Early History of the Legal Profession This information appears in Chapter LXXVIII of "History of South Dakota" by Doane Robinson, Vol. I (1904), pages 463-469 and was scanned, OCRed and edited by Joy Fisher, sdgenweb@yahoo.com This file may be freely copied by individuals and non-profit organizations for their private use. Any other use, including publication, storage in a retrieval system, or transmission by electronic, mechanical, or other means requires the written approval of the file's author. This file is part of the SDGENWEB Archives. If you arrived here inside a frame or from a link from somewhere else, our front door is at http://www.usgwarchives.net/sd/sdfiles.htm CHAPTER LXXVIII BENCH AND BAR OF SOUTH DAKOTA. Just when the control of the action of individuals, through the operation of law, had its genesis in South Dakota may not again be known, but certain it is that the Rees and the Sioux had well defined codes of common law which extended to most of the relations of their simple lives treating of marriage and divorce, the rights of property, for the protection of game, the preservation of peace, and the observance of these laws was exacted with a fidelity unknown to modern days in our civilized society. No rule was adopted not essential to the happiness of the community, but the thing upon which public happiness was dependent must be observed at every cost. The administration of these laws were somewhat dependent upon the character of the matter at issue. Every camp had its policeman, appointed at the pleasure of the chief, and the enforcement of the law, as it affected petty offenses, was left to his arbitrary will. Quarrels, especially between women and children, little infractions of good morals, lie punished summarily with a cuff, a shake, or, in case of incorrigibles, by more severe punishment. He was judge, jury and executioner. In the more serious cases the matter was tried out in council and the punishment fixed by the council, and if a capital offense, the entire tribe took a hand in the execution. These tribal councils, in which the head men, with much dignity and circumstance, sat down to enquire into an alleged offense against the common law of the tribe, and to mete out the character of the punishment if the conviction ensued from the testimony, were the primitive courts of South Dakota. The inquest by council, however, appears to have been employed only when there was doubt of the guilt of the accused. When law was openly broken within the view of the tribe, the punishment was summarily administered by the people. Or, if the wrong was personal to some member of the tribe, he was left to take his own revenge, or to accept such reparation as could be agreed upon between the parties. The council, however, frequently assessed civil damages. When the fur trade became thoroughly established and the substantial posts were built and placed in command of a "burgeois," that functionary, by virtue of his position, became a sort of justice of the peace, having very large powers in the matter of the preservation of the peace and the punishment of offences. Kenneth McKenzie and William Laidlaw, at Port Pierre, were even more than mere justices, arrogating to themselves the prerogatives of the supreme court. Their jurisdiction was of course assumed, being based upon no statute. In fact during the greater portion of the fur period South Dakota, west of the Missouri, was not within any civil jurisdiction. Though they arbitrarily arrested and tried men, sentenced and imprisoned them, or sent them in chains to St. Louis, it is not recorded that their jurisdiction was ever questioned. Kelsey, trader at Fort George in 1842, went even to the extent of shooting four incorrigibles to death, and public opinion in the neighborhood quite justified his action, though he took fright and went to Mexico. Had he kept his nerve and stayed by his action, there is no doubt that he would have been sustained and justified. The fact is, that it was necessary for the post commandant to dispense justice with the iron hand if life was to be safe in the wilderness. It is not asserted that any innocent man was ever punished or the guilty unduly sentenced by these improvised courts. These courts were very much like the feudal administrations in early France and Germany, rather than like the miners' courts set up in the later days in the Black Hills. The latter were popular institutions, the officers of which were elected by the assembled people, and in which the cases were conducted after the recognized procedure of the lawful courts. So far as the record shows, the first regularly admitted lawyer to enter Dakota seems to have been Col. Henry Leavenworth, in 1823. Leavenworth had given up a successful law practice to volunteer in the war of 1812. He was so successful as a soldier that the authorities gave him a commission in the regular army and he lived the remainder of his life a soldier, and as the visit to South Dakota was a military one, it has no further pertinence to this topic. Wilmot W. Brookings was admitted to practice before coming to Dakota in 1857. Naturally he did not do much law business in the little frontier settlement, though, as we shall see, he grew into a high place in the profession in later years in Dakota. Henry Masters, the provisional governor at Sioux Falls, was also a lawyer and he maintained an office and did such business as came to his hand. He was also justice of the peace for Big Sioux county. His death, in September, 1859, cut short his career. He is reported to have been a lawyer of fine attainments. He may go into history as South Dakota's first practicing lawyer, and first regularly appointed white justice of the peace, the foundation stone in South Dakota's bench and bar. The first important case in which a South Dakota lawyer took part was tried in Sioux City, in 1859. S. B. Brookings, a brother of Judge Wilmot W., was accused of a murder, said to have been committed at his claim on the Iowa side of the Sioux river near the mouth of Rock river. He was arrested and taken to Sioux City for preliminary examination. His brother appeared as his counsel. He was bound over, escaped from jail, and was never brought to trial. Sixty days before the death of Governor Masters, Enos Stutsman arrived in Yankton with the first settlers there, on July 10, 1859. He was an able lawyer, but of course found little opportunity to exercise his powers. The first profitable business he had in his line were divorce cases, a line of business still said to he profitable to some Dakota lawyers. Enos, however, took a very simple and direct method of winning his suits. He simply ran for the legislature, was elected, had himself appointed to the proper committee and then introduced the necessary bills directly divorcing his clients. He had splendid success until, in 1864, Governor Edmunds' Episcopalian principles got in the way of Enos's brand of justice. Edmunds vetoed all divorce bills and compelled the lawyers to try their cases in court. In one of Enos's cases which Edmunds vetoed, as chairman of the committee to whom the bill was referred, he reported: "If the defendant is not already an inmate of a state's prison, he ought long ago to have been," and upon this showing the legislature promptly passed the bill. Notwithstanding this peculiar practice, Stutsman was a good deal of a man and he impressed a good deal of good legislation upon the statute books of Dakota during the many terms he was in the legislature. The territory of Dakota was created March 2, 1861, and a short time afterward President Lincoln appointed the territorial officers, sending out for chief justice Philemon Bliss, of Ohio, who later won reputation in the Missouri School of Law and as the author of a well-known work upon code pleading. Bliss came against the code for the first time in his Dakota experience and it was here that he conceived the notion and laid out the plan of his text book. Judge Bliss was assigned to the first, or Elk Point, district and held some terms of district court there and elsewhere in the territory. He took a claim on Brule creek. He heard some motions in chambers, acted as member of the territorial canvassing board and performed other statutory duties, but never sat in supreme court. Neither did his associates, B. P. Williston, of Pennsylvania. and Joseph L. Williams, of Tennessee. William E. Gleason, of Baltimore, Maryland, came with the first court as United States district attorney. With the coming of this court the bench and bar of the territory may be said to have for the first time been really established. Neither Williston or Williams left a record, or made an impression from which any adequate judgment of their efficiency may be ascertained. Gleason resigned to accept an appointment from Andrew Johnson as an associate justice and after a year resigned this place to go to Italy as a consul. He was a somewhat brilliant lawyer and judge, though, like his predecessors, he did not sit in the supreme court, no case yet having arisen of sufficient moment to warrant an appeal. As a lawyer he was rather unscrupulous in his methods, and after his return from Italy he engaged in practice in Baltimore, where he made money, but was finally convicted of perjury and disbarred. Gleason was followed as United States attorney by George H. Hand, who served until 1869. He was an able lawyer and an upright man, who throughout his long public service held the high regard and respect of his fellow citizens. About the time of Gleason's resignation, an entirely new court came in. Ara Bartlett, of Minnesota, who had been first appointed an associate justice to succeed Williston, was promoted to become chief justice, and Jefferson P. Kidder, of St. Paul, and John W. Boyle, of Vermillion, were appointed as associates. Some appeals came up to this court and in the spring of 1867 the first supreme court of Dakota territory sat in banc. The first opinion was written by Judge Kidder. Except an occasional admiralty case growing out of the steamboat business, there were no cases of importance in the earlier years, hot even on the criminal side. It speaks well for the morals of the pioneer community that during the ten years of settlement not a single murder occurred. Judge Kidder was the strong man of the bench, and was undoubtedly the first lawyer of the territory of that day, a position he continued to hold for many years. Gideon C. Moody located in Dakota in 1865, but as at first there was too little business to fully occupy his time he gave a good deal of attention to other business interests, and politics. In fact, however able a lawyer he may have been, he had little opportunity to demonstrate his powers in South Dakota until after 1870. All of the opinions of the supreme court from the foundation until 1878, a period of seventeen years, made but one small volume half the size of the ordinary court report, and from that statement may be derived a fair judgment of the meager opportunities afforded the Dakota lawyer of the pioneer days. In 1869 Bartlett Tripp came to Yankton and from that time divided the honors of the bar with Messrs. Moody and Hand. Mr. Burleigh was an acute lawyer, but gave his attention almost exclusively to private interests and to politics. Judge Brookings, always adventuresome in business affairs, gave his attention to a large extent to exploiting the advantages of the country as a place for home making and to railway enterprises, except during the period from 1869 to 1873, when he served as an associate justice of the supreme court. In 1869 Dr. Burleigh secured the appointment of George W. French, of Maine, as chief justice, to succeed Ara Bartlett. French was, and probably ever will be, the joke of the Dakota bench. He was not a lawyer, but was a boyhood friend of Dr. Burleigh who waited to do something for him. So he went to his excellent friend, President Johnson, and requested him to nominate French for chief justice of Dakota territory. "Is he a good lawyer?" asked the President. "I don't know about his strength in law;" replied Burleigh, "equity is his strong suit." French got the appointment. He early earned the soubriquet of "Necessity," because he knew no law. He was absolutely ignorant of practice and procedure. One of the early cases, which came before him was the trial of his brother justice of the supreme court, Judge Brooking upon an indictment for perjury. growing out of a land deal. If Chief Justice French was short on law, he was all right in courtesy and good breeding, and he realized that he could not do less than invite a fellow justice, present in his court, to sit with him, so the defendant occupied a seat at the chief justice's right hand. Early and constantly, in the course of the procedure, questions of law arose which puzzled the unsophisticated chief justice, but with a brother justice at his elbow, he was able to render prompt decisions, and if they did in fact tend to strengthen the defense, why, there were authorities on both sides of the question and the defendant was certainly entitled to the benefit of the doubt. In 1873 Chief Justice French was succeeded by Peter C. Shannon, of Pennsylvania, an able lawyer of strong character, who remained a Dakotan until his death in 1899. Judge Brookings was followed the same year by Alanson H. Barnes, and in 1875 Judge Kidder, having been elected to congress, gave up his seat on the bench to Granville G. Bennett. Before this time several young lawyers who still occupy a high place at the Dakota bar had made their appearance in the territory. Among these were John L. Jolley, who came to Vermillion in 1866, and Curtis H. Winsor, who located in Canton in 1871. John R. Gamble located in Yankton in 1873 and was recognized as a strong lawyer from the beginning. The first great case in Dakota to try the metal of the lawyers was the Wintermute murder trial in 1874. In 1873 Peter P. Wintermute shot and killed Edwin S. McCook, secretary of Dakota territory, at Yankton. At the October term of that year Wintermute was indicted, but the indictment was quashed at an adjourned term in January, by Judge Shannon. At the April term, 1874, he was reindicted and his trial began upon May 11th. He was prosecuted by Phil K. Faulk, county attorney, assisted by George H. Hand and Jason Brown, of Cheyenne, and was defended by Moody & Cramer (the latter, Nelson I. Cramer, having recently located in Yankton and still is engaged in practice there), Bartlett Tripp, William Tripp and Leonard Swett, of Chicago. The defense was "self- defense." It was a hard-fought case, in which Judge Moody and Judge Tripp demonstrated their great power, but their client was convicted. The case was appealed and reversed and sent to Clay county for a new trial. The action of the supreme court called out an indignation meeting from the anti-Moody element in Yankton. On the second trial John L. Jolley was associated in the defense, which resulted in an acquittal. In those days Richard F. Pettigrew was in active practice in Sioux Falls. Melvin Grigsby was his law partner. About this time, - the date is lost, - Judge Shannon was holding court at the falls and Senator Pettigrew and the Judge were in a continual altercation. Pettigrew was sarcastic and the court irascible. Pettigrew left the court room and went to his office, where he took all of the money from the safe and placed it in his pocket. "What are you going to do?" asked Grigsby. "I'm going to pay this out in fines for contempt of court," replied the embryo senator. "I'll let that old - - - understand that he can't run over me." He returned to the court room and at the first opportunity poured a volley of abuse upon the judge. "Enter a fine of ten dollars against Mr. Pettigrew," ordered the court. Pettigrew paid the money, the meantime keeping up a flood of vituperation. "Enter another fine of fifty dollars," shouted the judge in high fury; "I'll have it understood that this court is a gentleman." "Give me an exception to that last ruling of the court," piped Pettigrew. Judge Shannon enjoyed a good hit as well as any man living and he laughed heartily. "Remit the fine, Mr. Clerk," he said. After that things proceeded more smoothly. The opening of the Black Hills in 1876 brought a new element into the legal practice of Dakota and there was a rush of young lawyers to that section. But a few of the early men proved stayers. Judge Bennett was assigned to the Black Hills counties in the spring of 1877 and held the first terms there. He was elected to congress the next year and Gideon C. Moody succeeded him on the bench. A fourth district was created by congress in the spring of 1879, and Judge Kidder's second term in congress having expired. He was at once appointed to the new place, which he continued to fill until his death, in the autumn of 1883. By this time many of the strong men whose names have made the South Dakota bar lustrous were upon the ground. Robert J. Gamble and Ellison G. Smith came to Yankton in 1875 and Levi B. French but little later. E. C. Ericson was at Elk Point, Oscar S. Gifford, Martin E. Rudolph and J. R. Carter at Canton, W. H. Lyon, Charles O. Bailey, Park Davis and Dana R. Bailey at Sioux Falls, George Rice at Flandreau, George A. Matthews at Brookings, the Thomases, Seward, Glass, Mellette and Bennett at Watertown, Elrod and Sherwood at Clark, Thomas Sterling and Judge Poindexter in Spink county, A. W. Campbell and M. J. Gordon at Aberdeen, Eugene Huntington at Webster, H. S. Mouser, Americus B. Melville and A. W. Burtt at Huron, Charles E. DeLand and Coe I. Crawford at Pierre, H. C. Preston at Mitchell, Dick Haney and Lyman Fellows at Plankinton, John T. Kean at Woonsocket, John H. King and A. G. Kellam at Chamberlain, Robert Dollard at Scotland and James D. Elliott at Tyndall. In the Black Hills there were Edwin Van Cise, Dighton Corson, William R. Steele, John R. Wilson, William Gardner and others. It is impossible to enumerate all of the men who made good positions for themselves at the bar and it is not intended to make invidious comparisons by the use of the names selected, but they are some of those who at this late date are recalled. Upon the death of Judge Kidder, Cornelius C. Palmer, of Vermont, was appointed his successor, serving until 1887. Judge Moody left the bench to become attorney for the Homestake mine and William E. Church was appointed in 1883 to succeed him. In 1881 Alonzo J. Edgerton, of Minnesota, was sent out as chief justice, holding the position until 1885 when he was followed by Bartlett Tripp. Louis K. Church, of New York, was appointed in 1885 to succeed Seward Smith who for a single year was judge of the central Dakota circuit. Church resigned in 1887 to become governor, and James Spencer. another New Yorker, got his place. John E. Carland succeeded Judge Palmer in 1887 and L. W. Crofoot was appointed in 1888 to a new district. After the election of Harrison, Frank R. Aikens was appointed to the Sioux Falls circuit. Otherwise the Democratic appointees were not disturbed. In 1869 George H. Hand was followed as United States attorney by Warren Coles, who was in turn succeeded by William Pond in 1873. Pond died in office and President Hayes at once appointed Hugh J. Campbell, of Louisiana, to the position. Campbell was the most aggressive man who had held the office and he had an abundance of business. Among other things he secured the indictment of Governor Ordway for corruption in county-seat deals, but could not make the indictment stick. He also had the prosecution of the Cameron and Spaulding subornation of perjury cases, growing out of fraudulent land entries, as well as the Cameron-Carpenter bogus scrip cases. Campbell was succeeded in 1885 by John E. Carland, who resigned the position in 1888 to become judge. William E. Purcell, of North Dakota, was given the place and he was followed by John Murphy, who served until statehood. All of the decisions of the territorial supreme court are embraced in six volumes, five of which were produced in the last eleven years previous to statehood. As a whole they are a fair and authoritative interpretation of the law and, considering the condition under which they were produced, are creditable from a literary standpoint. Some of them are particularly strong and would have been creditable to any court in the land. This is hardly to have been expected, when we realize that during the period when five-sixths of them were written the judges were worked beyond all reason in the trial of jury cases, and were provided with neither the conveniences nor the leisure for careful work. During the territorial period the requirements for admission to practice law were very lax and the practice in relation to admission more lax still. About all that was required in most cases was to secure some admitted attorney to move that the applicant be admitted and the certificate issued as a matter of course, upon paying the usual fee to the clerk. Thus it came about that everywhere land agents and insurance men, who had made no preparation for practice, were admitted to the bar and for a time the profession was not in good rcpute. A few of these ready-made lawyers industriously worked themselves into good standing in the profession, but the large majority, after a few years, dropped out of sight. Statehood came with November 2, 1889, and the new supreme court, consisting of Dighton Corson, of Deadwood, A. G. Kellam, of Chamberlain, and John E. Bennett, of Clark. They were all lawyers of standing and gave the young state a dignified bench. Judge Corson yet, after almost fourteen years of service, is holding the honored position. Judge Bennett, after re-election in 1893, died, just as his second term was to commence and Howard G. Fuller was appointed his successor, and he still holds the position, having been re-elected by the people in 1899. Judge Kellam resigned in 1895 and Dick Haney, of Mitchell, was appointed to the place by Governor Sheldon, and he, too, was re- elected in 1899 and still serves. The judges are of equal rank and they annually choose a presiding judge, so that each holds the position in rotation. The opinions of the supreme court of Dakota rank well with those of the western courts and are quoted authoritatively by lawyers everywhere in the states. William B. Sterling was the first United States district attorney for South Dakota and served with distinction until 1893, when he was succeeded by Ezra Miller, of Elk Point. Charles G. Howard, of Redfield, was assistant to Mr. Sterling and Stephen B. Van Buskirk, of Watertown, to Mr. Miller. James D. Elliott, of Tyndall, followed Miller and is now serving his second term, as is also William G. Porter, of Custer, his assistant. Robert Dollard was the first state attorney general. Major Dollard had made wide fame by the defeat of the fraudulent Douglas county bonds. As attorney general, at the period when the state machinery was first set in motion, he made an enviable record. He was succeeded by Coe I. Crawford. To Mr. Crawford fell the arduous duties incident to the Taylor defalcation. Melvin Grigsby followed Mr. Crawford, coincident with the first administration of Andrew E. Lee. An early break occurred between the governor and attorney general, rendering the administration somewhat stormy. John L. Pyle was elected in 1898 and served to his death, in February, 1902. Mr. Pyle was an able and conscientious lawyer and his early death was a distinct loss to the bar. Governor Herreid appointed A. W. Burtt to the vacancy. Philo Hall, of Brookings, was elected in 1892 and still serves. The bar of the state has been honored in several notable ways. President Cleveland chose Bartlett Tripp his minister to the court of Austria, and President McKinley made Mr. Tripp one of the high joint commissioners in the Samoan settlement. Melvin Grigsby is the present United States attorney for Alaska. William B. Sterling was chosen general counsel for the Elkhorn Railway and was holding that position at the date of his untimely death in 1899. With statehood a new circuit judgeship came in vogue, and these judges were not required to sit in supreme court as in territorial days. The state was~ divided into eight circuits. Ellison G. Smith was chosen Judge of the first circuit and has since served continuously. Frank R. Aikins was elected to the second (Sioux Falls) circuit and was succeeded in 1894 by Joseph W. Jones, who continues in office. Judge Aikens is conducting a remunerative practice in Sioux Falls. Jeremiah O. Andrews, of Brookings, was chosen judge of the third (Watertown) circuit at statehood and was re-elected once; Julien Bennett was chosen his successor in 1897 and still serves. Dick Haney was first judge in the Mitchell circuit and when he became supreme judge in 1895 Frank B. Smith, of Alexandria, was appointed judge by Governor Sheldon, and is still in the service. Howard C. Fuller, first judge of the sixth circuit, went to the supreme bench in 1894 and was succeeded in the circuit by Loring E. Gaffey. Albert W. Campbell served the fifth (Aberdeen) circuit until 1902, when he retired to engage in practice at Aberdeen and James H. McCoy was elected. The Black Hills country is divided into two districts, the seventh, or Southern Hills district, and the eighth, or Northern Hills. J. W. Nowlin was the first judge of the seventh, but his health failing, he resigned in 1901 and Governor Mellette appointed William Gardner, of Rapid City, to the vacancy. Gardner was a member of the legislature and a nice point arose as to his eligibility under the coustitutional provision limiting the right of a legislator to hold other office during the term for which he was elected. Levi McGee, at the next election, ran for the position and received all of the votes cast without opposition. He then brought an action in the nature of quo warranto to try Gardner's eligibility. The real point in issue did not come before the court, for McGee could not qualify until January 1, 1893, and at the same time Gardner's term as a legislator expired and one of the first acts of Governor Sheldon was the reappointment of Gardner, thus saving any point which might have been made against him through Mellette's appointment. In the next election McGee was elected by the people to succeed Gardner. In the eighth circuit Charles M. Thomas was the first judge, continuing in the office until 1893 when he was succeeded by Adroniam J. Plowman, and he in turn by Joseph B.Moore in 1897 serving until 1901, when Frank J. Washabaugh was elected to the position. The next year judge Washabaugh died and Governor Herreid appointed William G. Rice to the vacancy. The legislature of 1903 created a ninth circuit, from Spink, Beadle, Kingsbury and Miner counties and Governor Herreid selected Charles F. Whiting of DeSmet, for judge. In the winter of 1898 the State Bar Association was organized at Yankton and the strongest men of the state were among its promoters and still are active in it. Bartlett Tripp was the first president and Robert Dollard, E. C. Frieson, John L. Jolley and Charles O. Bailey were among the promoters. It holds annual sessions and many exceedingly strong papers have been presented by its members. F. C. Ericson is the president for the current year. Since statehood a large number of new men have appeared in the Dakota field, some of whom have already won wide prominence and others who give excellent praise of attaining a high position. The list is too extended for full presentation here and to note some of this large class without according equal prominence to all would be a manifest injustice. Several valuable compilations and treatises have been published by South Dakota lawyers. Among these are a "Justice's Practice," by Americus B. Melville; Annotated Trial Practice and Appellate Procedure," Annotated Rules Supreme Court," and "Annotated Incorporation Laws," by Charles F. DeLand; several editions of a Dakota digest of decisions by Horace G. Tilton; an aid to the code, by Jones & Matthews. The first revision of the laws of Dakota was made by Bartlett Tripp, Granville G. Bennett and Peter C. Shannon in 1877. They were assisted in the work by W. H. H. Beadle. The laws were compiled in 1887 by Ernest W. Caldwell and Charles H. Price. Mr. E. T. Grantham, of Custer, got out a private compilation of the laws in 1899. The Dakota Reports were edited by Ellison G. Smith and Robert Tripp. The South Dakota Reports, now sixteen volumes, by Robert W. Stewart and Henry R. Homer. The legislature of 1901 provided for the opening of a law department at the State University and Thomas Sterling was chosen dean. The school is in a prosperous condition. Bartlett Tripp, John L. Jolley, Jason W. Payne and E. C. Ericson are among the lecturers upon stated topics.