Centennial history of Missouri (the center state) one hundred years in the Union, 1820-1921, Volume I, Part 28

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 28

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Judge Edward A. Lewis, according to Judge Barclay, was up to the time of this address, the only judge in the state who "served on both the appellate and

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supreme bench of Missouri. He was proud of the fact that he had been a prac- tical printer in his younger day. During the reconstruction period he published an extremely brilliant pamphlet entitled 'The Voice of Law,' which dealt with some political events which occurred in this state about that time. It was widely read and secured him a position of leadership among the Democratic lawyers of the state."

Professional Individuality.

Plain speech between bench and bar has been frequent in the history of the legal profession in Missouri. Judge Peyton R. Hayden, of Boonville, was argu- ing a case before Judge Tompkins on the supreme bench when the judge asked, "Why is it, Mr. Hayden, that you spend so much time in urging the weak points of your case, to the exclusion of the more important ones." Mr. Hayden replied : "Because I find in my long practice in this court that the weak points win fully as often as the strong ones."

Judge Tompkins was a stickler for the dignity of his court, and this applied to the personal appearance of those who practiced before him. On one occasion he said, when time for adjournment came: "Mr. Blank, it is impossible for this court to see any law through as dirty a shirt as you have on, and this court will now adjourn until ten o'clock tomorrow morning to give you a chance to change your linen."

Mark L. DeMotte who afterwards became a Member of Congress from In- diana, clashed with the constitution of Missouri while he was serving as prosecut- ing attorney in a western county of Missouri. At his first term of court he pre- pared a number of indictments. Looking to some former indictment for a guide De Motte noticed that they all ended with "against the peace and dignity of the state." This looked like an unnecessary relic of the past, to the young attorney. He concluded that it was a waste of verbiage and omitted the clause from the bills he drew,-which bills were quashed as soon as they got into court, the con- stitution, new at that time, requiring that all indictments end with these words.

"Shingle' it from the comb down," was the instruction Judge W. B. Napton gave the carpenters when he was building his country home at Elk Hill in Saline county. And the amused carpenters told the story on the judge far and wide to show how little the best of legal minds might know about making a roof that would shed rain.

When Judge John C. Price found it necessary to reorganize the circuit court in Newton county during the demoralization of the war period, he appointed George W. Randolph circuit attorney, but was a good deal disturbed by the ir- regularity of Mr. Randolph's presence in court. He sent the clerk to summon Randolph into court and said with some show of severity : "Randolph, I will have to fine you if absent again during court hours." "Very well, Judge," replied Ran- dolph, "You'll find me at the grocery."

When the first circuit court in Newton county opened, Sheriff Gibson was sick and sent his son, a boy of nineteen, to take his place, telling him to do what- ever the judge ordered. The judge, at the opening, told the boy to "call the court." Young Gibson went to the door and shouted, "Oh Court," evidently thinking he was calling some one named Court. A lawyer near by said to the Vol. 1-16

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boy, "Now you've done it." "Now you've done it," bawled the youth, thinking this was part of the instructions.

The Law's Delays.

As he neared the close of his long term of years on the supreme bench of Missouri, Judge Henry Lamm was called upon by the Bar Association of the state to suggest the remedy for the law's delays. He went back through cen- turies to show that this was a grievance of long standing, accountable to a degree in the perversity or weakness of human nature. But he summed up in certain suggestions to which his experience led him:

"First: Avoid an unwieldy supreme court if you want accord and expedition. Make three divisions of three judges each, or make its membership five in one and four in the other and leave the divisions as they are-more than nine men are too many, less are not enough for the natural increase of business incident to the growth of the state-a factor present and to be sharply reckoned with.

"Second: Experience has shown it a mistake to write into your constitution the inflexible command that the court should write opinions in all cases. A court worthy to be trusted in the main thing, to-wit, to decide a cause, should be trusted in the incidental thing, to-wit, to pass an order that no opinion is necessary in a particular case on an affirmance or reversal outright. That perennial spring of delay should be sealed up by striking that provision from the constitution, leaving to the court to write or not write opinions on affirmances or reversals outright, as a debt due to justice may dictate in each case.

"Third: It was a mistake to write into your statutes the inflexible command that the court should write a statement of the case and, mark you, one that 'may be under- stood.' There is a rich mine of humor in that 'understood' if this were a humorous occa- sion and time permitted digging, but let that pass-a jest in my mouth might be a serious matter. That provision is a fruitful womb of delay, when the record is voluminous and the facts many and intricate. The provision should be cast into the dustheap of repealed statutes.

"Fourth: In forty years records have grown out of all reason compared with the records prepared by the old bar and reviewed by the court of your fathers. These immense records are not only a hardship on litigants, draining away their substance, but are such a clog and drag on the wheels of justice as breed delays. If our rules are to blame, no greater service could be rendered than to have a committee of the wisest men of the bar point out an amendment. But it will be found, I think, that the root of this particular mischief lies deeper than mere rules of court, and the lawmaker who can draft and the bar that can aid him in drafting a simple relief act will deserve uncommonly well of the commonwealth. I hazard one suggestion: As a rule in suits at law it is a demurrer to the evidence that seeks and searches the entire body of the proof. Now, if a litigant, who tries his case below on the trial theory there is a case for the jury, and puts his case to the jury on the merits and facts, should be denied on appeal the right to question that theory, would justice receive a wound in the house of her friends? If a litigant stands on a demurrer below, the case presents another angle and bespeaks a different treatment on appeal."

A Case Won on One Question.

A case was won in the St. Louis circuit court by Henry S. Geyer on a single question and answer. David B. Hill, a carpenter and builder, was put on the stand to testify as an expert. The question was one of defects in the construc- tion of an ox mill which was run by the weight of oxen. Mr. Hill gave his tes-

THE BOONE COUNTY COURTHOUSE, ERECTED IN 1847

THE BOONE COUNTY COURTHOUSE, ERECTED IN 1909

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timony for the plaintiff, going much into detail. He was turned over to the de- fense for cross examination.

"Mr. Hill," asked Mr. Geyer, "you have discovered perpetual motion, haven't you ?"

"Yes, sir, I have," replied Mr. Hill.

"Stand aside, sir," said Mr. Geyer.

No testimony was introduced for the defense. Mr. Geyer devoted his time to ridicule of the invention of perpetual motion. The audience listened with keen delight. The jury found for the defendant. Hill outfived Geyer nearly twenty years. To the end of his eighty-three years he was "the man who had discovered perpetual motion." He was a man of respectability and much esteemed in his vocation. His hobby was mechanics and he gave a great deal of time to inven- tions.

Samuel T. Glover, who was a member of the committee of safety in St. Louis at the outbreak of the Civil war and who became the dean of the St. Louis bar, fought in the Palmyra court with another young lawyer, E. G. Pratt. Tradition has it that both fists and feet were used. Glover was fined $10 "for contempt of court in striking E. G. Pratt" and Pratt was fined "for insulting language used and for striking S. T. Glover." Further than that the grand jury indicted both lawyers who were arraigned, plead guilty and were fined $5 each.

More than professional, like unto the relationship of brothers, was the tie that bound together some of the law firms formed in Missouri. Joseph L. Stephens, native of Missouri, born in Cooper county in 1826, intended to be a lawyer and practiced until a severe affection of the throat caused him to turn to a business career and to become a railroad builder and banker. For several years before the war Captain Stephens, captain by virtue of having been elected to command a company of Missourians enlisted for the Mexican war, was a partner with George G. Vest until the latter went into the Confederacy. When Vest returned in the impecunious condition which the war left most of the Mis- souri Confederates, Captain Stephens sent him a check, signed but the amount left blank telling him in a note to fill it out for whatever he needed to put him on his feet. Vest accepted the offer for a small amount. It was said of Captain Stephens, busy man as he was, that he never forgot an old friend and never hes- itated to extend a helping hand if aid was needed.

Missouri's Legal Literature.

Charles C. Whittlesey was Connecticut born and Yale educated when he joined the legal profession of St. Louis in 1841. He married a member of an old Maryland family, Miss Groome. Through his contributions to newspapers and magazines and through his law books he sustained a high literary reputa- tion throughout the third of a century he lived here. His book on general prac- tice, his volumes of the Missouri Reports were standard works in the law li- braries long after he died. Another member of the profession whose contri- butions to legal literature won him national fame was Frederick N. Judson, of historic Connecticut ancestry and a Yale man. Nathan Frank, Illinois bred. educated at Washington University and Harvard, found time in busy prac- tice to prepare and publish a volume which became authority in bankruptcy liti-

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gation. Eugene McQuillin, of Iowa birth, reached the circuit bench in 1908 with a well earned reputation as an author of legal textbooks.

When John Marshall Krum came west from Columbia county in New York State in 1834, with his diploma from Union College, he thought Alton might be the metropolis of the Mississippi valley, and opened a law office. When Alton became a city, Judge Krum-he was probate judge of Madison county-was elected mayor, as a Democrat, over the next most popular man in town, a Metho- dist minister. In 1840, having concluded that St. Louis was the destined metropo -. lis, Judge Krum declined further honors at Alton and moved down the river. His reputation accompanied him. In three years he was appointed judge of the St. Louis circuit court and in 1848 he was elected mayor of St. Louis. Just before he came to St. Louis, Judge Krum married the daughter of Chester Harding, the most famous artist of his time in the Mississippi valley. While he was on the bench, Judge Krum published "Missouri Justice." In 1872 the unusual record of father and son having sat on the St. Louis circuit bench was made in the election of Chester H. Krum as circuit judge. The second Judge Krum was educated at Washington University and at Harvard.

Almost a monopoly in litigation at Washington had the law firm organized in 1863 with a St. Louis connection. The partners were Thomas Ewing of Ohio, relative of the Shermans, a senator and a cabinet officer in two administra- tions : Orville H. Browning, who had been a senator from Illinois and who was to become a cabinet officer. in the Johnson administration; and Britton Arm- strong Hill of St. Louis. Mr. Hill was of New Jersey birth. He studied law in New York and was admitted to the bar at St. Louis in 1841. Of splendid physique, of intellectual independence, he became a marked character in the com- munity as well as a great lawyer. There seemed to be no limit on the mental activity of the man. . Mr. Hill took up the study of medicine in his omnivorous appetite for knowledge. When the epidemic of 1849 overtaxed the medical pro- fession Mr. Hill became a volunteer among the poor. He prescribed, he nursed, he laid out the dead. The natural bent, encouraged possibly by that cultivation of sympathy through his practical work in the cholera epidemic, prompted Brit- ton A. Hill to become a champion of the masses. The last two decades of his forty-seven years in St. Louis he gave much time to writing and talking on what he conceived to be the dangers threatening the American spirit. He wrote "Lib- erty and Law," which attracted attention the country wide. He called a conven- tion on a platform of opposition to monopolies, of government control of rail- roads. This convention declared for the postal savings bank, for settlement by ar- bitration of international controversies, for restoration of the land grants. It was far ahead of the times.

Alexander Hamilton, a Philadelphian of Scotch-Irish ancestry, sat on the circuit bench of St. Louis ten years. He was twice appointed by different gov- ernors and once elected by the people. While he was judge the Dred Scott case came before him. The position Judge Hamilton took was sustained by the su- preme court. Nearly half a century Judge Hamilton held an enviable position in the legal profession of St. Louis. He declined to be a candidate for the supreme bench when he would have been elected. The tenth circuit judge of St. Louis was a boy eight years old when his parents moved from Maryland to a farm

MELVIN L. GRAY

ALEXANDER KAYSER

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in St. Louis county. It is a notable fact that James Ransom Lackland who became one of the strongest men in the profession did not enter it until he was nearly thirty years old. With limited advantages in his boyhood, he taught a country school. He clerked in stores. He obtained a deputy clerkship in the court and that gave him the opportunity to read law. Two years after he was admitted he was elected circuit attorney ; then judge of the criminal court and next judge of the circuit court. Samuel M. Breckenridge was circuit judge during most of the war period. He was of southern ancestry but a strong Union man. His suc- cessor was a northern man but took a position which cost him the judgeship. One of the most hostile against the test-oath was Judge James G. Moody, a Penn- sylvanian who came here in 1855 and formed the law firm of Moody, McClellan & Hillyer. In the office of this firm Ulysses S. Grant, before the war, had a desk and tried collection of bills for real estate agents. Judge Moody while on the circuit bench absolutely refused to require jurors to take the test-oath and was removed by the legislature in 1866.

Bench and Bar of the Platte Purchase.

Perhaps no other six contiguous counties in Missouri measure so large in the bench and bar of this state as the Platte Purchase. "Attracted by the genial climate, rich soil, untold wealth of this newly ceded country, the love of adven- ture and hope of fame and fortune soon swept throughout the Platte Purchase many strong, clear, scholarly and eloquent lawyers," Henry Clay McDougal told the Missouri Bar Association in an address several years ago. Among those who were drawn by "stories of the fabulous richness of that splendid domain" was Elijah Hise Norton fresh from the law department of Transylvania Uni- versity at Lexington, Kentucky. Robert P. C. Wilson told of the young Ken- tuckian's arrival and of the charm he found in the life of the Platte county.

"He arrived in Platte county on the 8th day of January, 1845, where he found the settlers, true to the traditions of their home states, holding a rousing General Jackson- Battle of New Orleans celebration at the court house in Platte City, its county seat. He was not disappointed by the tales told of that magnificent country, but thought that the half had not been said. Vast primeval forests and wide stretching prairies confronted him, then silent under the martial tread of the Frost King, but with the coming of spring to fling wide their budding branches to God's whispered music of hope, while treeless tracts rioted in the blazonry of bloom. Game of every description abounded. The wild turkey nested unmolested near the homesteader's cabin. Geese, ducks and prairie chicken in season covered the rivers, lakes and prairies, while quail in countless numbers abounded throughout the country. Indeed, the Platte Purchase was then a veritable paradise for the sportsman. Surrounded with everything necessary for a desirable home, he deter- mined to locate permanently at Platte City, and on the 15th of April, 1845, was enrolled a member of the Platte county bar, Judge Vories, his predecessor on the supreme bench, being enrolled as a member of that bar on the same day. He was twenty-three years of age, strong, aggressive, and impatient for legal battles, when he hung out his 'shingle' over the door of one of two log rooms adjoining, my father occupying the other as his law office. It was then, as a mere boy, my acquaintance with this great man began. Devoted to sports afield, and particularly to netting quail, he usually took me along to help drive the covies within the wings of the net. In this happy, carefree way, a friend- ship between boy and man was formed which continued under all the vicissitudes of a long, strenuous life for us both, until the end."

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Four Governors from the Platte Bar.

Judge McDougal, in his recollections of the bench and bar of the Platte Pur- chase, not only reviewed the names illustrious throughout life in Missouri, but recalled some who had gone from the six counties to become famous in other states.

"For judicial purposes, the territory thus acquired was at first attached to the Fifth circuit of Missouri, which was then presided over by Judge Austin A. King, of Richmond, who in 1848 became governor of Missouri. Judge King held the first term of the circuit court for the Platte Purchase at the Falls of the Platte river in May, 1839. But in 1841 David R. Atchison, of Platte, was made the judge of the circuit court, with both civil and criminal jurisdiction over a vast scope of country. Judge Atchison was later a. United States senator from Missouri for twelve years, commencing in 1843, and while serving as the president pro tem. of that body is credited with the honor of having been president of the United States for one day. Robert Wilson, of Andrew, was made a United States senator from Missouri in 1862.

"Four members of the bar within the Platte Purchase have been honored governors of Missouri, viz: Robert M. Stewart, Willard P. Hall, and Silas Woodson, of Buchanan, and Albert P. Morehouse, of Nodaway.

"And the following named members of that bar have also served the people as judges of the supreme court of Missouri, namely: Philemon Bliss, Henry M. Vories, Archelaus M. Woodson, of Buchanan, and Elijah Hise Norton, of Platte, who only last month there died in his ninety-third year; while that learned, fearless, clear-headed magician in the law, Stephen S. Brown, of Buchanan, is now (1914) serving on that bench as com- missioner of this same court. Strong, rugged and stalwart Benjamin F. Stringfellow, before removing to Platte, was attorney-general of Missouri in 1845, and the scholarly, superb and eloquent James B. Gardenhire, of Buchanan, also filled that office with dis- tinguished ability from 1851 to 1856.

"The bench of the Kansas City court of appeals has been ornamented by Willard P. Hall (the younger) and James M. Johnson, of Buchanan, and W. W. Ramsey, of Nodaway.

The Platte Bar Abroad.

"Isaac C. Parker, a conspicuous member of the Buchanan bar, was first the judge of the St. Joseph circuit court, then a member of the United States Congress for four years, and then in 1875 President Grant made him the United States district judge at Fort Smith, Arkansas. From that time on to his death many years later, Judge Parker continued to enforce the law so vigorously and have criminals executed so promptly that he became famous as 'the hanging judge.' President Cleveland, during his first term, appointed the versatile Lafe Dawson, of Nodaway, judge of the United States district court of Alaska; but the climate of the frozen north was so rigorous that he resigned his office, and later died at his old home in Maryville.

"Among many others not now recalled, it is well to note that the following named members of this bar who have been honored by the people after leaving the Platte Pur- chase were: Joseph K. Toole, governor of Montana; and Charles W. Wright, attorney general of Colorado, both of Buchanan; John P. Altgeld, once of Andrew and later governor of Illinois.

"Mention is here made of two other eminent lawyers and great men of the Platte Purchase in the years that are gone, not only because the name and fame of each should be honored and perpetuated, but because each was my personal friend-James Craig and Bela M. Hughes. The former was an officer in the war with Mexico, a general in the Civil war, a member of Congress, the president of the old H. & St. Jo. Railroad, and few on earth have surpassed him as lawyer, public speaker and entertaining raconteur; while on account of the approaching troublous times, Bela M. Hughes quit the Buchanan bar in 1861, located in Denver, and no man in public or private life exerted a more potential

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power for good upon the jurisprudence, and public and political life of Colorado than did this strong, clear, able lawyer.

"Memories of the long past, reflecting upon the traditions, records, and achievements of the pioneer lawyers of the Platte Purchase, recall the power and ability of those leviathans of its bar who in early life swam about in the vast sea of the law with so much confident ease, and with a sigh of regret the historian may well pause and for a moment dwell upon the wise words of the Book of Books-'There were giants on the earth in those days.'"

Pike County Practice.

In giving some of his experiences as attorney for the defense, David Ball of Pike county told these :

"I have defended 33 men charged with murder and acquitted 31 of them. Once I cleared a poor man of murder after a hard-fought legal battle lasting two weeks, and got only a turkey for my fee. And I believe to my soul the scoundrel stole that turkey.

"Once when Judge Biggs was on the Pike circuit bench and I was prosecuting attorney a man was arrested for stealing a bundle of socks. I spelled it 'sox, in the indictment, and when Judge Biggs read it in court, he said:

"'Dave, that is not the way to spell "socks."'

"I rolled my cigar over, winked both eyes a time or two and replied :

"'May it please Your Honor, if s-o-x don't spell socks, what in the tarnation does it spell?' And it remained 'sox' in the indictment."

"I was defending a Pike county man once, who was accused of stealing meat from his neighbor's smokehouse. The farmer who lost the meat swore that he knew it was the defendant who stole it, because he was the only man in Pike county who was lean enough to crawl through the opening in the smokehouse window, where a pane of glass was broken out.

"'Sure no one else could have crawled through?' I asked.

""'None but him.'

"I yanked the identical window frame from beneath a table and slipped it down over the head and shoulders of the man on the stand, who was much stouter than the defendant.

"The two lawyers for the man on the witness stand leaped to their feet and shouted : " 'Here, what are you doing there?'

"'I'm just putting your client through the same sized hole you say our client went through,' I answered. I won the case."

David Ball once had the benefit of Champ Clark's natural inclination to take the part of the weaker side in a controversy :

"When Champ Clark and I were partners in 1877, he kept me from getting an awful thrashing. Clark was an unusually fine specimen of physical manhood in those days, tall, athletic without a pound of surplus flesh, and with muscles of steel. He was just out of school, where, among other things, he had practiced in gymnasiums for hours daily at every exercise intended to develop strength, including boxing. Like most Kentuckians, he was fond of a pistol and always kept two or three on hand. One day three big rough fellows, who had taken offense at me about a lawsuit, came into the office and picked a fuss with me. They cursed and abused me for ten minutes, during which Clark was sitting at his desk, pretending to read a book and apparently taking no interest in the rumpus. I did not know whether he would help me out or not, consequently I did not talk back to the fellows very much. At last they concluded to give me a beating and advanced towards me. Quick as a flash, Clark pulled open the drawer of his table, exposing two glittering pistols to the view of my would-be assailants and yelled: 'Hi-yi, you ruffians. I do the fighting for this firm and I'll give you just three seconds to get

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Centennial history of Missouri (the center state) one hundred years in the Union, 1820-1921, Volume I, Part 28

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