Centennial history of Missouri (the center state) one hundred years in the Union, 1820-1921, Volume I, Part 29

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 29

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CENTENNIAL HISTORY OF MISSOURI

out of here, or I'll throw you out the window and break your necks!' Within the limit he allowed, those fellows were going down stairs three steps at a jump Clark shut up the drawer with a grim smile and resumed his reading. I thought then he was the hand- somest man I ever saw. He has long since given up carrying pistols, but I was glad he had them that day."

The Poet Judge.

George W. Dunn might have won wide fame as a Missouri poet, but early in his career he became possessed of the theory that exercise of that genius would detract from his success at the bar. He was commonly known in the Platte Purchase as "the poet judge." He was one of the first Missourians elected to the bench when the constitutional amendment in 1851 made circuit judges elective, instead of appointive by the governor. Judge Dunn thought he had resolved to give up writing poetry and wrote his "Farewell to My Harp," but in later years he occasionally indulged himself. One of the judge's produc- tions which brought him most fame was "The Ermine.and the Harp." The first stanza was:

"The Ermine hue of spotless white Invokes the wearer's earnest ken, As law and equity unite To shield and bless the sons of men ; For heaven-born truth by right prevails

. And baffles every crafty scheme,

When Justice holds the impartial scales And Mercy's tears bedew the beam."

Missouri's Legal Classics.

In a history of the Bar Association of Missouri, published by the St. Louis Star in October, 1899, the then president of the Association, George Robertson of Mexico, placed this estimate upon some of the most important papers read before the association :

"Without exalting one paper read by the members of the association above another, that by Judge Black of Kansas City upon 'the Property Rights of Married Women in Missouri,' in 1882, probably had more to do with the quickening of the legal conscience upon the then unsatisfactory condition of that subject of the law than anything else that has ever heen said or done in the state, and finally culminated in the act of 1889 which conferred upon married women the same property rights that had been enjoyed by a 'femme sole,' thereby taking her from the legal class of incompetents, infants, idiots and lunatics, to which she was bound by the rules of common law, and gave to her all the rights . and privileges possessed by other persons of equal capacity, intelligence and responsibility. In this connection deserving mention is the debate between E. S. Scarrett and J. A. Harrison on this subject had before the association in 1887.

"Another paper of extraordinary value to the legal profession of Missouri is 'The Remedy by Injunction in Missouri,' by Adiel Sherwood, at the Springfield meeting in 1895. He treats of the subject as touched upon by the various decisions of the appellate courts of this state. It is a complete epitome of the law of injunction as applied in Missouri, as regards pleading and the particular subjects of litigation to which it may be applied. This paper will serve as an excellent textbook upon the subject of injunctions to the practicing lawyers of the state.

THE FIRST COURT HOUSE, (SPARTAi.

THE SECOND COURT HOUSE, (ST. JOSEPH).

THE FIRST TWO COURTHOUSES OF BUCHANAN COUNTY The log building was the first temple of justice in the Platte Purchase about 1840.

Later the county seat was moved from Sparta to St. Joseph

(

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"Worthy of particular mention and ranking with the legal classics of this and past generations are the papers, 'Trial by Jury,' by Amos M. Thayer; 'The Lawyers of the Roman Republic,' by F. W. Lehmann; 'Mandatory Injunctions,' by Jacob Klein; 'Constitu- tional Law in Ancient Greece,' by C. O. Tichenor; and 'The Power of the State to Regulate Prices and Charges,' by G. A. Finkelnburg."

Judge, Witness and Counsel.

In the early history of the circuit court of Buchanan county, the judge was subpoenaed as a witness and a change of venue was demanded on that ground. But the judge ruled that there was nothing in the statutes to prevent him from being both witness and judge. The trial proceeded. The judge was called as a witness, descended from the bench and took the stand. There was objection raised to the first question asked. The judge left the stand, went on the bench and overruled the objection. He returned to the stand and answered the ques- tion. At the next question the same farce was enacted. By that time the judge concluded that the change of venue should be granted.

In the days of the rush to California sharpers played their cheating games on the argonauts. One of the fraternity was brought before Mayor Mills of St. Joseph. He set up the defense that his game was not chance; that it was a sure thing. "Then," declared the municipal Solomon, "it is just like this court. You shall pay a fine of $50."

Monroe county had a case of combination judge and witness which worked better. About the time Union township was organized, Reuben Burton brought suit' for a hog he had lost, claiming he had found it in the possession of a free negro, named Rious. The case was tried before Justice John Burton, a brother of Reuben. After the testimony appeared to be all in, Justice Burton stood up and told Constable Pleasant Ford to swear him. The plaintiff had been rep- resented by a lawyer, but the negro had nobody to take care of the defense and it looked as if the case was going against him. Justice Burton after taking the oath, said he had often hunted with Rious and knew the hog to be his. He there- fore gave the decision against his brother.

The Misssouri bar has had its full proportion of poor writers, one of whom was Judge Ezra Hunt who graduated at Harvard with the distinction of being a phenomenal student in mathematics. He taught a while in academies and came to Missouri where he was tutor to Judge William Carr's children. Young Hunt had thought of studying for the ministry but gave up that for law. He became noted for his bad handwriting. On one occasion he gave an opinion in writing on a land case. The man who received the opinion couldn't read it. After trying several people who couldn't tell what was meant he took the paper back to Hunt. The latter glanced at the paper and remarked, "Some blanked fool has been trying to write, but failed." The client was diplomatic. He said, "Judge did you ever write to me about that case of mine?" Hunt scanned the paper again and read it aloud, remarking as he closed, "Anybody but a blanked fool could read that."

A Solomonic Decision.

Judge Burckhartt was the first circuit judge to be brought from the interior of the state to try a criminal case in St. Louis. This was the Kring murder trial.

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Kring's lawyers took the case to the supreme court on that novelty in practice. The court decided that the calling of a judge from the country circuit was legal and thus established a precedent of some importance.

Of Judge Burckhartt many stories are told by North Todd Gentry. The judge was a fine handshaker when campaigning for reelection. He had such a cordial way that he convinced the voter that he remembered him personally when, as a matter of fact, he could not place him. Once, according to Gentry, the judge shook hands with a young man and asked familiarly, "How is your father?" The young man looked surprised and said, "Father is dead:" The judge im- mediately rallied and said, "Why, yes, I knew that. I meant to ask how is your mother?" The young man answered, "Judge, mother died before father did!" To this Judge Burckhartt quickly responded, "Well, well, how are you; I know you are alive." Later in the day the judge met the same young man and as solicitously as ever asked after his father. "Judge, he is still dead," was the an- swer.

Gentry says that when he was young at the bar, he complained to Judge Burck- hartt that the judge was appointing him to defend paupers more times than other lawyers were asked to take charity cases. "That is all right, Gentry," the judge said, "you get the experience, and your clients get in the penitentiary; and you both get what you are needing."

Judge Burckhartt was very courteous to ladies. He invariably made it a point to see that ladies coming into his court were given seats. One day a young lady relative came in and saw that the judge's eyes were closed. As she approached the judge opened his eyes. The lady apologized for awaking him. The judge called her by name and said, "I hope I will never live to be so old that I shall not be awakened by the rustle of a young lady's petticoat."

Judge Burckhartt decided a calf case about 1880 by an extraordinary pro- cedure which was Solomonic. The calf was claimed by Bill Reeves, an old negro, and by Captain John Eaton, a farmer who owned a large number of cattle. After the jury had been chosen, Old Bill addressed the court: "Massa George, may I say something? My little boy has been playing with my calf and riding it all summer. Now if he can't go up to Massa John Eaton's place, put a rope round that calf's neck and ride him home, then I don't want the critter."

Captain Eaton consented to the test and the court adjourned to Eaton's farm, saw the little negro rope the calf without any trouble and ride it home. The judge laughed and John Eaton dismissed the case at his own expense. 1

Jackson County's Distinguished Bar.

The evolution of the Jackson county bar, and the part it has had not only . in professional life, but in the public affairs of state and nation were recalled by Judge Henry Clay McDougal in an historical address before the Missouri Bar Association in 1914:

"When this county was organized in 1826, David Todd was its first judge of the circuit court. He was succeeded by Russell Hicks, a member of this bar, and he, in turn, by a long line of level-headed, clear-minded, learned and fearless judges. The circuit court then had but one judge, and exercised both civil and criminal jurisdiction, while

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now (1914) Jackson county has ten circuit judges and also one judge of equal rank who hears and determines only state cases and is known as the judge of the criminal court. In 1826, the county had but three resident lawyers; but, in keeping with the growth and development of the county, this number has increased to approximately 950.

"In 1855, 'the probate and common pleas court' for Jackson county was established, and its jurisdiction was enlarged in 1863 to include state cases, so that finally it had full jurisdiction of probate and criminal cases and limited jurisdiction in civil cases up to the time that court was finally abolished in 1871. At the date last named, two courts, having probate and criminal jurisdiction, came into existence and so continued until 1880, when they were made entirely separate and distinct.

"In 1873, the lawmakers of the state established a 'special law and equity court of Jackson county,' which in turn went out of existence at the time limited by the constitu- tion of 1875. Robert E. Cowan was judge of this court.

"The criminal court of Jackson county, with substantially its present jurisdiction, was created in 1871, and Robert C. Ewing, Henry P. White, John W. Wofford, William H. Wallace and the present incumbent, Ralph S. Latshaw, have served upon that bench in the order named.

"From the organization of Jackson county in 1826 up to 1871, the circuit court of the county was always held at the county seat at Independence; but in that year the county was made a separate circuit and that legislative act provided for holding terms of the circuit court at both Independence and Kansas City, the common pleas court was then abolished, and the circuit courts have ever since been held in both cities.

"Four of the members of this bar have ornamented the bench of the supreme court of Missouri, namely: Warwick Hough, John W. Henry, Francis M. Black and John Kennish.

"The Kansas City Court of Appeals was created by the constitutional amendment of 1884, and held its first session in March, 1885. The following named members of this bar have served the people on the bench of that court: John F. Philips, Willard P. Hall, Turner A. Gill, Jackson L. Smith and Elbridge J. Broaddus, while its present (1914) membership consists of James Ellison (Kirksville), James M. Johnson (St. Joseph), and Francis H. Trimble (Liberty).

"The Jackson county bar has also given to both state and nation its full quota of officers and men for the wars through which the country has passed since 1826, as well as furnished to the civil list officers who have brought honor and credit to their pro- fession and county, and among the latter many a nisi prius judge and member of the United States Congress not here named. However, our Benjamin J. Franklin was the governor of Arizona in its territorial days, and also a United States consul in China ; while Thomas T. Crittenden and Arnold Shanklin were consuls general to Mexico. When not directing the official action of his many subordinates throughout our troubled sister republic, or dodging bullets of opposing factions of late months, Brother Shanklin is now (1914) on duty down at the City of Mexico.

"Three of our members have been United States district judges in Kansas City, viz : Arnold Krekel, John F. Philips and Arba S. Van Valkenburgh, while Webster Davis was assistant secretary of the interior under President Mckinley.

"Three of our members have been governors of the State of Missouri viz: Lilburn W. Boggs, Thomas T. Crittenden and Herbert S. Hadley.

"John Lee Peak was our United States minister to Switzerland under President Cleveland ; while George W. McCrary was a cabinet officer as the secretary of war under President Hayes from 1877 to 1881, and was later a United States circuit judge; and this bar has been further honored by the selection of two of its members as United States senators from Missouri-William Warner and James A. Reed.

"The Missouri Bar Association was organized in Kansas City in 1880, with Governor Willard P. Hall of St. Joseph as its first president. The following members of this bar have, in the order named, since been presidents of this Association, viz: John C. Gage, George W. McCrary, John F. Philips, Louis C. Krauthoff, Henry Clay McDougal, William B. Teasdale, Sanford B. Ladd, J. J. Vineyard, and the now president, Edward J. White.

Vol. 1-17

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"The oldest lawyer in Jackson county is Colonel R. T. Van Horn, now past 90. He was licensed to practice law by the supreme court of Ohio in 1848, and after coming to Kansas City in 1855, along with his editorial work as owner and editor of the Kansas City Journal, became a member of the law firm of Van Horn & Johnson, composed of himself and Judge Jacques W. Johnson, who later removed to Wyandotte, Kansas. But the Nestor of the bar, still in active and full practice, and frisky as a boy at the age of 87, is Colonel Louis H. Waters of Kansas City.

"Among the members of the Jackson county bar whose abilities have been recog- nized by the people with whom they cast their lots after leaving here, may be mentioned John P. St. John, twice governor of Kansas, and Ashley M. Gould, justice (for life) of the supreme court of the District of Columbia."

When a King Sued.

The supreme court of Missouri once held that a king could sue in the courts of this state. The suit was brought by King Frederick William IV, of Prussia, about 1849, or soon after Carl Schurz and the other Forty-eighters-"Acht-und- viertzigers" they were called,-migrated to this country when their plans to form a constitution for Prussia failed. One of these Forty-eighters was Knepper, the postmaster at Wermelskirchen. It was claimed that he brought with him some of the post office funds. The amount mentioned in the suit was 7,400 thalers. At that time the German thaler was worth about sixty-nine cents in United States money, making the amount involved some $7,000. Knepper died and the suit was prosecuted in the name of the king against the estate. The administrator of Knepper set up the demurrer that "the plaintiff has no legal capacity to sue in this court." Distinguished counsel were engaged on both sides. Charles Gib- son appeared for the king and Edward Bates and Britton A. Hill for the estate of Knepper. The St. Louis circuit court sustained the demurrer and found for the administrator. Mr. Gibson appealed and the supreme court of Missouri said :` "This case comes on a demurrer and raises the question whether a-for- eign sovereign can sue in our courts." After some further discussion the court decided: "The jurisdiction in cases of the character under consideration has not been exclusively vested in the federal courts; hence the state courts may still exercise jurisdiction in all such cases." The case was sent back to the circuit court.

For his successful conduct of this case Mr. Gibson received, as evidence of the King's appreciation, a pair of magnificent vases. Later he was the legal representative of foreign governments in several matters. In 1882, on the oc- casion of a visit abroad, Mr. Gibson was decorated by Emperor Francis Joseph of Austria. Still later he received, at the hands of Emperor William I, the order of the Prussian Crown and in 1890 he was given the grand cross by the late kaiser. These decorations came in the way of recognition for professional services rendered. But some time during the Cleveland administration, when Mr. Gibson's name was presented for a diplomatic appointment the fact that he had been thus honored with decorations proved a handicap, such was the feel- ing at the time that these decorations were anti-American. When the United States entered the war with Germany, the thorough Americanism of the Gibson family was demonstrated by the unsparing devotion of a descendant of Charles Gibson in the work of preparedness.

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Admission to the Bar.

The question of so strengthening the requirements of admission to the bar as to raise the standards of the profession received consideration at several of the annual sessions of the Missouri Bar Association. At one of these meetings George W. Barnett, of Sedalia, told the following :

"In our town a short time ago, a gentleman came from a little town in that same county ; and he was a lawyer there; he was practising. He had a family. I was on the committee who assisted the circuit judge in making the examination. This man who applied for admission to the bar didn't know what the statute of frauds was; he said it was a statute to set aside injunctions that had been procured by fraud. He didn't know what a negotiable note was; said it couldn't be sold. He had been practising before a justice of the peace. Of course, he wasn't given a license. He went around town criticising us because we had rejected him. He had some influential neighbors and they thought it was a case of spite work ; that the trouble was the jealousy of the local lawyers.

"W. S. Shirk-Did he have a license to practice?

"Mr. Barnett-He did have a license from the State of Kansas and had been prose- cuting attorney in that state for two years. He didn't know there was such a thing as a law of courtesy and when he was asked in regard to it, he had the idea it had some relation to husband and wife. He said it was the respect of a wife to her husband. That man has since been admitted. He came back with a second application backed up by the whole neighborhood who felt that the jealousy of the local bar was doing him an injustice."

Judge John F. Philips, as chairman of the committee on legal education and admission to the bar, emphasized necessity for this at the first annual meeting of . the Association in St. Louis in 1881. He said :

"In the olden time it was supposed that the way to the bar lay through long, weary years of preparation, requiring liberal scholarship and respectability of character, but in later years, particularly since the war, mere smartness, aptness in chicanery, and the emptiness of imprudent pretensions would seem by many to be deemed prime qualities. So that with the facilities afforded in a period of social restiveness, of marked commercial activity, when 'thrift' follows 'fawning' and gainmaking gives license to doubtful practices, charlatans and tricksters have rushed to the bar, until it is thronged with shysters and rascals, instead of only lawyers and gentlemen."

For a long time the Missouri method of admitting young lawyers to prac- tice was for the judge on the bench, to whom application was made by the can- didate, to refer him to a committee of those already admitted. Judge Philips said he had often seen candidates sent for examination by men "who, them- selves could scarcely spell, read and write, and who did not in theory or prac- tice know the difference between replevin and reprisal." Such committees re- ported in favor of the candidate, being afraid to examine the candidate thoroughly lest they show their own ignorance.

Judge Philips told of one case of a Missouri applicant who, being under the impression that admission was rather a matter of favor than learning of law, presented as "the basis of his fitness his discharge from the Federal army on ac- count of wounds received in battle."

When Judge Arnold Krekel of the United States district court of Jefferson City examined candidates for admission to the bar, one of his favorite questions was, "What is law?" He received a variety of answers. Giving his own defini-

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tion he would say, "Law is public sentiment crystalized. And if it isn't crys- talized, it is very poor law."

E. P. Rosenberger, who died at the age of eighty-five after nearly half a century of successful practice of the law in North Missouri, enjoyed telling the story of his admission to the bar in pioneer days. He had been one of the vol- unteer firemen in St. Louis and had moved to High Hill where he was in the business of making saddles and harness. One day he drove into Warrenton and learned that a pioneer named Powell had been admitted to the bar. "If Tom Powell can practice law, so can I," Mr. Rosenberger said. He applied to Judge Gilchrist then on the bench, for license. The judge appointed a committee of three lawyers to examine the candidate. These lawyers took the saddle maker into another room and asked him, "Mr. Rosenberger, do you know good whis- key?"

"I think I do," was the reply.

"Have you got the price of three drinks?"

The candidate led the way to a nearby saloon. The committee returned to the courtroom and reported Mr. Rosenberger duly qualified for practice at the bar. The license was issued. But Mr. Rosenberger applied himself to hard study of the profession and became one of the most successful lawyers of that part of the state.

The Missouri Common-Law Unions.

The early legislators of Missouri had ideas of their own on the subject of marriage. They engrafted on the statutes an unusually liberal provision for the recognition of common-law unions .. This provision long survived the march of statutory reforms. Missouri protected the rights of common-law wives and com- mon-law children to a degree not known in most states. The peculiarity of the Missouri code furnished the basis of an interesting decision of the Pension Office. A well preserved widow called upon the commissioner, and, presenting a let- ter of introduction from one of the most distinguished women of the country, told her story. She had married an officer in the army, and had borne him five children. During the time she lived with him her suspicions were aroused as to the relations her husband had sustained with another woman before she met him. The fears were dispelled by his assertion that, while he had lived with the other woman, he had never married her. After the officer's death, and when applica- tion was made for a pension, it was discovered that a previous marriage had taken place, which nullified the later ceremony, and stood in the way of the pension to the widow who had applied. In their search to get the facts which would show the applicant was not entitled to a pension because her marriage had not been legal, the pension examiners produced the evidence which removed the cloud from the second wife and the five children, and which furnished the basis for the allowance of the pension. They found that the first and only legal wife had died before the officer did, and that after the date of the first wife's death he had lived in Missouri long enough to entitle the second wife and children to their full legal rights under the common-law marriage provisions of the state. Had the time been spent in almost any other state of the union, the result would have been entirely different.

JUDGE DAVID TODD Territorial judge of Missouri and first circuit judge

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Missouri and the U. S. Supreme Court.

Missouri has missed representation on the United States Supreme bench nar- rowly several times. Judge David Todd was appointed judge of the Boone cir- cuit court by Governor McNair in 1821 and convened it under a sugar tree, there being at that time not only no courthouse but no building in Smithton large enough to accommodate the court. He was a very dignified man and punctilious. Gentry says that one day after dinner, Judge Todd fell asleep while on the bench. As soon as he awoke he said to the clerk, "Enter up a fine against David Todd, of ten dollars, for contempt of court. I will break up this habit of going to sleep, or I will break the court."

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Centennial history of Missouri (the center state) one hundred years in the Union, 1820-1921, Volume I, Part 29

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