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 53
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The Pettis bar has its death roll: George Heard, Gen. George R. Smith, Aldea A. Glasscock, Reece Hughes, W. H. Field, R. G. Durham, Charles M. McClung, A. C. Scott, W. H. H. Hill, Richard P. Garrett, George V. McCurdy, Henry C. Sinnett, A. M. Barrett, A. D. Fisher, W. L. Felix and A. C. Marvin.
Trained at this bar were young men who, seeking elsewhere for good luck in famne and purse, we consider still of us-John A. Lacy and G. C. Heard, of Washington; Henry P. Townsley, of New York; Graham Lacy, of St. Joseph; Franklin Houston and E. R. Marvin,
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of Kansas City; John Ferguson, of Osceola; Charles Botsford, of Kansas; Emmet Philips, of New York; George G. Vest, Jr., Victor E. Shaw, and W. S. Jackson, of Warsaw.
It would be obviously unjust and in bad form for one of their number to undertake a critical review of the working lawyers of the present Pettis bar, forty-eight in number-tlie perspective is too short for a realistic or recognizable picture. Some of us, like John Mont- gomery and George W. Barnett, have reached the happy dignity of having bright young sons, fresh from the inspirations of Princeton and Columbia, to assist us; some, like W. S. Shirk and George P. B. Jackson, liave reached the happier dignity of having their abilities paid for in regular salaries; some, like B. G. Wilkerson, have reached the calm heights of a stable and fixed income and view life through the eyes of a philosophier; somne, like John Cashman, W. D. Steele, P. D. Hastain, E. J. Smith, Charles E. Yeater, J. H. Bothwell, and James Montgomery, are in the heyday and hotfoot of keen activity; some, like Louis Hoffman and J. H. Rodes, bear themselves with the tranquil sedateness of assured success; some, like Judge Hoy and Judge Humphrey, illustrate the style and dignity of the old forum ; some, like H. T. Williams and W. A. Fast, work along special lines ; some of them, the boys of the bar, Lee Montgomery, Bruce and Orville Barnett, McVey, Hatch, Hunter, Bente, Wilson, Kennedy, Byler, Thomas, Kelly, Harry Sinnett, Shortridge, and the rest, are commencing with eager feet the steep path to fame and viewing its dangers and diffi- culties with the laughing eyes of youth; but none of them have been more blessed thian myself, in having for twenty odd years a partner like P. H. Sangree, who, giving no hostages to fortune, as Lord Bacon puts it, has been able to devote an intelligent and persistent care to the arduous duties of his business and correct, by his patient watchfulness, the effects of the whimsical moods of his associate.
The eldest member of our bar in full practice, as well as its inost systematic worker and best case lawyer and best judge of law, is John Montgomery, to whom, in connection with John T. Heard and Judge John F. Philips, I am indebted for whatever of real interest 111ay be found in this sketch.
Sedalia, Mo., August 23, 1897.
A CAUSE CELEBRE --- BIRCH VS. BENTON.
BY BANTON G. BOONE.
" 'Tis slander whose eye is Sharper than the sword; Whose tongue out-venoms all The worms of Nile."
THE judicial annals of Missouri furnish no more interesting and instructive history of forensic litigation than can be found in the celebrated scandalum magnatum action of Birch versus Benton. The distinguished dramatis personæ of litigants, attorneys and wit- nesses connected with this cause celebre and the personal and political features involved, at once renders it highly interesting and dramatic. An account of its history will, no doubt, be entertaining, if not amusing, not only to the legal profession, but to the laymen as well.
Macaulay's "Great Lawsuit between the Parishes of St. Dennis and St. George in the Water; " Dickens' "Jarndyce versus Jarndyce; " Dr. Warren's "Tittle Bat Tit Mouse Eject- ment" in "Ten Thousand a Year; " Dred Scott versus Sanford (reviewed by Benton him- self) , or "Woodard versus Dartmouth College," fall short of this case in distingue personnel.
Let us trace retrospectively this famous case through all of its singular and variant mutations, from its inception in 1849 to its final conclusion in 1858, covering a period of nine years, beginning in the Circuit Court of Buchanan County and ending in the Supreme Court.
On August 9, 1849, there was filed in the Circuit Court of Buchanan County, Missouri, a petition based on an action for damages for slander, wherein Col. James H. Birch, of Plattsburg, Clinton County, was plaintiff, and Col. Thomas H. Benton, the thirty years' Senator of Missouri, was defendant. The petition alleged that the defendant had in a pub- lic speech at Liberty, Clay County, Missouri, charged that the plaintiff had whipped his wife and knocked out three of her teeth, because she had remonstrated against plaintiff's illicit association with a negro wench belonging to plaintiff; and in the same speech and also at another place and time, had publicly called plaintiff a "sheep-killing cur dog." The damages were laid at $1,000.
A capias ad respondendum was served personally on Benton in Buchanan County, the 10th day of August, 1849, although the petition alleged he was a non-resident of the State, Benton at that time being a United States Senator of Missouri. A change of venue on the application of the defendant was awarded to Clay County.
In the first instance in the Buchanan Circuit Court the petition was signed by Loan, Archer and Lee, and the amended petition, filed in the Clay County Circuit Court, was signed by John Wilson, Benjamin F. Loan and Archer and Lee, as plaintiff's attorneys. An answer was filed by defendant through his attorneys, Henry M. Vories, James B. Garden- hire, H. L. Routt, Basset & Jones. The clerk of Buchanan County was William Fowler,
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
the Sheriff, William W. Reynolds. In Clay County Samuel Tillery was Clerk, Oliver P. Moss, Sheriff, George W. Dunn, Judge. This time, on the application of plaintiff, the case by change of venue was sent to Jackson County, when Samuel H. Woodson and James K. Sheley were added to plaintiff's list of attorneys, and William L. Wood to that of defendant. Henderson Young was Circuit Judge and Samuel D. Lucas, Clerk in Jackson County. The Circuit Judge having been of counsel in the case, a change of venue was awarded to Henry County.
There the case was finally tried at nisi prius on the 11th day of May, 1855, DeWitt C. Ballou, Judge (Judge Ballou's home was in Benton County), DeWitt C. Stone, Sheriff; Lewis H. Tutt, Clerk. The defendant's list of attorneys was here increased by the addition of the names of Waldo P. Johnson and Russell Hicks. The jury were Daniel A. Gillaspie, foreman; Ferdinand F. Summers, Patterson Gordon, Benjamin Goodin, Thomas J. Rock- well, Marshall S. Peelor, Benjamin L. Owen, Jesse W. Sharp, Matthew Wells, Henry Lotspiech, George W. Walker, James T. Teays, summoned on special venire, and all Whigs politically. Twelve of the sturdy and sterling yeomanry of Henry County composed this jury, and their verdict, which was for $5,000 for the plaintiff, attests the fact that they had a high and true appreciation of the value of character and the sanctity of the home, and that however exalted may be the private or public standing of a man, he cannot with impunity, bear false witness against his neighbor, or wantonly and maliciously assail with defamation the home and happiness of the family. They realized that
" The purest treasure mortal times afford, Is spotless reputation; this away, Man is but gilded loam or painted clay."
They have all passed to the tongueless tomb except Owen and Sharp, who still "sit on the lap of time," lionored and beloved of all their neighbors.
Col. Joseph Davis, now an octogenarian, and his aged wife, with elegant hospitality (sauvita in modo) entertained the Judge, lawyers and jury. To this aged and honored couple at their hospitable home in Vernon County, I send my greeting with the wish that the evening of their generous and useful lives may be serene and tranquil until they enter the celestial portal where the Good Shepherd forever infolds His own in the sweet pastures by the still waters of eternal life.
The usual motions for new trial and in arrest were inade and overruled, and the case taken on writ of error to the Supreme Court, where at the January term, 1858, it was reversed, Judge Richardson delivering the opinion, Scott, J., concurring, Napton, J., giving no opinion, and is reported in 26 Missouri 153. Judge John F. Ryland was added to the defendant's list of attorneys in the Supreme Court, making the completed roll eighteen in number, as follows: Loan, Archer, Lee, Basset, Vories, Gardenhire, Jones, Doniphan, Wilson, Hudgins, Routt, Wood, Sheley, Woodson, Hicks, Johnson, Young and Ryland.
By a singular coincidence and as if this case was enamored of greatness, the four coun- ties (locus in quo) wherein it domiciled for a time, are dowered with the names, and serve to eternize the fame and memory of four of America's grandest statesmen: The immortal Jackson, the great commoner, Clay, the profound diplomat, Buchanan, and the matchless Revolutionary orator, Patrick Henry. And the names of George Washington, Thomas Jef- ferson, John Marshall and King Ferdinand, as well as the Scriptural nomenclature of Daniel, Benjamin, Jesse and Matthew are to be found in the Christian appellations of the jury.
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A CAUSE CELEBRE-BIRCH VERSUS BENTON.
Among the witnesses who testified in the case orally or by deposition, were Gen. A. W. Doniphan, distinguished in military and civil life; Austin A. King, then Governor of the State, and afterwards member of Congress; Sterling Price, also Governor at the time of the trial, and formerly a member of Congress and Speaker of the Eleventh and Twelfthi Gen- eral Assemblies of the State of Missouri and the beloved chieftain of the Confederates in the late war. Governor Price as a witness, attended court one day, traveled 278 iniles, claimed his per diem and mileage, amounting to $14.90, which was adjudged against Birch, who paid it on execution under protest. Whether "Old Pap" ever returned the money, or whether Birch ever sued Price before a Justice of the Peace to recover it, does not appear in the record of this case.
William H. Buffington, then Auditor of State, and who subsequently returned to liis native State, Virginia, and died there, was also a witness, claimed one day's attendance and 504 miles of mileage and was paid $26.90, also under protest by Birch. What was the ultimate fate of the $26.90 is not disclosed by the record.
Maj. Nathaniel B. Holden, as gallant a knight as ever flashed a sword in the Mex- ican War, and for several years a Representative from Johnson County in the State Legislature and a Receiver of the Land Office at Warsaw, was also a witness, testifying in person on the trial of the case in Henry County.
William McKee, the then editor of the Missouri Democrat, and years after convicted and imprisoned for complicity in the great Whiskey Ring frauds in 1876, was a witness and testified by deposition and refusing to answer questions, was committed to jail by the Notary Public, Hon. Samuel A. Bennett, at one time Reporter of the Supreme Court.
Hon. James N. Burnes, then quite a young man, but destined to become one of the ablest members of Congress who has ever represented Missouri, was also a witness.
The name of John M. Clayton, then Secretary of State in the Cabinet of President Zachary Taylor, also figures in this remarkable record, the document bearing his official signature being impressed with the great seal of the United States and dates the seventy-fifth year of our National Independence. It may be interesting, at least to the legal profession, to know what service this imposing document could perforin in a slander suit in a Circuit Court of Missouri. It became necessary and essential in this way: At that time the law required the petition and answer to be sworn to, and Colonel Benton being in Washington City, inade his verification to his answer before one William Thompson, a Justice of the Peace, and being in the District of Columbia, his official character as such officer was certified to by the Secretary of State. On the day of its issue, July 10, 1850, Washington City and the entire nation were under a pall of gloom and grief at the sudden death of the illustrious chief magistrate, Zachary Taylor.
During the eventful and long-continued progress of this legal joust between these two intellectual giants, every form of pleading known to the common law or the code was re- sorted to and exhausted by their astute and skillful counsel. Motion for judgment on the pleading, to elect, to strike out, to make more specific, to exclude, to admit, to suppress, to change the venue, to set aside, to arrest, demurrer, rejoinder, sur-rejoinder, rebutter, sur-rebutter, and to continue, all attest the technical display of legal ingenuity and profes- sional pertinacity. The petition was amended by way of supplemental claim for damages, asking for $10,000.
The petition also charged Benton with publicly calling Birch a "sheep-killing cur dog." The answer denied the speaking of the words as charged, and averred that the words
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spoken were "sheep-biting cur," and it was not only edifying, but amusing to listen to the charming eloquence of Doniphan, the touching pathos of Hudgins, the impassioned diction of Rontt, the legal erudition of Vories, the cold, incisive logic of Johnson, the classical learning of Gardenhire, and the Websterian profundity of Hicks, in their brilliant and im- passioned efforts, with "exhalations whizzing in the air, " to show the Court the damnatory distinction between the words "killing" and "biting" when applied to a sheep, and, not- withstanding the maxim de minimis non curat lex, the difference, whatever it is, was allowed.
The depositions in this case also refer inter alia to the following distinguished names whose fame and history constitute a large and brilliant part of the pride and glory of the State: Edward Bates, Frank P. Blair, B. Gratz Brown, Thomas L. Price, James S. Rol- lins, William F. Switzler, Adamn B. Chambers, Nathaniel Paschal, Henry S. Geyer, Hallı- ilton R. Gamble, William B. Napton, John B. Henderson, James O. Broadhead, Willard P. Hall, Jolın S. Phelps, D. R. Atchison, Claiborne F. Jackson, Robert E. Acock, id genus omne, but fail to make any reference to the sheep, the cur, or the negro wench, presuin- ably for the reason of non-acquaintance.
The statutory process of collecting testimony through the medium of the deposition was invoked in all its amplitude, and to quote from Judge Sherwood in another case, was inade to be as "world embracing as the missionary hymn," reaching from "Greenland's icy mountains to India's coral strand." One deposition was taken amid the romantic scenes of the Susquehanna, immortalized by the genius of Fenimore Cooper, and one among thie scenic hills of the Catskills, so beautifully delineated by the charming pen of Washington Irving, and given by a lineal descendant of "Rip Van Winkle" who bore the Teutonic cog- 110111en of Essig. Another hailed from the golden shores of California, one from Waslı- ington City, and many from the rustic fariners of Clinton County, Missouri. Why the depositions of Mazzini, Garibaldi, Kossuth, Santa Ana, Lord John Russell, Queen Vic- toria, Louis Philippe, Baron Munchausen, the sheep, the cur dog and the negro wenchi (she "mought have knowed sumfin") were not taken, is left to speculative deduction.
The chirography displayed on the pleadings and papers in the case exhibit a marvelous familiarity with the science of hieroglyphics and a careless disregard of orthographiy, ety- m11ology, syntax, prosody and punctuation, and though more than forty years have passed, I still retain, with vivid recollection, my youthful efforts to decipher the record when making ont the transcript for the Supreme Court in 1856.
Among the attorneys who figured on the one side or the other (and it scems there were two sides to it) of this great and historic legal contest, are to be found names "that were 11ot born to die." Alexander Doniphan, whose name is illustrious in the military and civic annals of his country ; Henry M. Vories, who adorned the Supreme Bench of the State; James B. Gardenlire, one of the ablest of Missouri's Attorney Generals; Benjamin F. Loan, a member of Congress and a leader of the bar at that time in Northwest Missouri; Jolin Wilson, the quaint and honored Nestor of the law and the father of Hon. R. P. C. Wilson, ex-Speaker of the House, member of the State Senate and member of Congress, and wliose greatest legacy is the pure and sterling life of his honored father; William L. Wood, the very soul of honor and master of the law; Henry L. Routt, distinguished as advocatc, and pleader; James K. Sheley, the very embodiment of the astute lawyer, the sound jurist and the perfect gentleman; Samnel H. Woodson, member of Congress and often voted for by the Whig party in the Legislature for United States Senator; Prince L.
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A CAUSE CELEBRE-BIRCH VERSUS BENTON.
Hudgins, the gifted and accomplished orator, member of the Legislature and of the State Convention called to consider the relations between the State and the general Government in 1861; Basset, Archer and Lee (immortal namne), bright stars in this splendid galaxy of legal intellectuality, have left their impress on the legal history of their day and genera- tion; Russell Hicks (primus inter parus), quaint of speech, massive in intellect, leonine in physique and profoundly versed in law; Waldo P. Johnson (clarum et venerabile nomen), peerless as the lawyer and the man, Representative in the Legislature, Circuit Attorney, Circuit Judge, United States Senator, Confederate States Senator and inember and President of the Constitutional Convention; John F. Ryland, Circuit Judge, Repre- sentative and Supreme Judge, and whose professional and judicial life is one of the crown- ing glories of the profession of the law-those were the lawyers whose legal and forensic powers conducted the proceedings in this cause celebre through all of its remarkable and extraordinary judicial mutations. They have all passed in spotless ermine to the "inner court," leaving behind them stainless records and honored lives. They are the jewels of the State; the gems in the diadem of the profession.
The time allowed for argument was unlimited, and the "swelling scene" opened on the side of the plaintiff by Woodson, in the way of formal introduction, with the usual com- pliments to the jury and an oratorical delineation of plaintiff's character and defendant's malevolence, passing by sub silentio the evidence and instructions.
Routt followed with a vitriolic denunciation, in which he figuratively, at least, took the bark from plaintiff.
Judge Hicks followed, on the part of defendant, with an address of two hours and thirty minutes, in which he, with great power, discussed the Missouri Compromise of 1820, the compromise of 1850, the constitutionality of the Fugitive Slave Law, the Dred Scott decision, the Mexican War, the Gadsden Treaty, the Nicaragua Expedition, Squatter Sov- ereignty and the Kansas-Nebraska bill (these were current political issues of the day) and closed with a masterful eulogy on the life and public service of Andrew Jackson. (Hicks was a Whig).
He was followed by his colleague, Waldo P. Johnson, with a terrific philippic against the plaintiff, a vindication of free speech, free press, personal liberty, and taking up (mneta- phorically) the three teeth alleged to have been knocked out, one by one, "tooth by tooth," exhausted the science of odontology, denounced "Uncle Tom's Cabin," paid a glowing tribute to his illustrious client, and closed (with true Johnsonian tact) with an economic appeal to the jury to find against the plaintiff for causing so much waste of "precious time" and money by instituting such a frivolous and causeless prosecution.
Judge Sheley concluded for the plaintiff with a tear-inviting, "heaven-kissing" appeal for the countless posterity that were to be the future distributees of his client's char- acter.
I remember no reference to the evidence or the instructions.
During Judge Johnson's speech the following interpellation occurred: One David 0-1, commonly called "Hog" O-n, being in the court room, and whom the "conquering juice had steeped in soft and delicate lethe," was aroused by the passionate appeal of the speaker, arose and in native patois exclaimed: "Go it my little Johnson! Rise and shine, honey; live in the milk and die in the cream!" This risible interruption had its riant effect, and the speaker continued to "rise and shine."
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
I will now briefly refer to the individuality and personality of the plaintiff and defend- ant, keeping in mind the charitable maxims, de mortuis nil nisi bonum, and vitiis nemo sine nascitur-speak only good of the dead, remembering that no man is born without faults.
The plaintiff, James H. Birch, was born in Montgomery County, Virginia, March 27, 1804, and was in the prime of vigorous manhood at this interesting period of his life. He was possessed of a collegiate and classical education and endowed with a splendid intellect ; was a lawyer of eminence, an orator of merit and a pungent and caustic writer; versatile and finished in composition, refined and elegant in diction, and enriched his speech and writings with copious and trite quotations of Latin and from the classics. He was editor, lawyer, Representative and Judge, having served with distinction as State Senator, and was, at the time of the inception of this controversy, a member of the Supreme Court. He was tall, erect and commanding in person, polished in manner, fluent in speech, facile and sar- castic with pen, vain of his learning, influential in his party, a leader of Democracy, rest- less and impatient with ambition and vindictive and intolerant in disputation. Through all the vicissitudes of his active and eventful life, he retained unimpaired his vigorous consti- tution and robust health, "chastened by time, undimmed by age." "A combination and a form, indeed, where every god did seem to set his seal to give the world assurance of a mian." He died at an advanced age on his ample and beautiful estate amid his books, sur- rounded by his devoted household, venerated and beloved by his neighbors .*
" Though thou be as chaste as ice, as pure as snow, Thou shalt not escape calumny."
Thomas H. Benton, the renowned defendant in this interesting legal episode, was born (but not to die) near Hillsboro, North Carolina, March 14, 1782. He was, therefore, twenty-two years the senior of his plaintiff-adversary-nearly three score and ten, the tinie allotted by the Psalmist, when this "foolishness" began, though, like the plaintiff, he still retained all of his great mental and physical vigor, undimmed by age or time. He was educated at Chapel Hill University, North Carolina, and moved to Tennessee, served a terin in the Legislature of that State; came to Missouri in 1813 and was elected as one of the first United States Senators of this State in 1821, and continuously remained in that position until 1851, when he was defeated for re-election by Henry S. Geyer, a Whig, and retiring from the Senate was elected in 1852 to the Lower House of Congress, served one term and was a candidate for Governor in 1856, and died at Washington City, April 10, 1858.
I will not attempt a resume of his long and illustrious career as Senator for a period of thirty years. He was grand in person, grand in thoughit, grand in conception, grand in originality, grand in execution and grand in display of a statesmanship unsurpassed in the parliamentary history of the world. He stood the equal of either of the great triumn- virate-Calhoun, Clay, Webster. He was imperious, dictatorial and dominating in liis nature, lofty and self conscious in his convictions, far-seeing and prophetic in his warn- ings and predictions, patriotic to his country and devotedly true to the people of liis State, whom he represented so long and with such consummate skill and fidelity. For thirty years he stood all luminous and majestic as sponsor for the young Queen State of
* There is no more marked evidence of time's mutation than is to be observed in the circumstances surrounding the placing of the statues of Thomas Hart Benton and Frank P. Blair, in Statuary Hall, in the National Capitol at Washington. One member of the com- mittee of six appointed by the Missouri Legislature to go to Washington and accept the statues in behalf of the State was James II. Birch, of Plattsburg, a son of the plaintiff in this noted case. His colleagues who journeyed with him to Washington in January, 1828, were ex-Governor Stone, of St. Louis. Judge O. M. Spencer, of St. Joseph, Peter I .. Foy, of St. Louis, Mr. Cahoon, of Fredericktown, and Gen. Odin Guitar, of Columbia .- The Editor.
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