Bench and bar of Colorado (1917)/The Federal Court

The Federal Court

nteresting from an historical viewpoint and replete with personalities and numerous humorous sidelights, is the glimpse of the Colorado Federal Court, as afforded by the address of T. J. O'Donnell at the dedication of the new government building in Denver a year ago.

On that occasion Mr. O'Donnell, the present president of the Colorado Bar Association, in part said:

The first session of this court and of that court which was its contemporary as well as its predecessor, was held in the building then known as Ford's Hotel, 1626 Larimer Street, December 5, 1876

The event had been looked forward to by those who participated in it with an interest and enthusiasm far beyond that which animates this occasion. We celebrate a thing realized; they dedicated a hope. We dedicate an edifice of marble; they celebrated the creation of a state, for the opening of this court was the final act which evidenced the realization of the hopes of the heroic men who had builded the foundations and raised the superstructure of a new commonwealth, amid desert spaces and mountain wilds.

The glittering Centennial star had already taken its place in the constellation of the states, and this event marked the assumption, by the central planet, of one of the primary functions which hold them secure in their firmament.

Elmer S. Dundy, judge for the district of Nebraska, presided, but there was no bar. The genius of American institutions has no better illustration than the method by which the lawyers of the state were made members of the bar of the courts of these United States. Judge Samuel H. Elbert, who had been elected to the Supreme Court of the state, on its admission to the Union, was recognized, in his official capacity, by Judge Dundy, and moved the admission to the bar of—

• Eugene P. Jacobson
• Alfred Sayre
• Hugh Butler
• Westbrooke S. Decker
• John W. Jenkins
• Mitchell Benedict and
• Alfred I. Blake

as attorneys and counsellors at law, solicitors in chancery and proctors in admiralty.

All these are historic names in Colorado. The court records recite the indictment of one of them by the grand jury impaneled a little earlier on the same day, which shows that lawyers have improved in character, if not in capacity, since that time.

That the acknowledged versatility of this bar is no new thing, is evidenced by the fact that one of these seven selected leaders of the profession afterwards successfully combined the practice of law with the keeping of a livery stable.

Law, equity and admiralty (doubtless it was then thought the latter might draw unto itself jurisdiction over irrigation ditches) having been thus started on their course, with a nucleus of attorneys, solicitors and proctors, the admission of others, among the first of whom was Amos Steck, followed rapidly on the motion of divers of those first sworn in.

That was not quite forty years ago, but of the men who signed the roll that first day and thereafter during the first month of this court's existence,

• Owen E. Lefevre

George Q. Richmond

• William C. Kingsley
• Robert E. Foote
• Alfred C. Phelps
• Robert S. Morrison and
• Clinton Reed

only, still answer at roll-call; the others, that brainy, brilliant host of pioneer lawyers, who foregathered on Larimer Street in 1876, alas!

"The winds have blown them all away."

Judge E. T. Wells and Ex-Senator T. M. Patterson were not admitted to this bar until the following year. John M. Waldron's name was added to the roll in 1879, and our well-beloved and hoary friends, James H. Blood and Gustave C. Bartels, signed up, in this order, three days apart, in July, 1880—the first, last and only time they were ever known to do the same thing or anything, at different times.

Wilbur F. Stone went early to the Supreme bench of the state, and so the name of this much-esteemed historian of the pioneer bench and bar does not appear on this roll until many years later.

Edward O. Wolcott, "of Georgetown," was admitted here on the fifth day of the court's session. Senator Charles S. Thomas was admitted December 14th, and Frederick W. Pitkin, afterwards governor for two terms, about the same time, General Bela M. Hughes, Henry M. Teller, George W . Miller and Vincent D. Markham were enrolled in 1877.

These were honored in their generation and were the glory of the times, and there are of them that have left a name behind them.

General Hughes, the Nestor of the bar, and Chevallier Bayard of Colorado; Butler, walking statelier than Rome's tribune, master of logic and rhetoric, and able to contend with all the canniness of his Scotch, or the fervor of his Irish, ancestors, as the cause demanded; it was said of Butler that he never put forth his best efforts until he came to the petition for a rehearing, and that if he represented the defendant the case was never tried until both parties were dead, and generally not then; Wolcott, like Cariolanus, hating the many-headed multitude, but able to sway with his voice, juries and assemblies; Henry M. Teller, cold as the icicle on Dian's temple, but bold as a lion when aroused to righteous wrath; Miller, uncouth and not too learned, but with a fierce and savage imagery and posture and voice, an inheritance of his Indian blood, which drove all before him.

Miller was defending a man accused of manslaughter, in the Territorial Court at Colorado Springs. Judge Hallett was presiding. That the defendant killed the deceased was admitted; the plea was self-defense, and it was charged that the deceased had threatened the life of defendant with a loaded rifle. Miller seized the rifle, which was an exhibit in the case, and bringing it to bear upon the jury, charged, with a ferocious Indian yell. The jurors and everyone else in the court room except the judge, instantly became men of one mind and fled the room. Judge Hallett remained upon the bench, as imperturbable as he appears in that portrait upon the wall. The sheriff finally peeked in. Judge Hallett, calling him to the bench, said: "Mr. Sheriff, will you see if you can induce the jury to return to the court room and resume the consideration of the case, and you may assure them, sir, of the court's protection."

There was Markham, Virginia cavalier, whose learning and wit were seldom voiced standing, but who was a most formidable antagonist with pen and paper; Willard Teller, equally able and locally as well known as his more famous brother; Judge Steck, that quaint character, pioneer of California, as well as Colorado.

Judge Steck resigned from the county bench in 1883, and took offices in the old Tabor block at Sixteenth and Larimer streets, where I then had an office. Coming out of the building one day, I observed him walking with another man, whom he held by the arm, and to whom he was exhorting and gesticulating, in his pronounced and pugnacious manner, saying: "The Supreme Court will reverse it, the Supreme Court will reverse it, it's bound to reverse it." I stepped up and said: "What is that, Judge Steck, one of your decisions?"

"Yes, and a most damnably iniquitous decision it was, too!" he answered.

I wish that judges would recognize their limitations as readily when they are on the bench as when they are off. When they are off, it seems so easy.

Nor can any reference to the bar of that time omit mention of Major Edward L. Smith, urbane, soft-spoken and courteous, but who would spring with the quickness of a leopard at an antagonist off his guard; Tom Macon, primal man from Missouri, who never willingly ate any diet more civilized than corn pone and bacon, who could beat the devil quoting Scripture, who described a contemporary orator as placing all his emphasis on his prepositions, who could grill a witness until the lid of Satan's cook stove seemed cool to the touch.

While we have no Westminster Abbey for their sarcophagi, the cold, dull marble of the tomb is theirs. Splendid even in ashes, they rest quietly under the murmurings of many and mighty conquests, in that temple of silence and reconciliation which affords, at last, a quiet repose to those whose minds and bodies have been shattered by contentions, struggles and adversary blows in the defense of the rights of others.

Judge John F. Dillon sat with Judge Dundy the second and third days of the term, and many times afterward, and Judge McCrary and Judge Brewer frequently presided during their respective terms as circuit judges.

The late Justice Samuel F. Miller, of the Supreme Court, frequently came here, in the old days, when the judges of that august tribunal were generally appointed with some reference to the circuits, and made periodical visits to the one to which assigned.

The Union Pacific Railroad, under some one of its many corporate aliases, was a party in Cause No. 1 on the docket; No. 2, and several thereafter, were bills brought by the United States to set aside alleged frauds against the government in respect to public lands. Nothing changes, in forty years, but men! The grand jury—and I think the late Dennis Sullivan was the last survivor of the panel—returned numerous true bills, principally against Mexicans. The court seems to have taken up their cases under the maxim: First in time, first in right. Manuel Vigil, having drawn the lowest number on the docket, was tried first, and acquitted by a jury of Gringoes. The others followed. A careful investigation of the facts will lead any careful man to the firm conclusion that each and every one was clearly guilty and most properly acquitted. Pioneer juries evidently applied the same principle, in the trial of Mexicans, that tenderfoot juries, in these soft days, apply upon the trial of young Piute Indian braves.

The court continued to occupy the Larimer Street quarters until May 6, 1884, when it was removed to the old Symes block, since destroyed by fire, at Sixteenth and Champa, where it remained until November 29, 1889, when it was shifted to the Gettysburg building. It did not move again until February 3, 1893, when it went into possession of the quarters prepared for it in the Federal building at Sixteenth and Arapahoe streets, which have housed it from thence until today. By the way, the circumstances of the erection of this building shows the celerity with which this great government of ours can act when driven to it—its capacity for quick preparation—the site of that building was selected in 1880, and the building was ready for occupancy thirteen years later!

There were many notable cases tried in that old Larimer Street court room. The Leadville apex cases brought political and financial fortune to a number of lawyers. Judge George G. Symes came here in the '70s. He had been territorial judge in Montana. He formed a partnership with Judge Decker, and became immediately prominent, through connection with the litigation over the Dives-Pelican mines at Georgetown. He espoused the apex side in the controversy over the Leadville formation, but was defeated. He purchased a corner on Sixteenth Street with his fees, built a block and went to Congress. Patterson & Thomas represented the defense. Both became rich, and the riches of one, at least, have continued to grow ever since. Both, at times, ran for governor, and one of them was finally elected. Both ran for the Senate many times, and each was ultimately elected senator. They defeated the apex for Leadville, but lost it for Aspen. The Aspen cases were tried later, and the apex side was espoused by Senator Teller, then in the very zenith of his power and influence.

C. J. Hughes first attained prominence in these Aspen apex litigations, through his association with Senator Teller, and laid the foundation of his fortune and subsequent senatorship.

On the day this court opened Colonel Edward F. Bishop, who had been a gallant soldier of the Union, in the conflict between the states, and who bore scars of that conflict, was appointed clerk of both the Circuit and the District courts, and his brother, Charles W., then a fat and chubby boy, occupied a desk in the little room where its meager records were to be written.

William A. Willard succeeded Colonel Bishop, when the latter resigned. On the death of Mr. Willard Capt. Francis W. Tupper, a one-legged veteran of the Civil War, was appointed by Judge Hallett clerk of the District Court, and Circuit Judge Caldwell appointed Capt. Robert Bailey, who had been his companion in arms, clerk of the Circuit Court.

Mr. Charles W. Bishop became clerk of the District Court on the death of Captain Tupper in 1900, and clerk of the Circuit Court on Captain Bailey's resignation in 1906. He held both places until the merger of the two courts, December 31, 1911, and still he serves, less changing than the law itself, immutable and inscrutable, but still believing:

"Life is not so short but that there is always time enough for courtesy."

The incumbent is the eighth marshal. His immediate predecessor, Dewey C. Bailey, served more than twice as long as the average term in this office.

Judge Moses Hallett took his seat on this bench January 23, 1877. How different the surroundings from those in which we are assembled! The venue of that day is laid in a poorly lighted, illy ventilated room, in a dilapidated building. The condition of the furniture is illustrated by a story which Judge Hallett told me, not long before he died.

It was shortly after Judge Hallett took his place upon this bench. Gen. Samuel E. Brown came in one day, and taking his seat on one of the chairs of the court room, the perforated bottoms of which were held in place with tacks, he quickly discovered that a tack had been inverted. Immediately arising and addressing the court, he said:

"This court is sharp at the wrong end."

General Brown, first attorney general of the territory, was the wag and wit of the bar. Judge Markham said of him that he would rather get off a joke than get a verdict, and that if he had been paid a dollar apiece for all the suits he had appeared in, he'd have been the richest man in the world.

The unique and extraordinary character, who was first judge of this district, must necessarily occupy the foreground in any picture of this court for the period covered by this sketch. He presided here for thirty years, and thus rounded out a forty-year term upon the bench in Colorado. Nature is not sufficiently fecund, in departing from formula, to lend reasonable expectation that he will be approached, much less duplicated, within the century.

Dignified in bearing, austere in manner, unapproachable in demeanor, frigid in speech, there dwelt beneath this cold and forbidding exterior a heart in which the law of kindness was as well known as was the law of the land in the head above the heart.

When I had occasion to seek his aid and that of others for a pioneer lawyer who was in distress, he responded more liberally than any other man approached and in a spirit which showed that an ancient quarrel had left no bitterness. Behind the stern demand for the respect due the judicial office and judicial proceedings, there dwelt a modesty and a simplicity which few were privileged to know or understand. When with him in Washington, during and just before the Cleveland inaugural of 1885, he was turning away from the bar of the Supreme Court, because, on that day, only members of that bar were admitted within the rail. Another lawyer made known the position Judge Hallett was too modest to mention, and he was immediately seated inside the rail. I believe he had never before been present at a session of the Supreme Court.

The written law he knew; the precepts which are writ, in a dead language, upon the lintel of this building and upon these walls, were living sentiments in his heart and guide posts of his daily walk.