History of Linn County Iowa Part 36

_Early Linn County Lawyers and Courts_

BY JUDGE MILO P. SMITH

Fifty years ago the judiciary of this county, as well as of the entire country, was quite different from what it now is. There were but two terms of court in a county, and Linn being a large county, terms here lasted about two or three weeks. In the smaller counties, one week or less was sufficient for the transaction of all the business. The grand jury was composed of fifteen men instead of five or seven, as at present, and twelve out of the fifteen had to concur in order to find a bill of indictment. At present the concurrence of a less number than the whole is sufficient. The members of the grand jury selected their own clerk from their own number. They had no authority to act on the minutes of the examining magistrate, but it was obligatory on them to have the witnesses before them, and to examine them personally.

There was no official shorthand reporter to take down the evidence on the trial of cases in court. If the attorneys desired to perpetuate the testimony, or any part of it, they either wrote it down in long hand themselves, or selected some outside person to do it; generally some young lawyer. And sometimes the judge would make the only minutes of the trial that were kept. From these imperfect notes, however taken, the judge was required to determine what should go to the supreme court when he came to settle the bill of exceptions: no easy task. When court opened on the first day of the term--which was done with great outcry--the judge at once empaneled the grand jury, and then proceeded to make what was called a "preliminary" call of the calendar, at which cases that were not for trial were dismissed, continued, marked settled, or otherwise disposed of. When that call was completed, he then made the "peremptory" call, and all cases that were for trial were then disposed of as they were reached. There was no a.s.signment of cases for trial as now practiced, but the lawyers had to be ready in each case when reached.

Court week was generally regarded by the people as a sort of a picnic or holiday, and they came in from the country for several miles around to hear the lawyers spar with each other, and catch the "rulings of the court." The court room was generally packed with listeners. Then political meetings were generally held during that week when everybody was there and lawyers ready to do the speaking; and they furnished fine entertainments indeed.

The bar of Linn county in the early fifties was an unusually strong one, said by some to be the strongest in the state. There were Judge N.

W. Isbell, Judge Isaac Cook, Judge George Greene, Judge William Smyth, and Col. I. M. Preston. A little in the rear of the above worthies were N. M. Hubbard, R. D. Stephens, Wm. G. Thompson, J. H. Young, Thomas Corbett, and J. W. Dudley. Except Judge Greene and J. W. Dudley, all of these persons lived in Marion.

N. W. Isbell, the first county judge in this county, was selected by the legislature in 1855 as a member of the supreme court, and filled the position with honor and credit to himself and the state for several years, and was afterwards appointed judge of the district court during the Civil war, but resigned both positions on account of ill health. He was a very learned man and a profound lawyer. He greatly enjoyed the investigation of legal questions, possessed an acute and a.n.a.lytical mind, and one richly stored with the results of historical and general reading. In the practice he was not partial to jury trials, much preferring the presentation of legal questions to the court. He had quite an apt.i.tude for affairs, and became successful as an enterprising railroad builder, projecting the old "Air Line" Railroad, the pioneer of the present route of the C., M. & St. P. Railway across the state.

He left a comfortable estate to his family, dying about the year 1865.

He was of small stature and insignificant in appearance, but with a large head, though small features. Indeed he very much resembled the Hon. Wm. H. Seward in face, head, and stature. He was rather of an irascible temperament and consequently easily thrown off his balance--but no member of the bar was more highly respected than was Judge Isbell for uprightness, honesty of purpose, general intelligence, deep reading in general literature as well as in the law; and his blameless life made him a beloved citizen.

I omit further mention of Judge Greene as there is elsewhere in this work a lengthy sketch of him.

Isaac Cook was born and raised in eastern Pennsylvania and became the possessor of a sound education as a basis for the legal studies he afterward pursued. He served quite a while on the district bench, and was there noted for the care, time, and fairness he devoted to the cases he was called on to hear and decide. His mind was not so quick or rapid in its movements as some others, but it was very accurate in its conclusions. He was a fine chancery and corporation lawyer, and no better pleader ever drew a pet.i.tion than Judge Cook. He was for many years toward the close of his life general counsel for the predecessors of the C. & N. W. Railway Company and the Iowa Railroad Land Company in the state of Iowa. Though he had an office first in Marion and then in Cedar Rapids, he always lived on his farm just south of the former place, in a plain, comfortable brick house. He was a broad shouldered, stock-built man of a dark complexion, and chewed an immense quant.i.ty of tobacco. He had, we believe, more practice in the supreme court of the United States than any other lawyer in Iowa in his day.

William Smyth, first county attorney of Linn county, was appointed judge of the district court to succeed Judge J. P. Carleton about the year 1854, when he was but thirty years of age. He was regarded as an ideal judge. He was of Scotch-Irish descent, and had received a thorough education when young. His education was perhaps more thorough than broad, owing no doubt to his early surroundings. His legal lore was as near exact and profound as was possible, and covered completely the whole circle of legal learning. One who knew him well said, that in commercial law, the law of real estate, and in pleading, he had no superiors and but few equals in the state. He was a trial lawyer in the fullest sense of that term. Careful in the preparation of his cases, methodical in the introduction of his testimony; and in his presentation of his client's cause to a jury, his arguments were close and convincing, logical if not eloquent. He was, perhaps, after his retirement from the district bench, generally regarded as the head of the bar of the county. His knowledge of the affairs of the nation, and the principles of our government was most exact and comprehensive. For wealth of general information, profundity of legal learning, and urbanity of manner and dignity of deportment, he was not surpa.s.sed by any man in the state. Indeed he was early recognized as one of the leaders in affairs as well as of the bar of the state. He and the firm of which he was a member had the largest practice and the best clientage in the county. His practice extended to many of the neighboring counties, such as Benton, Tama, and Iowa, where he had local partners, and where he attended the terms of court. He was a valuable member of the committee that revised the laws of the state as embodied in the Revision of 1860. He was offered a place on the supreme court bench but declined it. He was a delegate to the Republican National Convention at Chicago in 1860--having been a democrat before the slavery question gave rise to the republican party, he naturally sided with Governor Chase, whose political path led in the same direction as his own, and gave that statesman his earnest and persistent support in the convention, voting for him to the last as his choice for president. He was a formidable compet.i.tor of Governor James W. Grimes when the latter was elected to the United States senate in 1858. In 1868 he was elected to congress from this district and died while such member in 1870, at the early age of forty-six. Of all that goes to make up a first rate man and citizen--intelligence, ability, industry, perseverance, honesty, and morality, he was in full possession, and enjoyed the confidence of the people to a greater degree than any other citizen in the county. He was patriotic and brave and served during the war of the rebellion as colonel of an Iowa regiment, and while so serving, he contracted the disease that caused his early death. He was the fortunate possessor of a splendid frame, being nearly six feet in height, and had a large, well formed head--his carriage erect and movements stately and deliberate. He was a model christian gentleman, courtly and polite, with a winning personality. He too was a man of affairs and left a comfortable estate to his family.

Colonel I. M. Preston, born in 1813, was in many respects a remarkable man. Thrown on his own resources when quite young, he learned the trade of carpenter and joiner, but read law while working at his trade, was admitted when about thirty years of age, came to Marion, opened an office, and at once took a position in the front rank of trial lawyers.

He was particularly successful as a criminal lawyer. He possessed a very quick, subtle, and keen mind, and was remarkably resourceful in expedients in the trial of cases. Some lawyers were better pleaders others more learned in the law, but none more apt in furnishing the facts to fit the case, and but few, if any, excelled him in marshalling those facts in his presentation to the jury. In time he acquired great fame throughout the state as a lawyer and public speaker. He was early appointed district attorney for the district in which he lived, and in 1846 was commissioned by Governor Clark colonel of an Iowa regiment of militia. He also served as county judge of Linn county, and at different times served in both branches of the legislature. He was the father of Judge J. H. Preston and E. C. Preston, both members of the bar, and residents of the city of Cedar Rapids.

N. M. Hubbard, later known as Judge Hubbard, was certainly the most brilliant and noted lawyer that ever lived in or graced the bar of this county. He was appointed in 1865 judge of the district court, and served till January 1, 1867. With a mind keen, bright and luminous, a sound understanding, a rich store of observation, an unparalleled command of language, a readiness in repartee, and unlimited power of invective, he was unsurpa.s.sed by any man in the state, and by but few in the nation. He was for thirty years general attorney for the C. & N.

W. Railway Company in Iowa, and upon his death left a generous estate.

Hubbard's early partner, R. D. Stephens, while a good lawyer, was certainly a past master in finance, and was better known as a banker than lawyer. He established the First National Bank at Marion, and the Merchants National Bank in Cedar Rapids. He died several years ago, quite wealthy. Both Hubbard and Stephens came to Linn county from the state of New York in 1854. In the political campaign of 1856, Hubbard edited the _Linn County Register_, predecessor to the _Marion Register_.

Major J. B. Young was probably the possessor of the best education of any of the lawyers of his time, and was a well read lawyer, a strong advocate, careful and painstaking, but unfortunately possessed an irritableness and quickness of temper that was not calculated to advance the cause of his client in a law suit. He died when comparatively young, when on his way home from California where he had gone on account of his failing health.

W. G. Thompson, better known as Major Thompson or Judge Thompson, still resides here at the ripe old age of eighty-one. But few of the present generation know all there is about Judge Thompson. Born and reared in the state of Pennsylvania of Scotch parentage, with a fair academical education, admitted to the bar when a little past twenty-one, he came to Linn county in 1853, and at once leaped into prominence as a lawyer and politician. In quickness of mind, versatility in extremity, readiness of retort, flashings of wit, volubility of speech, touches of pathos, flights of eloquence, and geniality of disposition, and popularity with the ma.s.ses, he had no superior in eastern Iowa, if he had an equal. It has been said of him that he could sit down to a trial table in a case of which he had never before heard, and try it just as well as though he had had months of preparation. He has been county attorney, state senator, presidential elector, major of the Twentieth Iowa Volunteer Infantry, district attorney, chief justice of Idaho, member of the legislature, member of congress, and judge of the district court. And in filling all of these positions, he has served the people faithfully and well. And in private life and as a pract.i.tioner he has surely been "a man without a model and without a shadow."

J. W. Dudley lived in Cedar Rapids as Thomas Corbett did in Marion.

They were both careful, pains-taking, and judicious lawyers, not particularly noted in any special respect, but safe, sound, and trustworthy. They have both been long since dead.

J. J. Child and I. N. Whittam were also members of the bar in the early '50s. They both lived in Cedar Rapids. Judge Whittam was noted for his industry, care and patience in regard to any matter in which he became engaged. He did not claim to be a man of mark or a great lawyer, but certainly acquired and retained the confidence as an advisor of many of the best citizens in Cedar Rapids and vicinity.

J. J. Child, long since dead, was said by those who knew him best to be one of the best lawyers in the state. Though not an advocate, his learning in law was wide and deep, and no client ever made a mistake in following his advice. Unfortunately his habits of life seriously impeded the good results that could have flowed from such a prolific source.

After these, came others to fill their places, but the most of them are here now, and have received special reference and personal mention in these pages.

The entire state in 1857 was divided into twelve judicial districts, with one judge in each district. Accompanying the act was the const.i.tutional provision that new districts could not be created oftener than one new district in four years. Within about ten years the business in court became so congested that relief was necessary and was sought in all directions. Finally, in 1868, the legislature pa.s.sed a circuit court bill, which by its terms divided every district into two circuits and provided a judge for each circuit. The circuit court had concurrent jurisdiction with the district court in all cases at law and in equity, and sole jurisdiction in probate matters and in appeals from justices of the peace, but it did not have jurisdiction in criminal cases. The same legislature abolished the county court that formerly had jurisdiction of probate matters. In further defining the duties and powers of this court, the law created what was called a general term, to which all appeals from, and application for the correction of errors by the district and circuit courts would lie. The personnel of that court consisted of the judge of the district and the two circuit judges, and it sat twice a year. In this district one of the sessions was held in Marion and the other in Iowa City. The district comprised the counties of Jones, Cedar, Linn, Johnson, Benton, Iowa, and Tama.

The first three counties const.i.tuted one circuit, and the latter four the other one. The limitation of the right to appeal when the amount in controversy was less than one hundred dollars was then pa.s.sed. An appeal finally lay from the decision to the general term of the supreme court. When a case was decided at the general term, the judge to whom it was referred for a decision wrote out the decision in an opinion as the supreme court judges do, but the opinions were not reported in the books.

[Ill.u.s.tration: PUBLIC SCHOOL AT SPRINGVILLE]

The next legislature materially changed the law. It abolished the general term and consolidated the two circuits, cutting out one of the judges--each court retaining the jurisdiction it had--and provided for appeals directly to the supreme court.

Then in 1886, the const.i.tution of the state was radically changed by a vote of the people so that the limitation on the number of judicial districts and number of judges was removed. The circuit court was abolished, the office of district attorney was abolished, and that of county attorney created. There was a prosecuting attorney for each district before. The legislature then created as many districts as was thought necessary, and as many judges to a district as were deemed sufficient to transact the business. This law is still in force. This became the new eighteenth judicial district, composed of the counties of Linn, Cedar, and Jones, with three judges.

The first district judge for Linn county after the adoption of the new const.i.tution in 1857, was Hon. William E. Miller, of Iowa City, and Isaac L. Allen, of Toledo, was elected district attorney--this in 1858.

Allen was afterwards attorney general of the state.

Judge Miller was well equipped for the position. With a thorough common school education, and having been a practical machinist when young, and with strong common sense, he had a naturally good judicial mind that had been improved by careful study and years of practice in the law. He came to the bench an intelligent, fair, and courteous judge. He resigned in 1862 and entered the Union army as colonel of the Twenty-eighth Iowa Volunteer Infantry. He afterwards served as circuit judge and finally as supreme judge of the state. From the resignation of Judge Miller till January 1, 1867, the district bench was graced in its occupancy by Judge N. W. Isbell, C. H. Conklin, and N. M. Hubbard.

Judge Miller was a broad-shouldered, short, squatty fellow, and though a good lawyer and jurist, he was an indifferent advocate, and not particularly strong as a trial lawyer.

Judge Conklin was probably the most scholarly, accomplished and profound lawyer that ever sat on the district bench in this part of the state. His home was in Vinton, and while he lived among the people there he did not seem to be of them. He was a strong, tall, raw-boned man, always carefully dressed, with a most marked intellectual face, and he was certainly one of the most eloquent advocates that ever stood before a jury in eastern Iowa.

Judge James H. Rothrock, of Tipton, was elected judge in 1866, and served on the district bench till in February, 1876, when he was, by the governor, appointed to a seat on the supreme bench, which position he filled for over twenty years, when he voluntarily declined a further renomination. He, too, entered the Union army in 1862 as lieutenant colonel of the Thirty-fifth Iowa Volunteer Infantry, and served with credit till sickness compelled him to resign and come home. Judge Rothrock was not a learned man in the sense of having a college education or having possessed an extensive breadth of general reading in history or science, nor was he fluent of speech, or particularly adroit as a pract.i.tioner, but he possessed naturally good judgment, a most thorough common English education, a good knowledge of the law and its basic principles, a sound understanding, with an innate sense of justice. He was patient and even tempered, dignified, and kind. He made a splendid _nisi prius_ judge. His opinions were always plain, couched in good strong Anglo-Saxon, terse and sound, and will long bear the close and sharp criticism of posterity. Whenever he announced a principle of law, it was accepted without dispute as the law on the point involved. Judge Rothrock was a large man of fine physique, impressible presence, and very genial when off the bench.

The Hon. John Shane, of Vinton, succeeded Judge Rothrock on the bench of this district in 1876 and served till 1882, when he resigned on account of ill health. He possessed a much better education than did Judge Rothrock, and the scope of his general reading was not only broad, but judiciously directed. He loved the law for the very sake of it and never tired of investigating its ofttimes hidden mysteries. He was well liked as a judge, was convivial and sociable to a degree.

The judges who have filled the position on the district bench since Judge Shane's retirement are many and able, but can scarcely be said to belong to the olden time.

Of the few circuit judges that held court in this county, we can say that they graced the position they filled with ease, but they belong rather to the present time than to the past age. But Judges Yates, McKean, and Hedges will long be remembered by the older inhabitants as capable, learned, and upright judges.

In the palmy days of the lawyers and judges described, the law libraries were meagre and the books few. There are probably now a dozen law libraries in the county, any one of which contains more books than were in the county in 1860, and there are some that contain twice or three times as many. The practicing attorney was then thrown more upon his own resources, and compelled to depend more on his own power of a.n.a.lysis and discrimination than at the present time, which doubtless made them stronger, more self-reliant, and resourceful. And the judges were called upon to decide rather how the law should be than how it had been p.r.o.nounced to be by some other tribunal, which was no doubt strengthening to them.

CHAPTER XXI

_Chatty Mention of Bench and Bar_

The history of any community is not complete without a sketch of the members of the bar, for in the Temple of Justice every phase of human life is seen. "Here one hears the cry for vengeance and also the kind pleadings for mercy." The members of the bar, especially in the early day, understood public opinion and discovered what men truly were and not what they were reputed to be. At this early day the lawyers were the tribunes of the people. They were men of brilliant intellect and of intense pa.s.sions, and in trials which created universal interest in the spa.r.s.ely settled community they swayed the minds and hearts of their hearers in a remarkable degree. It was an age of oratory, and Linn county in that day had its quota of brilliant intellects who remained here for a shorter or longer period of time and in no small degree a.s.sisted in the upbuilding of the county and the state.

In order to make this sketch as brief as possible, and in an endeavor to picture the men as they were, we shall attempt to give a little of the humorous side of their characters and follow in the footsteps of Channing who said "anecdotes are worth pages of biographies."

Many of the early members of the bar were men of education and refinement, possessing a snappy humor that set courts and juries roaring. Many a long day's trial was brightened by some sally of native wit fresh from the frontier. These men were active in politics, were promoters of steamboat lines, stage companies, and paper railroads, who, in course of time, became legislatures, judges, and financiers.

They all labored for the upbuilding of the infant state, where they had invested all their surplus means, having faith in Iowa's future. In every way possible they tried to upbuild its infant industries.

Linn county was set off by act of legislature in 1837, while Iowa was then a part of Wisconsin Territory. In August Governor Lucas set off Johnson, Cedar, Jones and Linn counties in one legislative district.

The attorneys from Linn county who appeared at Iowa City at the July term, A. D. 1847, were Isaac M. Preston, John David and William Smythe, all of whom became noted lawyers before that body later. The judges on the bench at this time were three well known Iowa jurists: Williams, Wilson, and Kinney.

The first court was held at Marion October 26, 1840, presided over by Joseph Williams, who had been appointed to the judgeship July 25, 1838.

At this term of court, according to the records, there were present District Attorney W. G. Woodward for the federal government, R. P.

Lowe, prosecuting attorney, H. W. Gray, sheriff, T. H. Tryon, clerk, and L. Mallory, marshal of the district. On the first grand jury sat Israel Mitch.e.l.l, founder of Westport, who had been appointed probate judge on January 16 of the previous year. The first justices in the county were: H. B. Burnap, John G. Cole, John M. Afferty, John Crow, William Abbe, and Israel Mitch.e.l.l. Some of the first county judges were: Norman Isbell, Dan Lothian, J. Elliott, A. H. Dumont, and J. M.

Berry.

During these early days there were two terms of court, one in January, and the other in June. The cases brought involved small amounts, but for the number of inhabitants of the county there was a great deal more litigation then than now. Some of the early lawyers in Marion and Cedar Rapids were: I. M. Preston, J. E. Sanford, N. W. Isbell, Isaac Cook, Henry Harman, William Smyth, J. J. Child, Joe B. Young, Dan Lothian, C. M. Hollis, J. David. N. M. Hubbard, R. D. Stephens, Tom Corbett, George Greene, Israel Mitch.e.l.l, D. O. Finch, A. S. Belt, John Mitch.e.l.l, G. A. Gray, and C. L. Murray.

Among the attorneys in practice during the early '50s in Cedar Rapids were the following: Henry Lehman, E. M. Bates, C. V. Tousley, J. J.

Child, R. G. Welcher, D. M. McIntosh, T. J. Dudley, Jr., A. Sidney Belt, and Dan O. Finch, the latter being also editor of the _Progressive Era_. In 1861 came J. Munger and N. R. Graham, and during the next year Edward Stark, who formed a partnership with A. S. Belt.