USA > New Mexico > History of New Mexico : its resources and people, Volume I > Part 43
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Thus, in brief, were the courts of the Territory organized and operated when General Kearny promulgated what has since been known as "the Kearny Code."
The genesis of the bar in New Mexico was unique in the history of the United States. So simple was social life in Mexico during the days of empire and the regime of the early republic that there was little work for the legal profession. Lawyers were hardly known. The priests were the advisers of the people in matters pertaining to the disposition of prop- erty, and the alcaldes knew little of law. But the people, as a rule were law abiding, and recourse to the courts was infrequent. As a rule minor disputes were compromised through the offices of the clergy. Important controversies concerning lands generally went before the governor for final settlement, and his word was usually a law in itself.
Following the American occupation during the first year of the Mex- ican war came a revolution in social manners and customs, especially in the centers of population. The provisional code promulgated by General Kearny, September 22, 1846, and the Organic Act of 1850, followed by the appointment of federal officials, resulted most naturally in the enactment of statutes which radically modified the old Spanish law and substituted laws similar to those which governed the eastern states. The phraseology of some of these statutes was exceedingly crude, and frequently quite be- yond the comprehension of the average human mind. Even in cases where a fairly learned American lawyer might be able to interpret the law, the Spanish translations were frequently obscure. The original Spanish was often much worse than the translations. One statute, enacted in 1852, was drawn originally in English by an eastern lawyer, was translated into Spanish by a German, and was finally passed in that form. Within a few months after the promulgation of the Kearny Code it became evident that the jurisdiction of the courts was very limited, especially in the event of a conflict between the civil and the military authorities. Complaint was made that the powers properly falling under the jurisdiction of the civil tribunals were arrogated by the military, bringing the former into con- tempt and paralyzing the civil government, which was subservient in all ways to the military authorities. Even in common criminal matters the civil court bowed to the will of the military on some occasions.
Until the advent of the railroads, late in the 'zos, few lawyers had located in the Territory. During the early days of American occupatior. there was a continued conflict between those who were inclined to consider the rules and principles of the common law as having accompanied the Organic Act. and those who regarded the Spanish civil law as still in force. The judges who were appointed to the New Mexico bench from eastern states knew practically nothing of the Spanish and Mexican laws, and some of them-it is a deplorable fact-knew little of American law. One who afterward became recognized as an able lawyer confessed that when he came to the Territory his knowledge of the science was utterly superficial; but after ascending to the bench he became an indefatigable student and finally ranked among the really capable lawyers of the terri- tory.
The condition noted was remedied in 1876, when the common law, as recognized in the states, was declared by statute to be the rule of practice and decision. "The common law thus adopted," wrote John H. Knaebel,
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"included many antiquated rules and doctrines at law and in equity which as early as 1876 had been subjected to severe pruning and amendment in most of the eastern states, as well as in England. The courts of New Mexico were at liberty to introduce such changes merely because the leg- islatures of many states had made then. Consequently, New Mexico was put in the predicament of ignoring the old law which her native popula- tion had lived under for centuries, as the same had from time to time been modified by Spanish and Mexican authority, and of following a strange system of jurisprudence and practice which they were too blind to see and too unprepared to learn. Indeed, few learned lawvers, even of the older states, were in 1876 acquainted, except theoretically and very scantily and superficially, with many of the rules and doctrines thus summarily intro- duced into New Mexico in that year."
With the influx from the states following the construction of the rail- roads into the Territory, many new attorneys entered the field, some of whom were men of splendid ability. But in spite of their knowledge of the law, they were in many instances ignorant of the prevailing condition, and confusion in the courts followed their appearance there in the trial of cases. While Frank Springer and other practitioners accomplished much in the reformation of the laws and methods of procedure, it was not until the organization of the Bar Association in 1886 that systematic efforts toward that end were made. Probably no other association in the United States has accomplished more in securing legislative enactment of a beneficial character.
The New Mexico Bar Association was organized at Santa Fé at a preliminary meeting held for that purpose January 19, 1886, and was among the first of the state or territorial associations to be organized west of the Mississippi river. Of the thirty-eight state and territorial asso- ciations of the United States, nineteen were organized before the date of the organization of the New Mexico association, and seventeen at a later date. At the preliminary meeting referred to Hon. William A. Vincent, of Las Vegas, ex-chief justice. was elected president, and Hon. Frank W. Clancy of Albuquerque was elected secretary. There were twenty-nine original members. The association was formed "to cultivate the science of jurisprudence ; to promote reform in the law; to facilitate the adminis- tration of justice; to elevate the standard of integrity, honesty and court- esy in the legal profession ; to encourage a thorough and liberal legal edu- cation, and to cherish a spirit of brotherhood among the members there- of." The minutes of the very first meeting show that Colonel William Breeden, then attorney general, offered a resolution eulogizing the mem- bers of the supreme court, at that time being Judges Long, Brinker and Henderson, and urging that their nominations, then pending before the senate, be confirmed. At the next session, held in 1887, Hon. William A. Vincent, first president of the association, was strongly indorsed by a resolution for the position of judge of the fourth district. These actions on the part of the association led to the adoption of the amendment pro- viding that the association "shall not indorse or recommend any person for any official position."
The session of 1887 was memorable by reason of the fact that dur- ing the meeting a strong memorial was passed urging upon Congress the necessity of a Federal law providing for the settlement of titles under the
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Mexican and Spanish land grants. At the session of 1888 Hon. Bernard S. Rodey made a report for the committee on legal education which re- sulted in the adoption of a rule making the standard for admission to the bar of New Mexico as high as in any jurisdiction in the Union, although it does not require as a prerequisite that the applicant shall be a graduate from any literary college. At the session of 1890 Hon. Frank Springer, the retiring president, delivered an address which dealt entirely with the question of the urgent necessity for the immediate settlement by Congress through a proper tribunal of titles under Spanish and Mexican land grants. This address was deemed so important by the association that the address was printed and distributed among members of Congress and filed with the land department at Washington. It resulted in the establishment of the Court of Private Land Claims the following year, through which all these land claims have since been happily settled. There was also pre- pared at this session and presented to Congress the draft of a bill provid- ing for the creation of two new district courts and the appointment of two new additional justices on the supreme bench. This action resulted in the creation of the fifth judicial district.
At the session of 1894 a resolution was adopted recommending a civil code, and a committee was appointed to draft the same and present it at the next meeting of the association. At the session of 1895 this committee reported a draft of the proposed code, and its consideration was made the special order for the whole meeting. It was finally recom- mended for passage to the legislature after numerous amendments had been made. The measure was defeated in the lower house in the legis- lature, however. At the succeeding session the association passed a reso- lution urging the New Mexico delegate to Congress to procure an act providing for a separate supreme court. In 1897 and 1898 another very strong memorial to Congress was adopted urging the creation of such a court. The Territorial legislature of 1897 adopted the code recom- mended by the association without making any changes therein; and at the meeting of the association in 1898 the supreme court appointed a committee of the association to draft new rules to conform to the code. This was done and the rules were adopted by the court without change.
In 1901 by request of the supreme court the association prepared a programme for "Marshall Day" exercises on February 4th following. These were held in the capitol building at Santa Fé, where addresses appropriate to the occasion were made by Chief Justice William J. Mills, Hon. Frank Springer, Colonel J. Francisco Chaves, Hon. B. M. Read and Hon. E. A. Fiske.
At the first meeting of the association following the organization Mr. Clancy resigned and Edward L. Bartlett was chosen to succeed him. Mr. Bartlett was re-elected to that office every year during his lifetime, and upon his death was succeeded by Richard H. Hanna. Judge Vincent's successors as president have been as follows: 1887, Neill B. Field, Albu- querque ; 1888, Simon B. Newcomb, Las Cruces; 1889, Frank Springer, Las Vegas ; 1890, Frank W. Clancy, Albuquerque : 1891, William C. Hazel- dine, Albuquerque : 1892, A. B. Elliott, Hillsboro; 1893, A. A. Jones, Las Vegas: 1894. James G. Fitch, Socorro; 1895, Thomas B. Catron, Santa Fé : 1896, Neill B. Field, Albuquerque; 1897, A. B. Fall, Las Cruces ; 1898-99, Ralph E. Twitchell, Las Vegas; 1900, A. A. Freeman, Carls-
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bad; 1901, Eugenc A. Fiske, Santa Fé; 1902, William B. Childers, Albu- querque ; 1903, A. H. Harllee, Silver City; 1904, William C. Wrigley, Raton: 1905, G. A. Richardson, Roswell.
The first occupants of the supreme bench in New Mexico were Joab Houghton, chief justice and presiding judge in the first dis- trict; Antonio J. Otero, presiding in the second district, and Charles H. Beaubien, presiding in the third district. The headquarters for these districts was the same then as now. None of the three judges were lawyers by profession, though Judge Houghton read law while on the bench; but all were men of high standing and a splendid sense of justice. Houghton was of Anglo-Saxon descent, Beaubien of French and Otero of Spanish. They were appointed by General Kearny and each served three years, or until the Organic Act establishing the Territory went into effect. They were succeeded by Grafton Baker, chief justice ; John S. Watts of the second district and Horace Mower, of the third district. Upon the establishment of the fourth district in 1889, Elisha V. Long was appointed judge of that district, with headquarters at Las Vegas. The fifth district was erected in 1890, and Alfred A. Freeman was appointed judge, with headquarters at Roswell. The sixth district was not erected until 1904, and Edward A. Mann was appointed judge, with headquarters at Alamogordo.
Some of the justices of the earlier days were men of strong char- acter, though not always learned in the law. However, there were among them men of high legal attainments.
Judge Houghton was born in New York state in 18II, received a collegiate education, and was a civil engineer by profession. He came to New Mexico in 1844, and the year following was appointed United States consul at Santa Fé. At the same time he was engaged in general merchandising. In 1865, having in the meantime equipped himself in the law, he was appointed an associate justice of the supreme court, presiding in the third district. After retiring from the bench he practiced law in Santa Fé until 1874, when he removed to Las Vegas. His death oc- curred in that city in 1876.
Judge Otero, a more detailed account of whose life will be found on other pages, was a man of broad mind and commanding influence. Nature endowed him with a fine intellect. He rarely expressed an opinion until he had carefully weighed the question under consideration.
Judge Beaubien, whose life in New Mexico is also described more fully elsewhere in the narrative, was one of the best known men in New Mexico. Before his appointment to the bench he had filled several offices of trust, and his reputation for integrity and honesty of purpose was so well known that General Kearny did not hesitate in appointing him to this high post.
Perry E. Brocchus, who served as judge of the first district from 1857 to 1859 and of the second district from 1867 to 1869, was a man of large parts. He was born in Baltimore, Maryland, and came to New Mexico at the age of about forty, bringing with him a commission as associate justice from President Buchanan. Before coming to New Mex- ico, President Fillmore, in 1851, had made him associate justice of the supreme court of Utah. He was removed from office by President Grant in 1869. He was a man of great ability and force of character, and was
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possessed of great personal courage. He was a man of large physique and powerful strength. He would fight at a moment's notice, and on the slightest provocation use his fists like a trained fighter. Though amiable and generous to a fault, a stern sense of right and justice was always prominent in his make-up. In a memorial to Judge Brocchus prepared by the committee on the history of the bench and bar of the New Mexico Bar Association and read before that body in 1895, the following incident illustrative of the character of the man and giving a hint as to the man- ner in which the courts of those days were conducted, appeared :
"On one occasion, while holding court in Socorro, he had some trouble with Judge Kirby Benedict. Brocchus was somewhat hard of hearing and was very sensitive over the deficiency. Benedict was presenting a motion to the court, and in the argument spoke in a very loud voice and with violence of gesture. Justice Brocchus quietly stopped him, saying, 'Judge Benedict. it is not necessary for you to speak so loudly. The court hears you without difficulty, and your loud tones and gesticulations are exceedingly unpleasant to the court.' Benedict apologized, resumed his argument, and speedily was as loud and vehement as ever. Once more the court stopped him and said, 'Judge Benedict, your tone of voice and your violence are offensive to the court, and you must be more moderate or suspend your remarks.' Again Judge Benedict apologized and re- marked, in extenuation of his conduct, that in the heat of argument he had forgotten the court's instructions. Brocchus then said: 'Judge Ben- edict, you may proceed, but hereafter do not be so forgetful of the court's wishes.' Benedict again resumed and presently was sawing the air with his hands and lifting his voice like the bull of Bashan. Brocchus stood the very patent indignity for a few minutes, and then rapping on the bench said: 'Mr. Sheriff, the court takes a recess for five minutes.' He then climbed down from the bench, took the distinguished Benedict by the lapel of his coat and said: 'You impudent old scoundrel, you howl at this court and the court will thresh you all over the room.' Benedict was profuse in his apologies and Brocchus released him, resumed his seat, and informed Judge Benedict that he might proceed, which was done with great moderation."
Judge Kirby Benedict, who was chief justice from 1858 to 1866, occupying the trial bench in the first judicial district, with headquarters at Taos, was one of the most striking figures who ever presided or prac- ticed his profession in New Mexico. His first term on the bench was eminently satisfactory to those who desired to see justice done in New Mexico, and upon its expiration in 1862 President Lincoln, who was his warm personal friend and neighbor, reappointed him for a second term. After his retirement from the bench he engaged in practice in Santa Fé, but in 1873 was disbarred on account of drunkenness and obstreperous conduct before the court, through the arbitrary and illegal action of Rufus J. Palen, then chief justice. Judge Palen's associates were inclined to be lenient in the matter on account of Benedict's acknowledged great ability, his fearlessness and his unquestioned honesty, but both of them-John I. Reddick and Warren Bristol-finally submitted to the will of Palen and, though not believing that Benedict should be disbarred, bowed to the decision of the chief justice. On January 16, 1874, Judge Benedict sub- mitted to the court a most abject written apology, admitting the offenses
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charged against him, which he really magnified beyond their importance, indulging in self-abnegation to a degree that was pathetic in the extreme. He fairly groveled at the feet of the chief justice, promising that his be- havior in the future would be most exemplary and asking to be reinstated in the good graces of the court in order that he might be enabled to support himself in his old age by following his profession. At this time he was in most needy circumstances and was, indeed, an object of pity and sym- pathy. But Palen remained obdurate, doubtless on account of purely personal reasons, and Benedict was compelled to round out his once almost brilliant career in official disgrace.
In spite of his intemperate habits, Benedict was highly respected by his contemporaries by reason of his unquestioned integrity upon the bench and his high sense of justice. He was generous and whole-souled, and throughout his career the charge of corruption was never laid against him. After his appeal for reinstatement was spurned by the supreme court he began drinking more freely than before, and in 1874 he fell in the streets of Santa Fé while intoxicated and died.
Judge Benedict's sentence of death upon Jose Maria Martin, who had been convicted of murder in Taos, has become historic. When the verdict of the jury was brought in, Benedict is reported to have addressed him in the following language: "Jose Maria Martin, stand up. Jose Maria Martin, you have been indicted, tried and convicted by a jury of your countrymen, of the crime of murder, and the court is now about to pass upon you the dread sentence of the law. As a usual thing, Jose Maria Martin, it is a painful duty for the judge of the court of justice to pro- nounce upon a human being the sentence of death. There is something horrible about it, and the mind of the court usually revolts from the per- formance of such duty. Happily, however, your case is relieved of all such unpleasant features and the court takes positive delight in sentencing you to death.
"You are a young man, Jose Maria Martin, apparently of good phys- ical constitution and robust health. Ordinarily you might have looked for- ward to many years of life, and the court has no doubt you have, and have expected to die at a green old age ; but you are about to be cut off in con- sequence of your own act. Jose Maria Martin, it is now the spring time. In a little while the grass will be springing up green in these beautiful valleys, and on these broad mesas and mountain sides, flowers will be blooming; birds will be singing their sweet carols and nature will be put- ting on her most gorgeous and her most attractive robes, and life will be pleasant, and men will want to stay. But none of this for you, Jose Maria Martin. The flowers will not bloom for you, Jose Maria Martin; the birds will not carol for you, Jose Maria Martin. When these things come to gladden the senses of men, you will be occupying a space about six by two beneath the sod, and the green grass and these beautiful flowers will be growing about your lowly head.
"The sentence of the court is that you be taken from this place to the county jail; that you be there kept safely and securely confined in the custody of the sheriff, until the day appointed for your execution. Be very careful, Mr. Sheriff, that he have no opportunity to escape, and that you have him at the appointed place at the appointed time. That you be so kept, Jose Maria Martin, until-Mr. Clerk, on what day of the month does
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Friday about two weeks from this time come? (March 22, your honor.) Very well, until Friday, the 22d day of March, when you will be taken by the sheriff from your place of confinement to some safe and convenient spot within the county ;- that is in your discretion, Mr. Sheriff; you are only confined to the limits of the county-and that you there be hanged by the neck until you are dead and-the court was about to add, Jose Maria Martin, 'may God have mercy on your soul,' but the court will not assume the responsibility of asking an all wise Providence to do that which a jury of your peers has refused to do. The Lord couldn't have mercy on your soul. However, if you affect any religious organization, it might be well enough for you to send for your priest or your minister and get from him-well -- such consolation as you can get, but the court ad- vises you to place no reliance upon anything of that kind. Mr. Sheriff remove the prisoner."
Some published accounts state that Martin escaped from his jailer, in spite of the admonition of the court, and died several years later by fall- ing from a wagon and breaking his neck. Old residents of Taos who were eye-witnesses, state that the sentence of the court was executed upon him. He was placed standing in a wagon, a rope was tied about his neck, the other end being attached to the limb of a tree above him, the team was started, and his body fell, breaking his neck.
Judge Rufus J. Palen, chief justice and presiding judge of the first district from 1869 to 1876, is reputed to have been one of the most arbi- trary men who ever occupied the supreme bench in New Mexico. Head- strong, overbearing, partial and biased, many of his critics say that he ran the courts for the benefit of the favored few. If attorneys did not please him when making arguments, he frequently became savage in his abuse of them. His dictatorial bearing was not only_evidenced on the bench but in the ordinary affairs of life, so far as his contact with the public was concerned. Possessed of but mediocre ability as a lawyer, his appointment is said to have been for purely political reasons, and a general sigh of relief went up from those attorneys of the Territory whose practice, procedure and personalities did not meet with his approval when his suc- cessor was appointed.
Samuel B. Axtell, who served as chief justice from 1882 to 1885, under appointment by President Arthur, had been governor of the Terri- tory from 1875 to 1878, governor of Utah in 1874 under appointment by President Grant, and member of Congress from California, where he had also filled the office of district attorney. In early years a Democrat, he was appointed to the bench and to the executive office in New Mexico as a Republican. He was removed from office as governor of Utah on the preferment of charges that he affiliated too freely with the Mormons. While governor of New Mexico he vetoed the notorious bill, passed Janu- ary II, 1878, incorporating the Jesnit Fathers of New Mexico, and con- ferring upon them general powers to establish educational institutions in any or all places in the Territory with the right to own an indefinite amount of property forever free from taxation. The legislature, which was composed almost entirely of natives, passed the bill over his veto, but it was annulled by unanimous vote of Congress February 4, 1879.
During the interim between his service as governor of Utah and gov- ernor of New Mexico, Judge Axtell practiced law in Cleveland, Ohio.
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He was forced to resign from the office of chief executive of this Terri- tory by President Hayes upon charges of corruption, arising chiefly from the so-called Lincoln County War. During his service on the supreme bench many charges were preferred against him, and though none were substantiated, he resigned his office. During nearly his entire term as chief justice charges were being made against him.
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