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The Bench and Bar

When Kansas was admitted into the Union as a State on January 29, 1861, Allen county became a part of the fourth judicial district and Solon O. Thacher of Lawrence, became the judge of such district, and held the courts therein until October 1864, when he resigned and D. P. Lowe of Ft. Scott was appointed to fill the vacancy, but Judge Lowe never held a term of court in Allen County. At the November election in 1864, D. M. Valentine of Ottawa was elected to succeed Judge Lowe and took the office as judge of the fourth judicial district on January 8, 1865. Judge Valentine held all the terms of the district court in Allen County during the years 1865 and 1866—the several terms commencing as follows: May 1, 1865, October 30, 1865, April 30, 1866 and October 29, 1866. By an act of the legislature which took effect March 4, 1867, Allen County was taken from the fourth judicial district and placed in a new district then created and numbered seven, and it still remains in the seventh judicial district.

The 7th judicial district, as first formed comprised the counties of Anderson, Allen, Neosho, Labette, Woodson and Wilson. Hon. Wm. Spriggs, of Garnett, Anderson county, was the first Judge of the new district. He was appointed by Governor Crawford March 4, 1867, and held the office until January 13, 1868. At the general election in November, 1867, Hon. John R. Goodin, of Humboldt, Allen county, was elected for a regular term of four years, and succeeded Judge Spriggs. Judge Goodin was re-elected in 1871, but in 1874 was elected to Congress and resigned the judgeship February 1, 1875. Shortly thereafter Hon. W. H. Talcott, of Iola, Allen county, was appointed by Governor Osborn, to fill the vacancy caused by the resignation of Judge Goodin. At the general election in November, 1875, Judge Talcott was elected for the term of four years beginning on the second Monday of January, 1875, and Honorable Peter Bell, of Woodson county, was elected for the "short term", that is to say, the period intervening between the election of 1875 and the official canvass of the vote, and the beginning of the regular term on the second Monday of the following January. Judge Talcott was re-elected in 1879. At the general election in 1883, Leander Stillwell who then resided at Osage Mission (now St. Paul) in Neosho Co., was elected judge, and was re-elected in 1887, 1891, 1895 and 1899. Upon the completion of his present term Judge Stillwell will have served twenty years on the bench of this district, a longer period of consecutive service in that capacity than stands to the credit of any other man in the history of Kansas.

With scarcely an exception the judges of this district have been men of character and ability. Among them all none has stood higher than

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Judge D. M. Valentine, who was promoted from the district to the Supreme Bench upon which he served with great distinction for a full quarter of a century. Since his retirement from the bench, he has been in the active practice of his profession as the head of one of the strongest law firms in Topeka. Although far advanced in years his memory is unimpaired, and the publishers of this history are glad to be able to include in this chapter the following contribution from his still facile pen:

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Judge Valentine's Recollections.

The first term of the District Court which I held in Allen County was held in Humboldt, which was then the county seat, in an old church, which had previously and during the latter part of the war been occupied by Union soldiers as barracks. At this term J. H. Campbell was the county attorney; J. C. Redfield, sheriff; George A. Miller, clerk, and John Francis, deputy sheriff and bailiff for the court. All the officers performed their duties faithfully, and I have never seen a more faithful officer than John Francis. He was afterwards clerk of the District Court of Allen County, and has since held several important offices, among which were the offices of county treasurer and state treasurer. There were present at that court the following attorneys: J. H. Campbell, Eli Gilbert, Chas. P. Twiss, John R. Goodin, Orlin Thurston, Nelson F. Acers, W. S. Newberry and Joseph Bond, all residents of Allen County, the last three being admitted to practice during the term. Judge Lowe, of Fort Scott, G. W. Smith, of Lawrence, and John G. Lindsay of Garnett also attended that term. All the aforementioned attorneys generally attended the courts afterwards held in Allen County, and also the following attorneys generally attended the subsequent terms: H. W. Talcott and Mr. Sechrist, residents of Allen County, Judge R. M. Ruggles, of Emporia, and Joel K. Goodin, of Ottawa, also attended at least one term of the court in Allen County. Other attorneys may also have attended whom I do not now remember.

Col. Thurston had previously been a state senator from Allen County, and Col. Twiss was then a state senator from that county. John R. Goodin was afterwards, judge of the Seventh Judicial District, including Allen County, and was afterwards a member of congress. H. W. Talcott was also later the judge of that district and county. Judge Lowe was afterwards judge of the Sixth Judicial District, and afterwards a member of congress. Nelson F. Acers was afterwards a United States collector of internal revenue for Kansas. Joseph Bond was also at that time editor of the "Weekly Herald," a paper published at Humboldt. As above stated, the first term of court which I held in Allen County, was held at Humboldt; but the next three terms were held at Iola, the county seat having been removed from Humboldt to Iola in the meantime. A grand jury was convened and had a session during the first term, which grand jury found and returned several indictments.

During the terms of the District Court which I held in Allen County, many humorous incidents occurred. Among them a prosecution for illegal-

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ly selling intoxicating liquor, was tried before a jury. The Iiquor sold was beer, and the defense was that the beer sold was not an intoxicating liquor. Evidence was introduced tending to show both that the beer was intoxicating and that it was not intoxicating. Judge Gilbert was a witness in the case and testified that he had purchased several bottles of the beer, under a prescription from a physician, and had drunk the beer and that it did not intoxicate him. The lawyers had considerable sport over this testimony, and one of them suggested that it was like the Dutchman, who said he could drink fifty or sixty glasses of beer without becoming intoxicated, but he did not know what effect it would have on a man if he should make a hog of himself. Judge Gilbert was a very good speaker before a jury. In one case he and Judge Ruggles each made an argument before the jury and while Judge Ruggles was an ex-judge of the Fifth Judicial District and an eminent lawyer, yet some of the lawyers who heard the argument expressed the opinion that Judge Gilbert made fully as good an argument as Judge Ruggles, if not a better one. The lawyers also had considerable sport over the manner in which Judge Gilbert talked to litigants who wished to employ him to make an argument before a jury. The lawyers stated that Judge Gilbert informed the litigants that he would make just a common speech to the jury for $25.00; that he would make a good speech for $50.00. but if they wanted him to make one of his "hell-roarin" speeches, they must pay him $100.00. Judge Gilbert had a few favorite phrases which he liked to repeat to juries. One was, in illustrating the purity or honesty of a person, or the reverse, he would say that he or she was or was not "As pure as the icicle from the purest snow on Diana's temple," or would sometimes vary this by saying that he or she was or was not "As pure as the purest snow on Alpine Heights." Col. Thurston also showed ability in trying cases. In one of his cases, which was for a breach of promise of marriage, in which he was for the plaintiff, and showed a great deal of feeling, he tried it extraordinarily well, and made an excellent speech to the jury. The jury found a verdict in favor of the plaintiff for $3.500 which, under the circumstances, the defendant not being a wealthy man, was considered a liberal verdict. At one time while the District Court was in session, a preliminary examination was had out of court before a justice of the peace, in which the defendants were charged with murder in the first degree. It was claimed that two or three persons had been guilty of stealing horses in that community, and that some of the people of the community had hanged them until they were dead. The persons charged with doing the hanging were then charged with murder. Judge G. W. Smith defended them. Among his suggestions was that the persons killed had, after stealing the horses, been stricken with remorse and that they had hanged themselves, but in reply to this, it was suggested that that was impossible for all the persons hanged had their hands tied behind them when they were hanged. But Judge Smith replied, as he said a Dutch justice in Pennsylvania, where he came from once replied, when it was suggested that a person assaulted who had lost his nose in the encounter, had bitten it off himself; and the other side suggested that that was impossible. But

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the Dutch justice replied that nothing was impossible "mit Got." During one of the terms of court which I held in Allen County, a person who was admitted to the bar, furnished to the bench and bar an oyster supper with the etceteras, and the bench and bar generally attended and seemed to enjoy it and to have a good and jovial time. Many stories were told by members of the bar, and Judge John R. Goodin, who was a good singer, sang some good songs; but, to the credit of the Allen County Bar, I will state that no one of them appeared to become intoxicated. At the term of court held at Humboldt, an indictment was found against George W. Stamps for murder in the first degree. He was tried at that term and at the next term for this offense, and the jury at each trial disagreed. The evidence tended to show that he was a Union soldier, and during the war he had killed a man in that county who claimed to be and was a rebel sympathizer, and in those days it was difficult to obtain a verdict of guilty from any jury under such circumstances. At the third term he pleaded guilty of manslaughter in the first degree and was sentenced to ten years imprisonment in the penitentiary. He was then permitted to travel over the county to obtain signers to a petition for his pardon. He obtained a very large number of signatures to his petition and carried it himself to the governor at Topeka and obtained a pardon. He was never taken to the penitentiary. During the terms of the District Court which I held in Allen County many other humorous incidents occurred, which have now passed from my memory.

During those early times we had but few law books in Allen County. We had the Kansas Statutes, including the session laws and the compiled laws of 1862. We also had Swan's Pleadings and Precedents, Nash's Pleadings and Practice, Chitty's Pleadings, Blackstone's Commentaries, Kent's Commentaries, Parsons on Contracts, Greenleaf's Evidence, Wharton's Criminal Law, Wharton's Precedents of Indictments and Pleas, and a few others. We had very few of the reports of adjudicated cases. The first volume of the Kansas Reports was not published until about the close of the year 1864, and the succeeding volumes came later. The lawyers, however, in those days discussed the questions which they presented to the courts and juries, more upon general principles and the law as stated in the text books, and less with regard to decisions as found in the reports of adjudicated cases than they do now.

At that time, which was just at the close of the war of the rebellion, there was a greater percentage of criminal cases, as compared with civil cases than there is now; and the percentage of prosecutions for assaults and batteries, assaults with intent to kill or injure, and for murder and manslaughter, was also much greater then than now. With these exceptions the business of the Courts of Allen County in those days was very similar to the business of the courts in that county at present.

D. M. VALENTINE.

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Humboldt Lawyers Prior to 1880.

BY HON. L W. KEPLINGER

In all that engaged public interest, or went to make up her early history, whether it were an incipent county seat contest, an election to vote bonds to aid railroads or build machine shops, or a scheme to evade such bonds already voted, the lawyers of Allen County were conspicuously at the front. To preserve their names in history, and more especially to transmit to future generations of Allen County lawyers the memory of their predecessors who, during and prior to the seventies, drove angling across the unfenced quarter sections, of which it was composed, to talk politics in school houses, or try lawsuits before justices on the open prairie, is the object of this article.

Strongly marked characters, full of ambition, for the most part of exceptional ability, schooled and moulded by the conditions which prevailed during the civil war, if not actual participants in that great strife, the lawyers of Allen County, during the period referred to, were a most interesting body of men. No one who knew them will doubt that men like J. R. Goodin, Orlin Thurston, J. Q. A. Porter, H. C. Whitney, G. P. Smith, J. C. Murray, J. B. F. Cates and H. M. Burleigh, fall easily in the class of those who, as congressmen and senators, or in other fields of effort, have attained distinction.

The presence of the United States land office at Humboldt made that point the chief center of attraction for lawyers who came to Allen County. I was better acquainted with those who came there, and it is of the Humboldt lawyers I shall now speak.

ORLIN THURSTON.

Orlin Thurston, who came from Ohio about the year 1857, was the most forceful character of the group, and the one most capable of influencing the community in which he lived, had his disposition been somewhat different. He was at one time during the war colonel of a regiment of State militia, which rendered efficient service on the border during the summer and fall of 1861. He was of medium height, strong physique and most resolute purpose, thoroughly practical and little swayed by sentiment. He was a most excellent judge of men and affairs, and never failed to impress others with confidence in his judgment and sagacity. As a speaker, though not an orator, he was earnest, forcible and impressive. He gave his attention largely to business affairs, outside of law, and seldom appeared in court. He once represented his district in the State senate, but his peculiarities of temperament and disposition debarred him from the high career for which his strong qualities so eminently fitted him.

His general deportment was that of a person of distinction. All old timers will remember the Colonel's stately going with driver and coach to and from his river-bank home, atmosphered as it was with unsavory legend, aristocratic and repellent.

Few men ever so little cared for, sought after, or received the general good will of the public, especially in his later years. At the same time,

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among those he considered his friends, he was the most courteous, genial and obliging of men. I am fully persuaded some people thought ill of him because they disliked him vastly more than they disliked him because of any evil there was in him. To a very great extent, at least, the trouble was he was too much of the Corialanus type. If ever he broke a pledge, or spoke the word that was not true, the writer who was closely connected with him for years, is ignorant of the fact and he now lifts his hat to the memory of his friend and former law partner, Colonel Orlin Thurston.

JOHN R. GOODIN.

Here was a remarkable man, equally at ease in the presence of president or bootblack; good company for both and well interested in either. He was certainly the most companionable of men. Few men, and no Kansan, ever had more of the elements of personal popularity. Referring to his engaging manner, a client who had just come from paying him a fee, remarked in my hearing: "It just does me good to pay that man money." He was neither a money-maker nor a money-saver. Utterly incapable of close application; never a student; he possessed to a remarkable degree the faculty of assimilating the researches of others. He never read a book so long as he could find any one to talk to, and this was always easy for so brilliant a conversationalist to do. At the same time and without the slightest effort, with both tongue and pen he framed most exquisitely worded sentences. The chance remark of a juror on one occasion called forth a half-dozen impromptu verses, which speedily found their way through the eastern press. I noticed them in the editor's drawer of Harper's Magazine some years later.

He was a man of consummate tact, clear head, sound judgment and commanding presence. He specially excelled as a speaker. He did not orate, he just talked. But such talk! Imagine a Wendell Phillips, and the writer has heard Phillips, less learned, less cultured, more florid, in short more western, more given to anecdote, abounding in familiar illustrations and local reference, engaged in animated conversation with his audience, with an occasional and sometimes a prolonged rise to the impassioned, and you have Goodin, the orator.

Although a Democrat living in a district which was unanimously Republican, he was kept on the bench term after term until elected to congress in 1874, in a district in which his party was largely in the minority. Failing of re-election he resumed the practice of law at Humboldt. In the later seventies he was a candidate for governor on the opposition ticket but was unsuccessful. Judge Goodin was born at Tiffin, Ohio, December 14, 1836. He received his education at Kenton, Ohio, and came to Humboldt in the spring of 1859. He remained at Humboldt until 1883 when he removed to Wyandotte, now Kansas City, Kansas, where he remained in the practice of law until his death, which occurred in December, 1885.

ELI GILBERT.

Though not quite so early an arrival in Allen County, Eli Gilbert came west so early his eastern origin didn't count at all. He originated in Morgan County, Ohio, in 1821, and afterwards came to the then frontier in Iowa, where he remained until 1859

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when he came to Allen County. He, also was an orator, though not of the Wendell Phillips type, and for several years, over a wide extent of territory, his peculiar frontier oratory was largely a substitute for law libraries.

To a new-comer and prospective client who wished his services, not to assist in the trial, but because of his reputed influence over juries, he thus gravely gave rates. "For a few sensible remarks I charge $10.00; for a speech $15.00; but one of my regular 'hell-roarers' will cost you $25.00." It may be added, however, that whichever variety was contracted for, it was the last mentioned which was always forthcoming.

To the eternal envy of all future Allen County lawyers, let one incident in Judge Gilbert's career be reserved from oblivion. The necessities of a case required that the jury should be convinced the prosecuting witness had bitten off his own ear. The judge's eloquence rose to the occasion. Verdict, "not guilty." He was kindly disposed toward all men, convivial, full of jokes, stories and reminiscences, especially of a personal nature. Shakespeare's most pleasing character, who was in some respects a feeble imitator of the judge, will never know how lonesome he has been all these years until Eli Gilbert comes to swap auto-biographies with him in the land of shade.

Judge Gilbert was at one time Probate Judge of Allen County. He also represented his district one term in the legislature, where he voted for the right man for United States Senator and, as a consequence, received an appointment as Receiver of the United States Land Office, in the western part of the state. He is now nearing his end at Lawrence, Kansas, and all who ever knew him will wish him well.

JOHN Q. A. PORTER.

John Porter, who came from Ohio in 1867, had left Kansas about one year before I came. He was elected to the legislature in 1868 and, at the close of his term, for some mysterious reason, he never returned to Allen County. To this day, however, tradition assigns him a foremost place among the young men of promise and ambition who came to this country at the close of the war. He returned to Cincinnati, where he still continued to practice at one bar too many, which resulted in the usual wreck. In 1883 Porter came to Kansas City proposing to locate there. Instead he went to Albuquerque, New Mexico, where he was soon after found dead in the office of one of his old time Humboldt friends, then residing in that city.

J. B. F. CATES.

Here was an innovation. All others named came from north of the Mason and Dixon Line, but J. B. F. Cates came from the mountains of East Tennessee. Having neglected to change politics when he crossed the political equinox, he let politics alone when he came to Kansas and gave his attention exclusively to law. He settled at Humboldt in 1867 and remained there in the practice of his profession until 1878, when he removed to Kansas City, Missouri, where he speedily took rank among the foremost lawyers of that city. He continued in the practice there until 1884, when for some reason, for which he has never been able to give a satisfactory excuse, either to himself or his friends, he gypsied

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away to Florida where he abandoned Greenleaf and Blackstone and became the man with the hoe. After exchanging several thousand dollars for a good stock of orange grove experience, he gravitated back to his first love, Kansas, and the Seventh Judicial District. Settling temporarily in Fredonia, he divided his time between Kansas and Oklahoma, after which he came to Chanute, where he now resides within gunshot of old Allen, in which he will eventually be found. Being neither dead or otherwise absent, but still on the ground, delicacy forbids that freedom of treatment, the subject of this sketch would otherwise receive from his former associate, law partner and admiring friend. However, this much shall be said, though possibly not equal to some others in some respects, yet as an all-round lawyer, both in intellectual acumen and legal learning and skill as a practitioner, he easily stands the peer of any who came either before or after. The writer freely accords him the honor of being the best lawyer and worst penman in the whole group.

H. C. WHITNEY.

H. C. Whitney came to Humboldt at the close of the war. Of all the lawyers who came to Allen County Whitney was the most ambitious and the writer, who was on close terms of intimacy with him, is still of the opinion that in many respects his ability justified his ambition.

Prior to the war a young attorney of one of the outlying counties in Eastern Illinois, he was what might be termed a local partner of Lincoln. He evidently had the confidence of Lincoln, and almost every biography of Lincoln contains correspondence between them.

He was paymaster in the army during the civil war. At its close he came to Kansas for the purpose of becoming Congressman, United States Senator and afterwards President of the United States. He was a man of phenomenal memory. The world is indebted to Mr. Whitney for one of Lincoln's famous speeches, the one delivered at Bloomington, Illinois, in 1856, which was reproduced by Whitney from longhand notes taken by himself.

More than any man I ever knew, he was familiar with public affairs and public men. There was scarcely a man of prominence in the North during the Civil War whom he had not met and with whom he was not actually acquainted. Once after Thurston had returned from a trip East, he made this criticism: "When Thurston goes East he never meets anybody but hotel clerks and porters." It was never that way with Whitney. Whitney's appearance and manner were far from being pleasing, especially to strangers. In this respect there was the strongest contrast between him and Goodin. He was at one time in the State Senate but being unsuccessful in politics he removed to Chicago about '75 or '76 and entered the practice of law in that city with W. B. Scates former Chief Justice of Illinois. He seemed to succeed exceptionally well for some years, but in the midst of a divorce trial in which his client was one of the leading bankers of the city, he was all but fatally wounded in the head by a pistol shot fired by the opposing wife. It was years before he recovered and he never resumed his

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practice. Though by no means an orator, he was an exceptionally fluent and forcible speaker and writer. Since quitting the law practice he has written a work on marriage and divorce. Also a most interesting life of Lincoln of several hundred pages. He is now living somewhere in Massachusetts.

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