army came to St. Louis to practice law in 1826. Mr. Lawless felt prompted to publish a criticism of a federal judge, James H. Peck. The judge declared Lawless guilty of contempt of court, sent him to jail for a day and a night, and suspended him from practice for eighteen months. When Congress met in December, John Scott, the member from Missouri, presented a memorial from Lawless, charging Judge Peck with tyranny, oppression and usurpation of power. Articles of impeachment were reported by the House, and the Senate tried the judge. Lawless prepared the pleadings. Half of the lawyers in St. Louis went to Washington to give testi- mony. The trial lasted six weeks. The judge was acquitted. Precedents as to the powers of the United States courts to punish contempt were established. The vote of the Senate was 21 for conviction and 22 for acquittal. One of the managers on the part of the House was James Buchanan, afterwards President. The argument of William Wirt is said to have saved Peck.

Luke E. Lawless had a variety of sensational experiences in his profes- sional career. On one occasion he challenged the right of Judge J. B. C. Lucas to appear in court on the ground that he was not a licensed member of the bar. Lucas had admitted Lawless to practice some time previously when he was a member of the court appointed from Washington. To Lawless' objection Judge Lucas replied : "If the court please, I am licensed. I am licensed by the God of heaven. He has given me a head to judge and determine, and a tongue to speak and explain." After he had spoken at some length Judge Lucas closed his response to Lawless with this: "May it please the court, I did not come to this country as a fugitive and an outcast from my native land. I came as a scholar and a gentleman on the invitation of Dr. Franklin."

Professional Ethics in the Thirties.

From the early days the bar of St. Louis has held to high standards of pro- . fessional ethics. When Luke E. Lawless was the circuit judge his reappoint- ment by the governor of the state was foreshadowed. A meeting of the members of the bar of St. Louis was called "to get an expression of opinion concerning the judicial qualifications of Judge Lawless." The meeting was presided over by Henry S. Geyer. The secretary was Thomas B. Hudson. This meeting de- clared belief that valid objections existed to the reappointment of Judge Law- less. These objections were stated as follows :

I. That the said Luke E. Lawless, Esq., is too much under the influence of first impressions, to give to each case submitted to his judgment a deliberate consideration.

2. That he is too passionate and impatient while on the bench, to admit a calm and full examination of cases.

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3. That on the trial of issues of fact before juries, his mind receives an early bias, plainly perceivable by the jury, to the prejudice of parties.

4. That he invades the right of juries, by assuming the decision of questions of fact exclusively within their province.

5. That his impatience and arbitrariness lead him to interrupt counsel unnecessarily, and frequently to preclude argument.

6. That he is wanting in punctuality in attending to the duties of the office.

7. That he is imperious, overbearing, and disrespectful in his manner to the members of the bar.

8. That he is indifferent to the faithful recording of the acts of the court wherein he is judge.

The governor, it seems, took the view that the opposition to Judge Lawless was largely on account of politics. He reappointed him. After serving a part of the term. Judge Lawless retired to private life.

A Public Spirited Jurist.

A movement to impeach a circuit judge was made in 1833. William C. Carr was the judge, having held the position seven years. Investigation showed that the charges were prompted by personal enemies. The legislature went through with the trial and acquitted. William C. Carr was described by those who knew him as being somewhat taciturn in temperament. He was sober and re- ligiously inclined, being looked upon as one of the leading Presbyterians of his day. Having no acquaintance with the French language when he came to St. Louis among the first arrivals after the American occupation, he made rather slow progress in the early years. But he advanced to a high position in the com- munity. He built the first brick residence. He gave a block of ground for a park. He was among the most active in organizing associations for charitable, agri- cultural, religious and scientific purposes. When he moved to the suburbs his farm and the mansion thereon were considered one of the show places of St. Louis. Of Judge William C. Carr it was said that he crossed the Mississippi river one winter on floating cakes of ice at the imminent hazard.of his life, floating down stream for miles before he could make the landing. He was com- ing from the east and was prompted to this act in order to be with his dying wife.

Early Court Days in Saline.

Thomas Shackleford, in his early recollections of Missouri, given to the Missouri Historical Society, told these stories of early court days in Saline county :

"Colonel Benjamin Chambers, a revolutionary soldier, was the first clerk of the county and circuit courts; he was a strict old school Presbyterian and a very positive character. While the court was being held at old Jefferson in a one-roomed cabin, ,an original genius, named William Job, was sheriff, and lived on a parcel of land as a squatter. He was called Bill Job, and was hardly able to write intelligibly, but was a man of great humor. He had handed the panel of the grand jury to Col. Chambers, who was at his desk, and Job stood in the door to call the jurors as indicated by the colonel. The judge was on the box, elevated a little, the lawyers sitting around; Chambers could not make out the full names of the jurors. He called to Job, 'Jacob-who is this?' Job called out from the door three times, 'Jacob Who-is-this.' Col. Chambers, much irritated

CHARLES P. JOHNSON

For fifty years a leading lawyer in many of Missouri's most noted criminal cases

ELMER B. ADAMS Judge of the Federal court; author of "The Man Higher Up," and of noted de- cisions on capital and labor.

CHIEF JUSTICE HENRY W. BOND Member of Supreme court of Missouri from 1912 to 1919

Vol. 1-15

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LAW AND LAWYERS

at the burst of laughter from the lawyers, then said angrily, 'Now you have done it.' Job immediately caused increased merriment by exclaiming three times, 'Now-you-have-done-it.' Job was a very poor man. As a boy I often heard the expression, 'As poor as Job's turkey,' which I thought was in reference to Bill Job's turkey. As I had never heard that the original Job of the Bible had a turkey, the expression must have originated from the old Bill Job, sheriff of Saline county. When a boy, I was riding with Col. Chambers. I had placed the ball of my foot in the stirrup when the colonel said to me: 'Young man, don't ride in that way.' I said: 'But, colonel, I might get thrown and would not like to have my feet hang in the stirrup.' 'Young man, when you mount a horse, you must not expect to be thrown. Ride with the middle of the foot in the stirrup, and sit upright. I have often in my experience in life, found that when a man expects to fail in life's battle, he generally fails.'

A Wetting Escaped.

"While Dr. Penn was going to see his daughter, and the court was then held at Jonesburg, Col. Chambers and Dr. Penn were riding on the prairie a long distance from any house. A sudden shower came up, which promised to be of short duration. The colonel, to the astonishment of Dr. Penn, it being a sultry hot day, deliberately got off his horse, took off his saddle, and then took off all his own clothes, put them all under the saddle, covered the whole with the blanket, and stood in the shower without his clothing until the shower had passed; then he dressed and rode comfortably home, while Dr. Penn had to go to the house of his sweetheart perfectly saturated with water.

"Such were some of the characteristics of this old soldier, who lived to be over 80 years of age. During the term of his service as clerk, my grandfather, Drury Pulliam, was sheriff, and his son, John C. Pulliam, who afterwards married a daughter of Col. Chambers, carried the whole of the state revenue, in silver, for one year, to Jefferson City in a pair of saddlebags.

"When Saline county was organized, old Jefferson on the Missouri river was chosen the county seat. The court was held in a one-roomed cabin, and the juries in the summer held their consultations in the shade of the trees. Judge David Todd, of Columbia, Boone county, was judge, and his circuit extended to the state line west. The lawyers and the judge frequently came to remain all night at my father's house. There often came Peyton R. Hayden, John B. Clark, Abiel Leonard, Hamilton R. Gamble, John F. Ryland, and Charles French and others. I listened to these men with wonder. Judge Todd and Gamble were the only professors of religion. All these men were Whigs. Col. Thomas H. Benton had assumed prominence as a leader of the Jacksonian Democ- racy, party lines were distinctly drawn, and the Democracy was in the ascendant, and as most of the judges of the state were Whigs, a constitutional amendment was adopted legislating them out of office, and the appointment of Democrats to fill their places.

Pioneer Justice.

"These early pioneers had a strong sense of justice. An incident in point: We had a limitation law, which barred all accounts in two years. I was a young man just begin- ning to practice; a client came to me with an account for flour sold over two years preceding. I said to him: 'It is barred by law.' 'I know it,' he said, 'but I want him to plead the act if he dares.' I brought the suit, the trial came on. The defendant said: 'Squire, I plead limitation on this account.' The squire said: 'Before you do this, let me ask you some questions. Did you buy this flour?' 'Yes.' 'Did you eat it in your family?' 'Yes.' 'Did you ever pay for it?' 'No.' 'Then you can't plead limitation in my court. I give judgment against you.' The defendant paid the debt. Another inci- dent : A purchaser of tobacco had made a purchase of a farmer by verbal contract. Tobacco raised in price, and, his covetousness getting the better of him, he refused to deliver. The purchaser asked me to sue him. I told him I could not recover if the man pleaded the statute of frauds. 'He dare not do it and put it on record. I will give you five dollars to bring the suit.' I did so, the writ was served; the next day the purchaser

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came into my office with a five dollar bill in his hand. 'Here, S.,' he said, 'we shot at the bush and got the game. A. has delivered his tobacco.'"

The Stokes Scandal.

The scandal of George IV and Caroline had an echo in the St. Louis courts. The Prince Regent repudiated his wife. He charged her with infidelity. Princess Caroline was living away from England. When the Prince became George IV the first thing he did was to declare his charges against his wife, and to call upon parliament to dissolve the marriage. Caroline returned to England, claimed her royal rights, and appealed to the public. Sympathy was with her. It was stimulated by the methods employed to collect evidence of Caroline's alleged . wrongdoing. The prosecution failed utterly and was abandoned. . Not long after this there appeared in St. Louis an Englishman who was introduced as William Stokes. He brought with him a credit of 28,000 pounds sterling. That was a great deal of money in the eyes of St. Louis people. Stokes announced that he had selected this as his future home. Through General William H. Ashley and others he began to make large purchases of real, estate. Away to the westward of the city as it was then, near what is now Olive street, he bought two hundred acres of ground. This was laid out as the country home of an English gentleman. Extensive stables and outbuildings supplemented the mansion. Orchard and garden, a tree-bordered driveway, a park were added at lavish cost. Stokes was made welcome. His family was shown the social courtesies which St. Louis people so well knew how to bestow. This family consisted of Miss Stokes, the sister, and a lady who was presented as Mrs. Stokes, the wife. Miss Stokes was a young woman of fine education and good breeding. In time she became the wife of John O'Fallon. Stokes had become well settled in St. Louis. Four years had elapsed since his coming. Mrs. Mari- anne Stokes arrived. She announced that she was the real wife of William Stokes. She told the story of his desertion in England. Her version was that Stokes had been employed by the crown to furnish evidence against Queen Caro- line. For this she said his reward had been 50,000 pounds. But the conduct of Stokes, when the evidence was presented, appeared so disreputable that he was compelled to exile himself. He had taken his housekeeper with him. That he was in St. Louis had been learned through the Barings, bankers.

Mrs. Marianne Stokes took board in St. Louis and employed lawyers. She , wanted alimony ; she also wanted a divorce. Her chief counsel was Luke E. Lawless. Stokes was defended by an array of talent headed by Thomas H. Benton. A jury was summoned to report on the facts. It was composed of George Martin, Gabriel Cerrè, Joseph White, John R. Guy, Joseph Liggett, Jonathan Johnson, James J. Purdy, John Sutton, Dempsey Jackson, William Anderson, James Loker, James B. Lewis.

St. Louis was shocked at the revelations. Stokes was shunned. But there was not much sympathy for Mrs. Marianne Stokes. That lady was too plainly out for revenge. Moreover, she took pains to show that she considered herself very much above the society of St. Louis. It was her custom to carry to the table her own knife, fork and spoon, enclosed in a beautiful case, and to use them in preference to those furnished by the landlady where she boarded.

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A Sensible Missouri Judge.

Lawless pressed the case with a great deal of bitterness. He got an order for $90 a month alimony while the case was pending. The law officers were set upon Stokes every month for the alimony. If there was a delay, Lawless would go before a justice and get a judgment ; then Stokes would be threatened with arrest unless he paid. The litigation got into the supreme court. An opinion rendered there shows that the course of the prosecution was not viewed as entirely praiseworthy. Judge Pettibone, announcing the decision, said sensibly :

"It appears by the complainant's own showing that she and her husband separated by consent in 1807, and that they had never since lived together; that in 1816 she left the neighborhood in England and went over to France. The laws of England afforded her redress; she was free to seek it there if she wished it; she was under no coercion of her husband, for she lived separate from him; she was not forced away by him before she could have an opportunity to make her complaints. If for nine years she could behold the open adultery and profligacy of her husband, I see no reason why the courts of this country should at this hour be called upon to interfere in her behalf. It is against good policy and good morals to do it. Investigating cases of this kind leaves a bad impression upon the public mind and has a tendency to deprave the public morals, and ought to be resorted to only when the due administration of justice imperiously requires it. Every offense committed within our own country against the morals and manners of society we are bound to notice and punish, whenever we can get opportunity. But it is carrying our comity very far to say that we must investigate the adulteries and family quarrels which took place in England perhaps ten years ago, when the parties had an opportunity of applying to their own courts. And I am unwilling to establish the principle that parties may lie by in their own country under injuries of this kind, and then come here and ask us for the redress which they might and ought to have obtained there."

In the end Marianne Stokes was given judgment for a considerable sum. Stokes' property was seized and sold. Some pieces went for one-tenth what he had paid. The Mrs. Stokes who had first appeared in St. Louis died. The wife of John O'Fallon died, leaving no children. Stokes died and was buried in a little grave not far from where the mansion stood. For a time the grave was surrounded by a wooden fence. A half century later when grading was being done near the line of Olive street, the workmen came upon a part of a skull and thigh bones. The coffin and other parts of the body had gone to dust. The bones were loaded into the cart, hauled away and thrown into the depres- sion which was being filled. There isn't so much as a grave left as a reminder of the Stokes family tragedy of ninety years ago.

Early Law Givers.

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Centennial history of Missouri (the center state) one hundred years in the Union, 1820-1921, Volume I, Part 26

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