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 54
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1.
Thomas A. Denton
383
A CAUSE CELEBRE-BIRCH VERSUS BENTON.
the West, bidding her to be of good cheer and pointing hopefully to the ultimate con- summation of her glorious destiny, and inspiring her stately sons and bright-eyed daughters to noble actions by the resplendeut light and unerring guidance of his imperial genius.
At the time of the conclusion of this legal contest in which he was a prominent and picturesque personality, his "star had approached and passed the zenith of its power, but we could discern no paling of its intellectual fires. It was still shining with an effulgent radiance, not dazzling and brilliant as in its meridian splendor, but like the mellow light of the harvest moon, calm and peaceful." It soon passed away, and what- ever may have been the merits of this famous controversy all can join in wishing
" Peace to the just man's memory, Let it grow green in the lapse of time And blossom through the flight of ages."
In concluding a review of this remarkable case, may it not be asked why and for what purpose all this splendid display of judicial and forensic talent, great litigants, great clients, eminent jurists, accomplished and gifted lawyers, patient and laborious officers, vast expense of money and time, long continued strife and an abiding the law's delay. Stripped of "form and circumstance," disrobed of legal verbiage and attractive phraseology and, to use a familiar expression of Colonel Benton, "putting the knife to the nerve" of inquiry and discovery and going direct to the heart and gravemen of the case, it is found in the simple question : "Did 'Tom' Benton call 'Jim' Birch a sheep killing, or sheep biting cur? "
And that momentous query has not yet been judicially determined, and never will be in court terrestial. Parturiunt montes, nascitur ridiculus mus.
This is Birch versus Benton, and if any doubt its entire accuracy in "form or sub- stance," they are referred for satisfaction of their incredulity to the absolute verity of the record.
Clinton, Mo., January, 1898.
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PERSONAL RECOLLECTIONS.
BY JOHN W. HENRY.
THE subject of the bench and bar of Missouri is a favorite theme with lawyers, and so inuch has been spoken and written about Judges and lawyers of Missouri who have won distinction and honor, that it is difficult to say anything that has not been said before. Having resided for fifty years in the State, I have been intimately acquainted with many leading members of the bar, and slightly acquainted with nearly all of them.
In 1845, when I landed at Boonville, James Morrow was Judge of the Boonville Circuit, Jolın D. Leland of the Howard Circuit and John F. Ryland of the Saline Circuit, which embraced Jackson County.
The circuits were large and the lawyers rode them, not as now, in railroad cars, but on horseback, in buggies and on buck boards, for there was not a railroad in the State, and excluding the cities and towns, not twenty miles of turnpike or plank road. Missouri was then in the rough, but no people enjoyed life more. The woods were full of game and the rivers of fish, and on the open prairie near Boonville I have seen as many as fifteen or twenty wild deer in a herd. The old hollow trees furnished the richest honey, and but little labor was required to produce abundant crops of corn, oats and wheat. There were no daily newspapers, or telegraph, or telephone lines. The people were hospitable, gen- erous and happy, for avarice had not then spread its baneful poisons through all the arteries of trade and social life.
Boonville was then one of the most important and prosperous towns in the State, and the lawyers of Boonville were among the foremost men at the Missouri bar. Hay- deu, Adams, Richardson, Winston, Miller, Thompkins and Stewart were men of ability, and agreeable, courteous gentlemen. Richardson and Adams were afterwards on the Sit- preme Bench. Adams was one of the best lawyers in the State, and Richardson one of the best Judges who have occupied positions ou our Supreme Bench. He was not as able a man as Adams, but ranks him as a Judge.
It is singular that the best lawyers do not always make thic best Judges. With a few exceptions, our Judges of the Supreme Court were not distinguished at the bar, before their elevation to the bench, and but few of those who at the bar were in the lead, added to their reputation by their work on the bench. Hamilton R. Gamble was one of the pro- foundest lawyers in the Mississippi Valley, but added nothing to his reputation on the bench. Neither did Judge Adams, who was unquestionably one of the ablest jurists in the State. Whether they relied too much on the reputation they had already made at the bar, or why they cither lost or added nothing to their reputation by their judicial service, is a problem which I cannot solve.
Neither Judge Napton nor Judge Scott had distinguished himself at the bar, and yet they were among the most cminent Judges in the United States. Judge Leonard was an
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PERSONAL RECOLLECTIONS.
exception. He stood first among the lawyers of Missouri, served but a short time on the Supreme Bench, but his opinions delivered during his brief judicial career are monuments to his learning and genius. They are among the ablest ever promnulged by our Supreme Court, or any court in the United States. He was a marvelous man-learned, energetic, industrious, absolutely honest and brave to heroism, and would have adorned any judicial position in England or America. As in my judgment, he was not only one of the greatest lawyers in Missouri, but in the West, I may be pardoned for relating a few incidents in his life which illustrate his character.
He came to Missouri from the East exceedingly poor-so impecunious that, it is related of him, that he taught school near Old Franklin, and himself washed his own clothes in Bonne Femme, a small stream that runs through the old town and discharges itself in the Missouri River below Boonville.
Shortly after he came to the bar, he gave offense to Major Berry, a prominent and influential man, in some lawsuit in which Berry was concerned, and Leonard was the opposing counsel.
Berry was a very large, powerful man. Leonard was undersize, not at any time weigh- ing to exceed 130 pounds. After court adjourned, Berry assailed him with a horsewhip. Leonard was unarmed, but did the best he could, and after the conflict was over, went to his office and challenged Berry, who accepted the challenge to fight with duelling pistols, on Bloody Island, where they met and Berry received a mortal wound of which a short time afterwards he died. Leonard's second in that affair was Thomas J. Boggs, brother of Lilburn W. Boggs, at one time Governor of this State.
About the year 1840 Claib F. Jackson was challenged by Gen. John B. Clark, for some sarcastic criticism by Jackson of a letter written by Clark, in which Clark spelled the word "rascal" with a "k" instead of a "c." Jackson accepted the challenge to fight with rifles, in a very few days, on the Bonne Femmine, within a mile or so of Fayette, where they both resided. Jackson was an expert rifle shot, while Clark could not hit a barn door at twenty paces. Leonard was Clark's second, and wouldn't let Clark fight Jackson on the terms proposed, as I learned from Judge Leonard, when on one occasion, talking of the difficulty, I remarked that I thought that Clark rather showed the white feather in that affair. Leonard fired up immediately, and informed me that he had not and that he himself advised Clark in the matter; that Jackson's proposition to fight with rifles, almost within sight of their respective residences, was brutal and barbarous. Of course I had no more to say.
At the time of our conversation, he and Clark were not on the inost friendly terms with each other. Judge Leonard was abrupt in his manners. He was not what society people would regard as a polished man, but his abruptness and uncouthness was all on the exterior. He had a warmn, generous heart, and was in his feelings a very refined inan. I never heard him use an obscene word in my life. In swearing, however, when a little excited, he would have held his own with the army in Flanders.
Thomas L. Anderson, of Palmyra; Uriel S. Wright, of Palmyra, who afterwards located in St. Louis; Alexander W. Doniphan, of Clay; John B. Clark, of Howard, and P. R. Hayden, of Cooper, were distinguished as advocates. Hayden was also an excellent lawyer, and while the others did not rank with Leonard, Geyer and Hayden, as lawyers, they had no equals at the bar as advocates. Anderson was earnest and eloquent. Wright was one
386
THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
of the most accomplished men in the West, and some of his forensic efforts were equal to those of Curran or Grattan.
Doniphan was a majestic man, upwards of six feet high, bearing some resemblance to Henry Clay; and on the stump or addressing a jury, one of the most adroit, skillful and powerful men I have ever heard.
John B. Clark was a diamond in the rough. With but little education or culture, he was one of the most successful advocates in the State. In Howard, Randolph, Boone, Macon and Cooper, he was almost omnipotent in jury trials.
In 1847 William A. Hall succeeded John D. Leland as Judge of the Howard Circuit, and was a man of great ability. His brother Willard, a few years his junior, was the better lawyer, because a inan of more application and industry, and for a number of years was the leading lawyer of Northwest Missouri, with few superiors in the State.
Broadhead was then a young man, rapidly reaching the front rank of lawyers, and leaving Pike County he located in St. Louis, where very soon he was recognized as one of the ablest lawyers at that bar. He is a man of remarkable intellect, and the ablest argu- ments I ever heard as Judge of the Supreme Court were made by Colonel Broadhead. He is not only learned in the law, but is a scholarly, cultured man, without a particle of pedantry, and one of the most guileless inortals I ever knew. He has no malice, or envy in his composition, and has a heart full of love and kindness for mankind.
Sauiuel T. Glover went from Palmyra to St. Louis, where he outranked all others at that bar. As a constitutional lawyer, I do not think he had a superior in Missouri or in the West. He was a very earnest man in any case in which he was retained or any cause he espoused. He was nervous and irritable, but the very soul of honor.
Vories, at one time a Judge of the Supreme Court, and Silas Woodson, who served a term as Governor of the State, and was recently Judge of the Criminal Court of Buchanan County, occupied enviable positions at the bar. Vories was a very able man, with a limited education, but by application overcame that difficulty, and took his place among the forc- most members of the bar of the State.
In 1854, as State Superintendent of common schools, I visited Platte County officially. The Circuit Court was in session, and my old friend, Elijah Hise Norton, was on the benchi. I knew him slightly before I went to Jefferson City, and served a terin with him on the Suprenie Bench. Norton is a man of a vast fund of common sense, and that was his forte as a Judge. There is no foolishness about him. He takes up a subject for investigation and discards everything that does not tend to elucidate and moves right on to a conclusion. He was a popular Judge, and a courteous and agreeable associate.
At Lexington were French and Sawyer. French had a high standing at the bar, but I never had the pleasure of his acquaintance. Sawyer was then a good lawyer, and after the war located at Independence, and was for some time Judge of this judicial circuit. He was a lawyer of fine attainments and an excellent man.
At Independence were Hicks, Hovey, Smart, Chrisman and Comingo. Samuel H. Woodson had virtually retired from the practice of his profession when I located at Inde- pendence, and therefore I cannot speak of his attainments as a lawyer, but of his kind licart and generous nature I could speak, nor say too much.
Hicks ranked high as a lawyer, but I could never perceive his superiority to Hovey, Chrisman or Sawyer, and always thought him overrated. Hovey was a genius, a rcinark- able man, an excellent trial lawyer and well versed in the law. Chrisman, taking him on
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all parts of the ground, was one of the best lawyers in the State; and Comingo, for many years his partner, not perhaps his equal in learning or ability, surpassed him as he did nearly every one else, in courtesy and kindness. He was a royal fellow and had a great big heart.
Robert G. Smart, at one time Judge of the Jackson Circuit, and holding that position when he was murdered by a squad of Federal soldiers in Saline County, where he had gone to get out of trouble and for a little recreation, was not a very able lawyer, but was an amiable, excellent man, of the strictest integrity. And of all the atrocious murders com- mitted in this State during that infernal war there was not one less excusable than that of Judge Smart. There was not a particle of malice or meanness in his nature. He was a prudent, inoffensive man, and had as kind a heart as ever beat in a human bosom; and I have often thought, if there was no hell before the war one ought to have been improvised for such scoundrels as, in cold blood, without the slightest provocation, murdered such men as Judge Smart and Colonel Field, of Saline County.
Benton was a member of the Missouri bar, as was Atchison, but neither of them ever made any great mark as a jurist, although Atchison was at one time, I believe, a Circuit Judge. Benton inight have been a great lawyer, but political life was inore congenial to his nature. His was a grand character. He had a massive brain, and now that the heat of the political conflicts in which he was engaged in Missouri has disappeared, all men, of all parties, must recognize Benton as one of the ablest statesmen whom this country has produced. He was an imperious, domineering man, of iron will, determination and cour- age, but honest to the highest degree. Atchison was not his equal, but was a inan of fair ability and popular with the people of the State and his associates in the United States Senate, but for his popularity was indebted more to his social than his intellectual qualities.
James S. Green did not have high rank as a lawyer when elected to the Senate of the United States, but afterwards developed into a very superior lawyer. He had wonderful tact as a debater, and was the only man in this State who was anything like a match for Benton on the stump. He was skillful, ingenious, humorous, and full of nerve and energy, and Benton found on the stump in Missouri, as Douglas did in the Senate of the United States, that it required more than a little giant to overcome himn .*
There were many interesting characters among the old lawyers of Missouri. Many of them I knew personally, others only from reputation. I knew Doniphan, Atchison and all the men I have named, except Benton and French, personally. I never had the honor of Benton's acquaintance. I never saw him until 1849, after the inauguration of the anti- Benton war in Missouri, in which I enlisted against him -like an ass- for which I have a thousand times felt like kicking myself for a fool. He was unquestionably right in that controversy. I see it now; and his public addresses in the wonderful canvass he made in Missouri were full of prophecies which have been fulfilled to the letter.
It has taught me a lesson -never to espouse a cause so warmly as not to admit the possibility that I may be in error, and I submit it as a wise rule for your guidance through
* On page 65 of this work occurs an error respecting Senator Green, which the author, Mr. W. O. L. Jewett, desires the editor to correct. Misled by Judge Bay's "Bench and Bar of Missouri," and other authorities, Mr. Jewett there states that Mr. Green was expelled from the United States Seuate in 1861, because of disloyalty. On investigation of the records at Washington, Mr. Jewett found that the Legislature of Missouri failed to select a successor to Senator Atchison on the expiration of his term in 1854, and that there was therefore a vacancy until Mr. Green was chosen in December, 1856, or January, 1857. The fact that he was elected to fill an unexpired termin, which ended March 4, 1861, and that he served but four years, is perhaps responsible for the error that he was expelled from the Senate on account of his secession views. According to the best information now at hand, Mr. Green lived, at different times, in both Canton and Monticello, Lewis County .- The Editor.
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
life. If all men would act upon it, proscription and persecution would have no place on tlie eartlı. We are none of us infallible; but all of us sometimes conduct ourselves as if we thoughit we could not possibly be mistaken.
Of the bench of Missouri, I may say that hitherto it has been as free from the taint or suspicion of corruption as that of any State in the Union; and of the bar, that it is com- posed of as manly, fair-minded men as are to be found on this continent.
There is another lawyer of whom it always affords me pleasure to talk. He was in1y school-fellow and lifelong friend, personally known to many, and beloved by all who knew him.
James J. Lindley came to Missouri in 1843 and located in Lewis County; was elected Prosecuting Attorney for that judicial circuit, in which, as in all other official positions occupied by him, he acquitted himself with credit. He represented his district two terins in Congress, for the first term defeating, in a Democratic district, C. F. Jackson, one of the most popular and prominent Democrats in the State. Some time in the 'fifties he went to Davenport, Iowa, and was associated with John F. Dillon in the practice of his profession. Afterwards he returned to Missouri and located in St. Louis, where he soon became a prom- inent member of the bar. He was elected one of the Circuit Judges, served several years in that position, resuming the practice when he retired from the bench, and a few years before his lamented death made his home in Kansas City.
He was a successful man, and at his death left a large estate. When lie made his canvass for Congress against Jackson, he was one of the best stump speakers in the State. He was not only humorous, but logical and eloquent, and had a vast fund of information, and knew just when and where to use it. He was an amiable, lovable man. It was in lis canvass with Jackson that I first met him after we parted in Kentucky. He was a Whig, I was a Democrat, and it was a painful duty, as I then regarded it, which forced me to vote for Jackson against him. I was a Delegate to the Congressional Convention which nominated Jackson; but if I had not been, I was then such an arrant partisan that I would have voted against my old friend. He was a noble man, generous and unselfish, candid and honest.
Major Rollins, of Boone County, was a member of the bar, but, like Benton, pre- ferred political to a professional life, and I think it a matter of regret that he did not stick to the law. He had the capacity to be a great lawyer; was one of the best public speakers in the United States, and when he and James S. Green met on the stump, it was a meeting of giants.
George G. Vest came to Missouri from Kentucky a few years after I did, and located in Pettis County as a lawyer. The first time I ever met Vest was at a State fair in Boon- ville, where he had on exhibition a magnificent Kentucky jack, with which he took the premium, and, in a different field, he has been taking premiums ever since. He was at one time a partner, in the practice of his profession, of Joseph L. Stephens, of Boonville, father of Gov. Lon V. Stephens, who was named for Vest-Lon Vest Stephens. Vest after- wards returned to Pettis County, where lie and Phillips for awhile, and afterwards Hicks, were associated in the practice. Phillips and Vest are both good lawyers and superb advocates.
Thomas T. Crittenden first located at Lexington and finally at Warrensburg, where lic and Francis Marion Cockrell were partners in the law practice. It was a strong firm, and in politics, Crittenden & Cockrell and Phillips & Vest were known as "The Big Four," who politically, bossed that region of the country for many years; one or the other of them getting
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PERSONAL RECOLLECTIONS.
all the good plums that were to be gathered in that district, and are yet getting them; and I have no objection to it, for I am not prepared to say that they ever got more than they deserved. I have seen but little of Crittenden, and nothing of Cockrell in the court house, in the trial of causes, and am not prepared to speak of their ability as lawyers.
I know Crittenden intimately, and have been very close to him for many years, and have always found him fully up to the highest standard of manhood. He is a manly, chivalrous gentleman whom you may safely trust in any emergency. He is one of that rare specimen of Kentuckians who neither swears, drinks nor plays poker. But he has that other weakness of Kentuckians which I will not name- a weakness not confined to Ken- tuckians, but found in every clime and country on the habitable globe, inherited from Adam by every male child of his race.
I never did understand why Crittenden had none of the three vices above enumerated, but I suppose it is because he was not born and reared near Lexington in the blue grass region of which Vest is a native.
Phillips was born and reared near Rocheport, in Boone County, but has the failings of a Kentuckian, and I suppose he contracted his weaknesses by his sojourn at Danville, while a student at Centre College. Besides, there is a good deal of blue grass in Boone County, which was settled principally by blue grass Kentuckians.
When I first came to Missouri, James Gordon was Prosecuting Attorney for the judicial circuit composed of Boone, Howard, Callaway and Audrain Counties. He had a rough exterior, but was a well equipped lawyer. He was succeeded in that office by Charles H. Hardin, afterwards Governor of the State. He was a laborious lawyer and a fairly good one. As an advocate he was awkward, and by no means a captivating speaker. He dealt altogether in facts and not at all in fancy.
He was succeeded by Robert T. Prewitt, one of the ablest lawyers in that part of the State. He came of a race of lawyers. His uncle, Robert Trimble, was a Judge of the Supreme Court of the United States, but died soon after his appointment. His uncle, John Trimble, was a Circuit Judge, and afterwards one of the Judges of the new Court of Appeals of Kentucky, the establishment of which was the cause of a bitter contest in that State. His uncle, James Trimble, was an eminent lawyer in Mississippi.
Benjamin F. Stringfellow was Attorney General of the State soon after I emigrated to Missouri, succeeding Mansfield Bay. Stringfellow had an acute, active mind, and was an excellent lawyer and advocate. He had but few superiors, and if he had had the applica- tion, industry and habits which distinguished Leonard and W. P. Hall, would have stood abreast of the ablest in the profession. He was a politician and one of the most distin- guished of Benton's opponents, and on the stump, Benton denounced him in the severest terms; but in vituperation and denunciation, Benton had no advantage of him. Stringfel- low was not a Prohibitionist or a Washingtonian and occasionally whisky got the better of him, as it does most of us who tamper with it, and Benton, on one occasion, wrote and published some doggerel in which this weakness of Stringfellow was sharply and humor- ously alluded to. In the same effusion he ridiculed and lampooned Jackson, Green, Lowry and several other anti-Bentons.
Fifty years ago lawyers were more courteous to each other and to the Court than they are 110W. The old lawyers of Missouri were models in that respect. In those days, one who insulted another had to go to Bloody Island, or some other retired place, and look into the mouth of a duelling pistol or hide himself away in shame and disgrace. It was a bar-
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
barous way of settling a dispute, but was productive of some good results. It made inen a little more careful in their speech and deportinent to others, and there was more dignity and decorum at the bar than now; and it is well worth our while to consider how we may restore to the bar the urbanity and courtesy which distinguished the lawyers of that generation.
Several instances of gross insult offered by an attorney to an opposing counsel have come under my observation in this State; insults so gross that the insulted party, obey- ing the impulse of manhood, struck the other in open court. Now, I could not find it in my heart to condemn the man who struck the blow, and if one attorney should give the lie to another, my inclination, as a Judge, would be to impose a fine upon him and not the one who resented it like a man, with a blow.
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