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 55
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In Missouri, to call one a liar is, in public estimation, an aggravated assault, and the very next thing to a breach of the peace. A lawyer ean practice law without being dis- courteous to the adversary attorney, and this is a subject which the bar associations might with propriety seriously consider. The bar should be a model of politeness and courtesy, and you can, if you will, make it so. I recollect two eminent lawyers in this State (I shall not mention their names), between whom there was a feud of long standing; but at the bar, in opposition to each other, in the trial of a cause, no one would have discovered that there was bad blood between them. This was as it should be. Respect for the tribunal should prompt attorneys to be respectful in the court room to each other. Again, lawyers over zealous sometimes get beyond the bounds of propriety in their addresses to the jury, and unnecessarily abuse witnesses and parties, applying to them epithets which, perhaps strictly the testimony would warrant, but which there is no occasion to deal in, and occasionally serious consequences result.
Recently, in a neighboring county, an attorney addressing a jury, denounced in severe terms, a witness whose fatlier, inaddened by the attack upon his son, assailed the attorney and was himself shot down in the court room by the party with whom he was in litigation. I am not prepared to say that the attorney's strictures upon that young inan's testimony were not warranted by the evidence; but I do say his testimony inight have been co111- mented upon and its untruthfulness exposed, if false, without the use of offensive epithets, in a manner to have impressed the jury and not enraged the parent. Let us all think of these things and cultivate courtesy at the bar. I am talking to you as if I were an old inan, but young men can sometimes speak words of wisdom.
I was many years ago present at the trial of a cause in Randolph County, in which the plaintiffs liad sued to set aside an old man's will. Mr. Leonard was one of the eounsel and, in the progress of the trial, a female witness was giving damaging testimony against liis clients. He subjeeted her to a rigid cross-examination. She had testified that she had lieard the old lady frequently scold and abuse the old man. Leonard asked her whiat the old gentleman did when she would seold him. Said she, "What do you do when your wife scolds you?" Said Leonard, "I just put on my hat and walk out of the roomll." " Yes," said the witness, "and I have 110 doubt you very often put on your hat and walk out of the room, for I don't see how any woman could live with sueli a looking man as you without quarreling with him every day."
'This produced langliter at Leonard's expense, but lie took it in good part. Judge Leonard was not a handsome man; about five feet eiglit inches higli, a large head and a small body, large face and a broad mouth, and heavy eyebrows that overhung large dark
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PERSONAL RECOLLECTIONS.
eyes. A woman would say he was ugly, but anyone would be struck with his appearance and set him down as a genius.
George H. Burckhardt was then Judge of that judicial circuit, and died recently, after he had been on the circuit bench for more than thirty years. He was a good Judge and a good man. I knew him intimately for forty years. He was a jovial, kind hearted man, beloved by the bar, and exceedingly popular with the people of that judicial circuit, in which no man could have beaten him for Circuit Judge. There were abler lawyers in the circuit, but no better man in the circuit or in the State.
Fifty years ago Judge James Ellison, father of Judge Ellison of the Court of Appeals, Judge Andrew Ellison, of the Adair Circuit, and Williamn C. Ellison, of Nodaway County, was Judge of a judicial circuit which extended west from the Mississippi River to Adair County, Missouri. He was a good Judge, occasionally took an active part in politics, and was a warm friend of Colonel Benton, in the fierce contest with the anti-Bentons. He was suc- ceeded by Judge Addison Reese, brother-in-law of James S. Green, who married his sister. I never saw him or Judge Ellison on the bench, and knew but little of thein as Judges or lawyers, except from reputation. I knew Judge Reese and all the Reese family in Ken- tucky. They and I were from the same county in Kentucky.
Hayden was a very earnest advocate, and occasionally his zeal and enthusiasm got him into personal encounters. He was a fleshy, awkward man, and once engaged in a street fight with Ned Simpson, a man of some notoriety in Boonville, and after they had fought and scuffled for some time, they were separated by the spectators; and Hayden, holding to a fence, and panting from the exercise, said to those present, "Hold him until I get my breath, and I will whip the damned rascal !"
Hayden was one of the kindest men to young lawyers I have ever known, and they all loved him. I was a young lawyer, without practice, in Boonville, and my first appearance at the bar was in a case of some importance. Hayden was plaintiff's attorney, and invited ine to sit with him in the case and to make the opening speech to the jury. I did so, and do you think a young man will ever forget a kindness like that? They never do, and an elderly man lays up treasures in Heaven, who extends such courtesies to his juniors. Just think what a probation a young lawyer has to serve before he can make bread and ineat at the bar. It is a wonder that so many persevere, and you who have had that experience, should not forget those days of poverty, privation and hope deferred, but reach out your hands to your younger brothers, struggling as you did. What a pleasure it is to confer a favor. And how it gladdens the heart of a young lawyer and encourages him to perseverance to be recognized and patronized by the older members of the bar, who have themselves struggled up to the front rank of the profession. The members of the bar should compose a brother- hood, and not regard each other as enemies or personal adversaries, even when opposed in the trial of a cause. A warm, generous friendship should exist among them, and each should strive to surpass all others in courtesy and kindness, as in legal learning.
The value of friendship is inestimable. "It is," as old Smollett said, "the sovereign cordial of life." It affords the chief zest to human existence. Take from me my friends and you are welcome to my life; for without friends life is a burden and death a welcome riddance of the lieavy, galling load; and when such men as Comingo, Sawyer, Lindley, Pruett, Richardson, Hayden, Woodson, Burckhardt and many other warm, personal friends whom I might mention are summoned to join that innumerable host on the roll call of eternity, I feel that a part of myself has departed, and gloom and sadness fill the place in my heart which they occupied.
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
It is a sad thing to part forever from those we love; but it is inevitable, and as one goes out of my life I try to take in another and in that way weary through it. How true it is that "man that is born of woman is of few days and full of trouble." Therefore, we should each endeavor to do his full part to make others happy, for in contributing to the happiness of others, we derive our own chief pleasure.
You will excuse my sermonizing. I often get in the mood, and feel like preaching, not sectarianism, but the religion of love and kindness, and benevolence and charity. Charity and benevolence and courtesy are natural to man, and are only uprooted from his nature by the cultivation and indulgence of avarice, selfishness, envy and jealousy, which eat out of the heart all there is of good in it, and leave a man as a vigorous tree of the forest struck by lightning, stripped of its fruit and its foliage and standing a bare, ugly trunk, with nothing but hard wood and rough bark, fit for nothing but fuel for flames.
There were many other eminent lawyers at the bar when I came to the State, but space will not allow any special notice of them-Bella Hughes, of Platte, now of Denver; Phelps, Otter, and Thomas A. Ruffin.
Ruffin came from North Carolina to Missouri- was a nephew of Judge Ruffin of that State. He remained but a few years in Missouri, returned to North Carolina, and served several terms in Congress from that State. Felix G. Hunton and DeWitt C. Ballou were at Warsaw, Waldo P. Johnson at Osceola. Phelps was a member of Congress, re- cently elected when I came to Missouri. He was distinguished as a member of Congress, as in all the other public positions he occupied, for industry, energy, accuracy and in- tegrity. He was not a genius but an able man, and one of the best executive officers in the United States. He was one of the few men who served a terin as Governor of this State as popular at the end as at the beginning of his term. He was a very practical, sensible man.
Johnson and Ballou both served as Circuit Judges. I knew but little of theni as lawyers but from reputation. Felix G. Hunton was a genius and was generally regarded as the ablest inan at the bar in Southwest Missouri.
Little Bury Hendricks was a prominent lawyer from the same section of the State. I have been told, but will not vouch for its truth, that at one time Mr. Leonard thought that he was losing his eyesight, and employed Hendricks, then a plasterer, to read to him and write for him; and that when his terin of service with Leonard expired, he obtained a license to practice law, having learned what he knew of the law from reading to Mr. Leonard. He was a lawyer of fine standing at the bar.
Foster P. Wright, in 1845 and prior to that time, was Judge of thic judicial circuit cuibracing Benton County. I went once in a buggy with Jolin C. Richardson, afterwards a Judge of the Supreme Court, from Boonville to the Benton Court, when the Turk and anti-Turk feud was at its height. Wright was on the bench. A feeling of uneasiness and terror pervaded the entire community, and Wright, an amiable and quiet man was 011 11ettles.
Of the contemporary bar of Kansas City I shall say nothing. Its members have been so kind to me that I am afraid I would exaggerate their merits should I speak of tlich, for I am very blind to the faults of my friends and very apt to magnify their virtues.
Kansas City, Mo., January, 1898.
REMINISCENCES OF THE BENCH AND BAR IN CENTRAL MISSOURI.
BY THOMAS SHACKELFORD.
AS one crosses the bridge that spans the Missouri at Boonville, on the Howard County side, there will be seen clusters of willows in a dismal looking swamp. This low swamp was the location of the old town of Franklin, now long since washed away by the treacherous Missouri River and again by the building of the dikes to protect the bridge, the original location can be traced by the engineer's compass. Here the capital of old Howard County was located, whence came warriors, statesmen and lawyers who laid the foundation of our Western civilization.
The limits of Howard County extended south, west and north and covered territory now larger than many of the older States, and hence Howard County is well called the "Mother of Counties." Howard County was organized January 23, 1816, and named in honor of Gen. Benjamin Howard, who was appointed Governor of Missouri Territory to succeed Merriweather Lewis. Howard County was then organized from the western portion of St. Louis and St. Charles Counties and embraced all that portion of the State south of the mouth of the Osage and south of the dividing ridge between the Mississippi and Mis- souri Rivers, then embracing the territory since divided into thirty-one counties, nineteen north and twelve south of the river. The county as organized named Cole first seat of justice. David Barton was appointed Circuit Judge, on whom devolved the duties now incumbent on the County and Circuit Court. In 1817 the county seat was removed to Franklin, and was transferred to Fayette, present county seat, in 1823.
David Barton. David Barton stands pre-eminently at the head of the judiciary of this part of the State and deserves the first mention in this history of the bench and bar of Central Missouri. He was the recognized principal author of the first Constitution of the State of Missouri. How well he impressed his grand judicial mind upon the judiciary of the State is evidenced by the fact that the Barton Constitution is made the real foundation of all subsequent Constitutions. Judge Barton was afterwards elected United States Senator.
Hamilton R. Gamble. One of the lawyers who first located in Franklin was Hamilton R. Gamble, who afterwards removed to St. Louis, and was subsequently Judge of the Supreme Court, and Provisional Governor of Missouri. The history of the bar of St. Louis will doubtless do justice to the memory of this great lawyer.
The other early residents of Franklin were David Todd, who succeeded Judge Barton as Circuit Judge; Lilburn W. Boggs, afterwards Governor of Missouri; Abiel Leonard, who had removed to this place from Vermont, his native State, in 1819; and Peyton R. Hayden.
David Todd. My earliest recollection of Judge Todd and Abiel Leonard was when I was a boy. They frequently visited my father's home in Saline County, while the Judge
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
was holding Court at old Jefferson, the then county seat of Saline County. I remember a beautiful tribute my mother paid to this honest and upright Judge. She said to ine, "Judge Todd is such a pure character that I have heard it remarked that he was never known to speak harshly of his fellow-man; that if others reviled anyone in his presence he sought to find some good in the abused man." This trait in this good man must have been sorely tried when he was removed from the office of Judge by a Constitutional Amendment (Statutes of 1845, page 52, ratified Sessions 1834 and 1835), declaring the offices of Judges in the State of Missouri vacant. Most of the Circuit Judges, who were then appointed for life, were Whigs, and while this inode of getting rid of opponents in office seemed to have been justified by party policies, yet truth must be said that this action of party spirit will ever remain as a dark spot in the judicial history of the State.
Abiel Leonard. In early life my father had impressed me with the thought of becoming a lawyer and while I was going to school in Fayette, this idea so impressed me that I was a constant attendant at the courts from 1838 until I was admitted to the bar in 1842, and since then I have been in active practice in all the courts of this State, and I will give now the impressions made upon my mind, from early boyhood, of the lawyers with whom I associated. Next to Judge David Todd, of those who began their career in Franklin, was Abiel Leonard, whom I knew intimately, having under his guidance achieved my ambition to adopt the law. A native of Vermont, he came to Missouri in 1819, at the age of twenty-one years and like many men beginning in this Western wild, taught a school in old Franklin. It will be remembered that the common law practice prevailed in our State and hence the student of law, if he succeeded in his profession, had to master the elemen- tary works by studying "Bacon's Abridgement," "Coke Upon Littleton," "Sugden on Vendors" and above all, "Blackstone's Commentary," "Chitty on Pleading and Practice," as well as other abstruse works on law. Mr. Leonard pursued his legal readings with such assiduity that he became affected with some disease of the eye and employed Littlebury Hendricks, afterwards a prominent lawyer in Southwest Missouri, to read for him, while lie made comments. It was afterward discovered that the trouble with his eyes was only a difference in the focus, which was remedied by his glasses.
I remember that while he was Circuit Attorney, that a friend of Taylor Berry was being prosecuted for some offense in connection with the land titles; when the argument was over, Berry attempted to whip Mr. Leonard. Mr. Leonard being a Northern man, felt compelled by the then state of public opinion to send a challenge to Berry, which was proof of his indomitable courage. The result of this duel is familiar to all. By the law tlen in force, the sending of a challenge to fight a duel by any lawyer or holder of any office, subjected such offender to disbarment or removal. Such, however, was the character this brave Vermonter impressed upon the Missourians of his acquaintance, that a petition to the Legislature to remove the disqualification was universally signed, and the disquali- fication was removed.
A career thus commenced could but end in success. His industry and indefatigable persistency in studying his profession, coupled with his indomitable courage, could not but impress favorably the hardy pioneers of Missouri, mostly then of Kentucky and Virginia, and his success was assured. He was emphatically a lawyer, and when he argued a point of law he so impressed the court and hearers with his earnestness that none doubted but that he felt that the great principle of justice and truth was at the foundation of liis con- tention. When I was a student, being often associated with him, this principle so dom-
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REMINISCENCES OF THE BENCH AND BAR IN CENTRAL MISSOURI.
inated him that he often said to me: "When you have a case presented, see well to it that your client is right on principle and justice, and when so convinced, then look for authority."
When he walked the streets he seemed as if in deep study and he would often meet men and pass without a salutation. This gave a great inany the idea that he was cold and unsympathetic, which was far from being the truth, for no lawyer in general practice was more kind to young lawyers, and an instance of such kindliness may here be deemed appro- priate. I once was visiting Jefferson City, attending court, when he was one of the Supreme Judges. When he came down from the bench lie took ine by the arın and led ine into his private roomn and while seated there, said to me: " I want to show you a singular record. Here is a suit instituted by a young man in South Missouri to make a father liable for the trespass of his son in beating a neighbor boy, alleging that the father had permitted his bad boy to run at large unrestrained. What do you think of such a case? " I commented on what I considered the want of knowledge of the lawyer in likening the boy to a vicious animal. "Oh," said Judge Leonard, "I will let the young man down easy. I have examined the authorities and find that such was actually the doctrine of the civil law in France." So the case of Bakeinan versus Halderman, 24 Missouri, 219, will ever remain to ine, a monuinent of the goodness of heart of this great inan.
In our consultations we often differed as to the theory under which we should try a case, yet he was always considerate of my opinion. I remember one case of the kind in which we differed as to the theory that should govern the case. He presented to the Court his theory, and the Court overruled his point. He stooped to whisper to me, "Let us try your point on the Court." He presented this view and the Court sustained him, and Pey- ton R. Hayden, for the plaintiff, with characteristic magnanimity, mixed with a keen sense of humor, said, "I am inclined to think my brother, Leonard, is right; and if my associate counsel cannot convince your honor to the contrary we will take a non-suit," and walked out of the court room. As I walked with Mr. Leonard to our hotel, I rather felt disposed to twit him on the manner in which my point had been sustained. "Oh," said he with good humor, "the Court decided right, but for a wrong reason."
I witnessed the contest between Mr. Leonard and Mr. Hayden in the case of Craslen versus Baker, reported 8 Mo., 315. Mr. Leonard's client was under a cloud in Saline County and procured a change of venue to Howard. Woe be unto the inan whose record was cloudy when Mr. Hayden was against him. In this case Mr. Hayden told the jury, with humor and sarcasm, that he (Hayden) had never been guilty of a catalogue of crimes which he named and which were those offenses of which Mr. Leonard's client was sus- pected. Mr. Leonard arose and asked the Court to protect his client from such uncalled for abuse. Mr. Hayden paused and turned to Mr. Leonard: "Now please observe that I have not said a word about the character of your client, but I am defending my own character."
While Mr. Leonard had great respect for the Supreme Court, he did not hesitate to controvert its opinions when he thought they were wrong on principle. I was with him when he learned of the decision of the Supreme Court in the case of Reid versus Heirs of Austin, 9 Mo., 723. He calmly remarked-" They will be compelled to take back tliat opinion some day," and they did in Davis versus Owensby, 14 Mo., 170.
Again he asked the Circuit Judge in Saline County whether the Court would hear an argument against a former opinion of the Supreme Court. The Circuit Judge said if he could present a good reason he would give the Supreme Court another opportunity to pass
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
upon the question, so the Circuit Court overruled the case of Lewis versus Lewis, 5 Mo., 27. I was present at the hearing of the case of Cheatham versus Cheatham, 10 Mo., 296.
Mr. Leonard made a powerful argument against the former opinion. The opponent of Mr. Leonard, who had brought his action on the authority of the case of Lewis versus Lewis, made an impassioned address to the Court on the presumption of Mr. Leonard, and at the conclusion of his address remarked: "I have examined all the authorities and I find none that advises me that Mr. Leonard is the Solomon of the Nineteenth century." Judge Scott made his characteristic grunt, Judge Napton's eyes sparkled and Judge McBride smiled. The bar present enjoyed the confusion of Mr. Leonard, upon whom the humor of the thing was entirely lost.
I must mention one more case to show the innate principle of justice that dominated the mind of this great lawyer. A long line of precedents in regard to buying and selling property were to the effect that if a man purchased property and did not demand a warranty, that lie was remediless if there was a secret defect known only to the seller. It will be seen by reference to McAdam versus Cates, 24 Mo., 223, that Mr. Leonard, with a keen sense of justice, decides that if a seller knows of a secret defect unknown to the buyer, and he has reason to believe that the buyer would not buy if he knew thereof, then he is guilty of fraudulent concealment which would void the contract.
I remember once of Mr. Leonard alluding to his teaching school in early life as we were walking the streets of Marshall. A poor man came while under the influence of liquor and approaching us, I was surprised to see Mr. Leonard extend his hand and give a cordial greeting. As we passed on Mr. Leonard said, "That poor inan went to school to mne. I expect you think he is not a very creditable scholar."
It is perhaps fitting that I give a few facts bearing on the life of this remarkable man. He was born in Windsor, in the State of Vermont, May 11, 1797, educated at Darmouth College, was in 1830 married to Miss Jennette Reeves, daughter of Benjamin H. Reeves. His loving daughter, Mrs. Mary L. Everett, pays this beautiful tribute to his memory, mningled with regret: "He lived in Howard County and there passed away in 1865 at thic darkest period of our country's history and before the termination of the war and the tri- 11111plı of the cause he loved so well. It gives me a pang to think of it yet."
Missouri ought to be proud, as well as grateful, to the memory of a man who has left such an impress upon the judiciary of the State. I may have given this man, to whom I owe so much, too extended a notice, but I feel that the younger members of the profession will appreciate the holding up this model of a lawyer as a fitting exemplar, whom they will do well to imitate.
John B. Clark. I come now to mention one of the most remarkable lawyers in the liis- tory of Missouri. A man over the average size, tall and erect as an Indian, as he walked the streets of Fayette with stately step, a stranger would say "there is an extraordinary mnan." This man was Jolin B. Clark. He cared naught for scientific pleading. He studied to get his casc before the jury. He knew the history of every man on the jury, with all liis asso- ciations, liis likes and his dislikes, and his peculiarities of temperament. His address was not finished in artistic style, liis language was not the language of one with an academic education, but he understood human nature well. He seemed to place himself in place of his client. His pathos at times was such as to win the audience as well as jury to his client's causc. Strong men wept over the pictures he drew of the wrongs inflicted on liis client. If invective were needed to depict to the gaze of the jury the machinations of
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