USA > Missouri > The history of the bench and bar of Missouri : With reminiscences of the prominent lawyers of the past, and a record of the law's leaders of the present > Part 2
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HEADQUARTERS. STATE OF MISSOURI, June 14, 1865.
Special Order:
1. The usurping Judges of the Supreme Court will be compelled to submit to the ordinance of the State Convention vacating certain offices.
2. David Wagner, Walter L. Lovelace and Nathaniel Holmes, will be put in possession of the Supreme Court room, in the Court House of the City of St. Louis, with all the records, seals, furniture, books and papers of the office of the Clerk of the Supreme Court.
3. Brigadier-General D. C. Coleman is charged with the execution of this order, and will employ such force for that purpose as he may deem necessary, and arrest all persons who inay oppose him.
THOMAS C. FLETCHER, Governor and Commander-in-Chief.
The laws were in force throughout the State; the civil tribunals were in the full exer- cise of their authority; the Constitution made by the Convention had not been voted on by the people; that instrument did not go into effect until the 4th of July following; the ordinance under whose authority this act of the Governor was exercised, had not been voted on by the people as was done in the case of the Railroad ordinance, nor was it ever voted upon; the action of the Governor was not taken in aid of the civil authorities of the State, but was, as it purports to be, the exercise of pure military power in time of peace. It is true that if laws and ordinances are to be interpreted by Judges, or even by the Legislators who framed them, and not left to executive or military officers to interpret and execute, there would be the perplexing difficulty of having two judicial tribunals antagonistic to each other and both claiming equal powers. In such cases, to solve the difficulty, the military assumes authority over the civil authorities and cuts the "Gordian Knot, " and justifies the act under the tyrant's plea of necessity.
One of the complaints against King George in our Declaration of Independence was that : " He has affected to render the military independent of and superior to the civil power." And this same Constitution of 1865, framned by the Convention which enacted the ordinance in question, had just declared: " That the military is, and in all cases and at all times ought to be, in strict subordination to the civil power." It is hoped that the "effacing finger of time " will never blot out the recollection of this event .*
Under the order issued by Governor Fletcher, Gen. Coleman appeared before the Court with a detachment of police, and Judges Bay and Dryden refusing to vacate their seats, they were removed by force, taken before the Recorder of St. Louis, and complaint filed against them for disturbing the peace. With this mixed exercise of military and judicial authority, closes this chapter in the judicial history of the State. The subsequent history of the Supreme Judiciary of the State is familiar to all, and we do not propose to pursue this subject fartlier.
* There is no difficulty in showing the difference between the action of the Convention of 1861, during the existence of actual war, and under the authority given it in the act providing for the election of its members, and that of 1865. There was no ouster of judicial offices by military force, and it was after an armed conflict the executive officers were driven from the State.
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REMINISCENCES OF FIFTY-FIVE YEARS OF PRACTICE.
There was something adventurous and exhilarating in the life of a young lawyer in Missouri fifty-five years ago, who commenced his career as most of them did, with a horse, saddle, bridle, and a pair of saddle bags as his only possessions, except perhaps, a copy of the Revised Code of 1835, Blackstone's Commentaries and a copy of Chitty's Pleadings. His ambition and his hopes were the incentives that stimulated his energies and opened up before him a bright future. For a while at least he depended upon his credit, and credit was freely given to any one who had an honest face, a correct deportment and indus- trious habits. It was a land of plenty so far as the necessaries of life were concerned, and when a young lawyer swept out his office, chopped his own wood and made his own fires, he was considered worthy of credit of one month's board at least. It is astonishing how men upon the frontier lean upon each other, and how freely and chcerfully they afford mutual assistance. If an emigrant comes from afar and enters a tract of land where he expects to make his home, he must have a cabin, and all the neighbors collect together on a certain day and give him "a house raising." A hunt or a frolic succeeds, and he begins to feel at home. And such was the conduct of the lawyers toward each other. There was no rule, or regulation against borrowing, and whatever his neighbors have that he has not, is at his service, except their wives, and these they would sometimes swap off, as I have been told by a lawyer of the olden times, who said that in one county in which he practiced, the inhabitants were of the opinion that there was not more than a cow and calf's differ- ence between any two women in the world.
When eggs were six cents per dozen, beef three cents per pound, wheat from fifty to sixty cents per bushel and everything else in proportion, a lawyer could not expect large fees. Ten Mexican dollars to try an action of forcible entry and detainer, the most important case before a Justice of the Peace, after riding a distance of twenty miles, was considered a good fee. In this connection I may state, as was said, that James R. Abernathy, of Monroe County, who for a long time was Prosecuting Attorney for that circuit, in his early professional career brought an action of forcible entry and detainer for a bee hive, and this being a case of more than ordinary character, his fee may have been large. Uriel Wright, then of Palmyra, and the most elegant and accomplished speaker in Northeast Missouri, was noted for his long speeches, particularly in the defense of criminals prosecuted by Abernathy as Circuit Attorney, and much given to repetition. Abernathy on one occasion said that Wright reminded him of a race horse, who was put upon the track to run a race four miles and repeat. The attorneys were not then limited in the argument of a case before a nisi prius court. It is true there were not so many cases before the courts, but they were more speedily disposed of. A demurrer or a case tried by the court without a jury was generally disposed of at once before the Judge left the bench, certainly not later than the next morning. They were not held under advisement in order that the Judge might find out some point upon which to decide the case, not mentioned or discovered by the attorney. The session of the courts lasted about three weeks on an average, and to postpone the decision of a case until the next term was considered a "denial of justice," in the language of Magna Charta. I recollect trying a case before Judge William A. Hall, at Mexico, in Audrain County, involving the title to an old Spanish grant of 6,000 acres of land, taken before him by change of venue from Pike, and he decided the case the next morning-and no appeal taken from his decision. He was considered one of the best nisi prius Judges in the State, as undoubtedly he was. As a man of great learning in his profession, of clear mind and of quick perception, he had no superior in the State as a
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
Judge. A Judge in those days would decide the case at once after hearing the arguments of counsel, without spending a month or two in reading the conflicting opinions of other Judges to be found in the reports. The fact is he could not help himself, for there were very few reports to be had, and he was compelled to follow the course of the judicial tribunals of Continental Europe, where as a general thing there are no reports of cases (and so much the better it is for the cause of justice), and therefore when the case was tried before a Judge, whether he was asleep or awake, on the trial he decided it at once. On one occasion a case was being tried before a certain Judge in Northeast Missouri and objection was made to a question asked of a witness. The Judge was asleep, as was some- times his habit, and after the argument of counsel on either side was made, one of the attorneys in a loud voice asked the Court whether the witness should answer the question. "Well," said the Judge, who had by this time been aroused, "let him answer the question. It may throw some light on the case." He really did not know what the question was, nor what had been said on either side of the controversy. This, of course, he was not willing to adınit, but did not wish to exclude any light that might be thrown upon the case-if an error it was on the side of justice.
Up to a late period the Judges of the Supreme Court were as prompt comparatively as the Circuit Judges. They never held a case under advisement for two years or more, until the arguments of counsel had been forgotten and they were compelled to study the case anew without the aid of the attorneys, who at least are generally as learned in the law as most of the Judges. They did not decide or ignore that declaration of the Bill of Rights which says that "Justice shall be administered without sale, denial or delay," and they did not act "in direct contradiction to those laws, which they are supposed to make the study of their lives, and which they are sworn to administer faithfully,"* for the Bill of Rights is as much a part of the law of the land as any other part of the Constitution. The docket may be crowded with a multitude of cases which cannot be disposed of, but of those which they are willing to liear, they ought to be ready to decide.
In the early days the professional business of one county was not sufficient to support three or four lawyers, and therefore like the Methodist preacher, they would have to ride the circuit. If a house of entertainment were on the route, they could have a good sub- stantial 111eal for twenty-five cents and the same for feeding a horse. As a matter of precaution, however, it was usual for a lawyer to carry a lunch stowed away in the corner of his saddle bags, in which he carried also his shirts and socks and court papers. Upon the broad prairies and through the silent woods, he would have an opportunity to study his cases, and apply to the questions involved those principles which he had learned from the text books, wlien books had been accessible, without knowing or caring about cases, except as they were to be found in the decisions of the Supreme Court of Missouri to be found in the Clerk's offices up to and including Volume VII. Or if other attorneys were in company, they would discuss questions of law as they had arisen from time to time in their professional career, and when the 11001-tide came and no house of entertainment in reach, and both horse and rider needed rest, the weather being suitable, he would dismount and partake of his lunch and if need be rest upon the green grass with his saddle for a pillow.
The prominent members of the bar of Missouri fifty-five years ago were: Greer W. Davis, General Nathiel Watkins, Albert Jackson and Thomas B. English of the South-
* Junius to Lord Mansfield.
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REMINISCENCES OF FIFTY-FIVE YEARS OF PRACTICE.
east ; Hendricks, Waddell, Claude Jones* and Phelps of the Southwest; French, General Doniphan, Ryland, Hicks, Gardenhire, Craig and Stewart, Samuel H. Woodson and Ben Stringfellow and Bela Hughes of the Northwest; Carty Wells, Uriel Wright, Samuel T. Glover, John D. S. Dryden, Thomas L. Anderson, Dick Richmond and James S. Green of the Northeast; Porter and Buckner of Pike ;. Campbellt and Coalter and Cunningham and Krekel of St. Charles. From the central portion of the State there were Abiel Leonard, who had no superior as a jurist in Missouri or the United States, and Davis and General John B. Clark of Fayette; Rollins and the Gordons from Boone; Jamison and Hardin from Callaway; Winston and Thompkins and Hayden and John G. Miller from Cooper. From St. Louis and vicinity there were John D. Stevenson, W. V. N. Bay and Charles Jones of Franklin; Hamilton R. Gamble, Edward Bates, Henry S. Geyer, Thomas B. Hudson, R. S. Blennerhassett, Charles S. Rannels, Myron Leslie, Trusten Polk, Josialı Spalding, Beverly Allen, Wilson Primm and Thomas H. Benton of St. Louis.
Benton, however, had long since ceased to be a lawyer in active practice; indeed, lie was always engaged actively in politics from the time he was first elected to the Senate when Missouri was admitted into the Union. Haughty, domineering and egotistical, but able and well informed in the political history of the country, he was able to control, and did control the politics of the State for nearly thirty years, and when a portion of his party finally forsook him he attempted no conciliation, but defied and denounced them in the bit- terest terms. No man in Missouri since his day has had the devoted political following that he had. The members of the old Whig party, however, asked him no favors. They were his implacable political foes. He generally spoke of himself in the third person. Old inan Daniel Draper of Auburn, Lincoln County, came to Missouri Territory at an early day, and living on the main State road from St. Charles to Palmyra, kept a house of enter- tainment for travelers, and was an intense Whig. On one occasion Colonel Benton rode up toward the close of the day and found Mr. Draper chopping wood, and hailing him, said, "Senator Benton wishes to stay all night with you." "Get down and hitch your horse," said Draper, "we are not particular about whom we entertain."
In 1849 Colonel Benton appealed to the people of the State from the instructions of the Legislature, embodied in what were called the Jackson Resolutions. He canvassed the whole State and denounced the resolutions and those who favored them, in the bitterest terms, as breathing secession or nullification and calculated to bring about a dissolution of the Union. He was appointed to make a speech at Fayette, the county seat of Howard County, the home of Claib Jackson and the headquarters of the political clique of Den- ocratic politicians who had organized an opposition to him, in order to defeat his re-election to the Senate. Judge J. W. Henry, now one of the Judges of the Circuit Court for Jackson County, has given mne an account of that meeting. He says he was approached by some of the anti-Benton men and urged to answer Benton, as Claib Jackson was not there, "but I
* Claude Jones of Neosho was a man of vigorous intellect and a vigorous eater. He was called the " Quapaw Chief " from the fact that at every session of the Legislature of which he was a member, he introduced a memorial to Congress for the annexation to the State of the Quapaw Country, lying between the Southwest border of the State and the Grand River of the Arkausas. I served with him as a member of the Constitutional Convention of 1845-46, and during the session a challenge to fight a duel passed between him and General William Shields of Lexington. The controversy between them was settled by mutual friends.
William M. Campbell of St. Charles, afterwards the editor of the New Era of St. Louis, which was merged into the Intelligencer, was one of the ablest lawyers of the State, for many years a member of the Legislature from St. Charles, and of the Convention of 1845. and was one of the most useful Legislators we ever had. Always at work, full of legal, political and historical information, his head a storehouse of learning, always ready to assist others, for fifteen years-from 1835 to 1850-he must have drafted two-thirds of all the bills that were submitted to the Legislature during that time; but so soon does the memory of great and useful men pass away that very few now living know that such a person ever existed.
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
told them I would as soon enter the cage of a lion. Jackson, when Benton spoke within forty miles of Fayette, would go to answer him, but always waited until Benton got one hundred yards from the place of meeting before he ventured to take the stand, and when they insisted that I should reply to Benton I said, alluding to Jackson's careful habit, that if they would just wait until Benton got half way to Boonville on his return, I would give him hell. Benton heard of it and I was told by Dr. Thomas of Boonville, his friend, that when he heard it he was so pleased with the reply that he said he would like to know me." Judge Henry further says, "I am ashamed that I was ever against him. He was right in his controversies with the antis, and his speeches in this canvass were the most magnificent I ever heard. I heard him at Fayette, Rockport and Boonville and I never let an occasion pass to hear him." Judge Henry was then a young man. He has since been for many years a Justice of the Supreme Court of Missouri, which office he filled with distinguished honor, and is now, and has been for many years, Judge of the Circuit Court of Jackson County. Able, just, brave and true, he has ornamented every position he ever held, but he was not rash or fool-hardy even when a young man and frankly tells the truth of the inci- dents which took place on the occasion referred to. Benton was always a terror to his political enemies throughout the State, in his appeal to the people in 1849. But few of them have been frank enough to acknowledge it.
I was a member of the Missouri Legislature in 1850 and 1851, when Benton made his last struggle for a continuance of his term as Senator, and when Mr. Geyer of St. Louis, was elected by the aid of the votes of Anti-Benton Democrats. It was the struggle of a strong man against adversity, and came very near being a drawn battle and a failure to elect. In that case, Governor King, who was the friend of Benton, would have appointed him Senator. It has since been decided, however, that in case the Legislature fails to elect, an appointment by the Governor would be without authority, and there would be a vacancy until the next session of the Legislature. Colonel Benton was not at the Capital during the contest, nor were any of the candidates present, it not then being deemed respect- able. Stewart of Buchanan, afterwards Governor, was the first who led off and voted for Mr. Geyer, and on the fortieth ballot, after a bitter contest of eleven days in the joint session, Mr. Geyer was elected. Benton was undoubtedly one of our greatest statesmen. In 1828 he and the Hon. Edward Bates, then a member of Congress from Missouri, had a personal difficulty, and for twenty-five years they passed each other without speaking.
The members of the bar whom I have mentioned, and some of whom took active part in the organization of the State government and in its administration afterwards, have without an exception passed away. Many of them were highly distinguished as statesmen or lawyers, or botlı. I shall inake no comparisons, but such men as Bates, Gamble, Geyer, Leonard, Glover, Wright, would have stood in the front rank of the profession in any State of the Union. I may be pardoned for making special mention of the Hon. Edward Bates, my preceptor and friend. I was in his office and lived with his family for three years as a student. He was known to me in all the relations of life; as a citizen, father, linsband and friend, he was able, honest, learned in his profession, courteous and kind- licarted in his intercourse with his fellow-inen; as an advocate at the bar, and in the field of political controversy he was always eloquent, and gave to his hearers the impression that he was sincere and truthful, as he always was. Morally and physically, his personal courage never was and never could be questioned. He has held and he has refused high offices of public trust in the nation. In conjunction with his personal and political friend, David
17
REMINISCENCES OF FIFTY-FIVE YEARS OF PRACTICE.
Barton, he was one of the active and efficient members of the Convention which framed the Constitution of 1820. Joshua Barton was his partner in the practice of the law when he was killed in the duel by Thomas Rector. David was President of the Convention, and was elected without opposition as the first Senator from Missouri, Colonel Benton being afterwards chosen as his colleague. Edward Bates was offered a position in President Fillmore's Cabinet, but declined to accept the appointment, and when Mr. Lincoln was elected he was appointed Attorney-General. He has ably and faithfully served his country in every public position that he ever held, and died a true patriot and a devoted Christian.
It is impossible for mne to allude to the characteristics of all the prominent attorneys above mentioned as members of the bar fifty-five years ago, most of whom I knew personally. Jim Winston, of Boonville, originally from Buncombe County, North Carolina, was a peculiar character, a man of kind heart, great ability and jovial disposition. It was said of him that he never collected a debt and never paid one. This of course was not true, but he never cared for money and had no business capacity. In 1852 he canvassed the State, on foot, for the office of Governor, for which place lie had been nominated by the Whig party, but was beaten by Sterling Price. He was never married, but while in the State Senate his affections leaned very decidedly towards a beautiful and accomplished widow then residing at the Capital, but at that time Frank Blair was a member of the House, and it was said that his affections were so much divided between the two that he never whispered a tale of love to the widow. No man was ever more attractive than General Blair.
General John B. Clark, of Fayette, was a very successful practitioner. He was what was called a good jury lawyer; his sympathies were so much enlisted in behalf of his client as to bring tears to his eyes, no matter whether the controversy was one about the value of a horse, or the trial of a man for murder. It was then perfectly legitimate for a lawyer, a juror, or even a bystander to cry in the trial of a case, but he was not allowed to bellow. About the time I came to the bar the celebrated case of Bryson vs. Bryson, for divorce, was tried in Pike County, Missouri. There was quite an array of counsel on either side, amongst whom were Edward Bates of Missouri and Edward Baker of Illinois-the same General Baker who was killed in the late war at the battle of Ball's Bluff. Baker was remarkable for his eloquence. Whilst lie was making one of his most pathetic appeals to the jury, one of the audience, Squire James Turner, a man over six feet in height and weighing about three hundred pounds, bellowed like a calf under the influence of Baker's oratory. The Judge immediately said: "Take that inan out, Mr. Sheriff!" Turner, see- ing the Sheriff coming towards him, cried out: "I think I can stand it now, Judge!" and he was permitted to remain, but the incident broke the charm of Baker's appeal, for the audience and the jury engaged in a laugh at Turner's ludicrous appearance. Turner after- wards moved to Texas and carrying with him the title of Squire, was soon exalted in the judicial scale by the good people of Texas and called Judge Turner, which honorable title he carried with him to the grave.
In the early settlement of Howard County by the American population, old Franklin became the rendezvous of the most prominent lawyers of the State outside of St. Louis. Hamilton Gamble, Leonard, French, Ryland and Hayden were there amongst others. I have recently heard of an incident connected with the lives of Gamble and Leonard, which I never heard before, but it was told by an old member of the Missouri bar as coming to him from Mr. Leonard himself. It was to the effect that a challenge to fight a duel had
18
THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
passed between French and some other inan whose name, if Mr. Leonard had told him, he had forgotten. Gamble and Leonard were the two seconds. The agreement was to fight on Chenal Ecarti (Sny Carty), an island in the Mississippi opposite Louisiana, in Pike County, about sixty iniles long, then and still under the jurisdiction of Illinois, but then totally uninhabited. It seeins a great distance to ride from Howard County on horseback to fight a duel, but not half the distance that Mr. Leonard traveled from Howard County when lie fought the duel with Major Berry and killed him, near New Madrid .* They arrived at Louisiana about nightfall, and all stopped at Marshal Man's hotel, the only house of enter- tainment in the place. That night they got to drinking, all became more or less intoxicated, made friends, broke off the duel and took the back track next morning for old Franklin.
For a long time afterward, old Franklin remained the seat of empire in Western Mis- souri, but old Franklin, like many a stalwart monarch of the forest, yielded to the rushing current of the Missouri River, and was finally washed away in a June rise by the waters of tliat turbulent stream and a new town founded and incorporated by an act of the Legisla- ture in 1833, farther back from the river, called new Franklin, which, as subsequent events have shown, became more historic than the old town. New Franklin wanted to build a railroad from the town to the Missouri River, and in 1833, by the act of incorporation, the Legislature authorized the Trustees of the town to create a lottery for the purpose of raising money to build a railroad from the Missouri River to the town, the amount not to exceed the sum of $15,000. In 1839 the Legislature amended the charter of the town by providing for the construction of a macadamized road instead of a railroad, at the discretion of the Trustees of the town, and adopting the provision of the act of 1835, by which the Sisters of Charity of St. Louis were authorized to make a contract with any person to establish a lottery and sell lottery tickets for the benefit of a hospital, the Trustees of new Franklin were authorized to establish a lottery to raise money for the building of the road. The validity of the latter act and the power under it has been passed upon by the Supreme Court of Missouri, by which it was held to be valid, the contract being inviolable under the provisions of the United States Constitution. So the Trustees of new Franklin in 1842 made a con- tract witli Gregory, by which he agreed to sell lottery tickets, and from the proceeds of the sale lie was to pay them $250 per year for road construction. Under this agreement it would take sixty years to raise $15,000. During the session of the Missouri Legislature of 1842, an act was passed repealing all laws on the subject of lotteries, and making it a penal offense to sell lottery tickets. Under this contract with Gregory thousands and thousands of dollars were made by the sale of lottery tickets. In 1852 or 1853, Morrow, one of the lottery agents, was indicted in St. Louis under the penal clause of the act of 1842, for the sale of tickets. The case went to the Supreme Court and was decided in 1855 in favor of Morrow, upon the doctrine hield in the Dartmouth College case, viz: That the act of the Legislature of 1842 impaired the obligation of the contract made with Gregory and his assigns. The jury in the court below had found a special verdict, setting out all the facts of this case, which is reported in Twenty-sixth Missouri reports. And so the lottery lived on. In1 1865 the State endeavorcd to abolish the lottery by Constitutional provision, and the Drake Constitution declared that : " The General Assembly shall never authorize any lottery; nor shall tlie sale of lottery tickets be allowed; nor shall any lottery heretofore authorized be permitted to be drawn, or tickets thierein to be sold."
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