"Called upon at the eleventh hour to fill the place of one well
qualified by education, by experience and by a wider and more
extended observation than myself in the field of legal
reminiscences, I feel some-what the embarrassment of the
situation. The Committee showed the highest appreciation of the
fitness of things and of persons, when they made my friend, now
recreating in the sunny clime of California, their first choice
for the pleasing task now, unfortunately for the Association,
devolved upon me. It is a case of devolution, not evolution. I
possess not that gravity of countenance, nor that dignity of
demeanor, nor that solemnity of vocal utterance, so necessary
to give full zest even to a well-told tale. My absent friend
possesses these qualities in a high degree.
"In every new and sparsely-settled country there is always a
closer social intercourse between the Bench and the Bar, and a
greater freedom of utterance, than in after-years. When
population increases to the dimensions of a Commonwealth, and
costly Court Houses are built, there is connected with every
Court-room, a sort of 'holy of holies,' from which the Judge
emerges in the morning and, after the crier performs his
duties, into which he enters at night. This may, and probably
does, aid in the dispatch of business, but it operates as an
effectual curtailment of that free-and-easy social intercourse
which once existed. We rarely see the Judge now except when he
is fully clad with judicial thunder. I do not know that I
desire a full return of the customs of other days, but I would,
if I could, check this tendency to social isolation.
"In those good old days, my absent friend was discussing a
motion before his Honor, Judge Greene, involving the question
of whether certain alleged facts amounted to fraud. In support
of his contention, my friend was reading copious extracts from
_Browne on the Statute of Frauds_. In doing so, he was
constantly calling that author's name Brown-e? 'Why do you
call that name Brown-e?' asked the Judge. 'It is spelled,'
answered our friend, with charming gravity, 'B-r-o-w-n-e; if
that is not Brow-ne, I would like to know what it does spell?'
'I spell my name,' said the Judge, 'G-r-e-e-n-e. You would not
call me Gree-ne, would you?' 'That depends,' replied our
friend, 'on how your Honor decides this motion.' The Judge
waived the contempt and joined in a general laugh.
"It is a delicate matter to discuss the qualities, mental and
otherwise of a living and honored brother, and I hope to be
pardoned for the following: Wit and humor, though distinct, are
often confounded. The grave and solemn man is often full of
humorous conceptions. He suppresses their utterance sometimes
with difficulty. He consumes them in an internal feast of
pleasure. It is an exhilerating, but lonely feast. In this
there may be a tinge of selfishness; but we will not condemn.
But when he opens the mental throttle and allows them to flow
forth, they give pleasure to all and continue as a pleasant and
fragrant memory. Judge Greene, though not a wit, is full of
humor. His description of an 'Inspector afloat,' in an
Admiralty case in this then District, in which he contrasted
what an Inspector afloat ought to do and see with what this
Inspector did not do or see, is an admirable specimen of
genuine humor. I believe that it was published at the time, but
I presume that only a few of my hearers have ever seen it. It
ought to be republished. It is worth preserving. It was
possibly this latent trait in the Judge's mental constitution
that led to the following scene:
"There was an attorney at Steilacoom, where Court was then
held, of the name of Hoover. He was a bright, active young man,
but his chirography resembled, in illegibility if not in form,
the Egyptian hieroglyphics. He filed for a client an answer to
a complaint. The Honorable Frank Clark, attorney for the
plaintiff, demurred to it, because it did not state facts
sufficient to constitute a defence; in fact, did not state
anything; that if it did, it was wholly illegible and past
finding out. As soon as Mr. Clark had finished reading his
demurrer, the Judge, who prided himself on his ability to read
all forms of handwriting, asked Mr. Clark to hand the answer to
him, saying that he thought he could read it. It was handed up
to the Judge. He read the first line in the body of the answer
all right, but utterly broke down on the second line. He scaned
the remainder of the answer deliberately and with care, then
handed it to Mr. Hoover, asking him to read it; the Judge
meantime watching him with an intensified if not admiring gaze.
When Mr. Hoover had finished the Court said, 'Mr. Hoover, hold
up your hand.' Mr. Hoover did so, and in that solemn position
the Court swore Mr. Hoover as to the correctness and
truthfulness of his interpretation of that answer. Mr. Hoover
has since left the profession of law and gone into the more
lucrative business of banking. On account of the unjust
criticism sometimes made on my own hand-manual, I feel inclined
to treat him kindly.
"There may be a dash of the _ego_ in the following
reminiscences, but it will be seen that I was but the incident
or subordinate actor, or more the victim, than otherwise.
"While the Third was my Judicial District, I was ordered by the
Legislature of 1869 and 1870 to hold Court in the Second as
well. The docket at Vancouver, for various causes not necessary
for me to mention, had become very much clogged. There were
over two hundred cases, civil and criminal, awaiting trial. The
Legislature gave me six weeks to clear up that Docket. I went
to Vancouver a little out of humor from the imposition of
double duties, but with the determination to accomplish the
task within the alloted time, if continued and sharp work would
do it. I made myself something of a judicial tyrant during that
term. I ran Court from eight o'clock in the morning, with
evening sessions often extending until twelve o'clock at night.
Motions and demurrers were read, and I heard only the party
against whom I was inclined to rule on the reading. I took
nothing under advisement. I limited the time of address to
juries, adjusting the time according to the importance of the
case and the character of the rights involved. The local and
visiting Bar showed their appreciation of the situation and
wasted no needless time in the direct, or cross-examination of
witnesses. We finished up our work on the last day of the
alloted time, and of all that mass of cases heard and finally
determined at that time, not one was taken to the Supreme
Court.
"Quite a number of amusing incidents occured that tended to
relieve the monotony and lighten the burden of our labors. By
your permission, I will relate one.
"A man had been indicted for a grievious assault and battery.
The alleged place of the assault was in the woods near the
northern limits of the town. The second witness for the
prosecution was a school teacher from Washougal. He was a tall
and lank man, with high cheek bones, sunken cheek and eyes, and
sandy hair. He had about him an air of conscious superiority.
After he had been sworn, he advanced to the witness-stand which
was directly to my right. Before he took his seat, however, he
courteously bowed to me and, with a dignified waive of his
hand, saluted the Court. The following was his description of
the assault and battery:
"'The prosecuting witness was sitting calmly and sedately on a
log, when the prisoner approached with stealthy yet intrepid,
steps, until he approximated in close proximity to his person,
sir'--The Court interrupted: 'If you can get along without
making a stump speech, we will be very much obliged to you.'
'Thank your Honor,' he responded. 'Proceed,' said the Court.
'As I was remarking, the prosecuting witness was sitting calmly
and sedately on a log, when the prisoner approached with
stealthy, yet intrepid, steps, until he approximated in close
proximity to his person, sir, when he reached forth his digits
and fastened them in the capillary filaments of the
prosecutor's head, and then, with a tremendous jerk, laid him
prone and prostrate on the ground; then he lifted his heel high
in air and sent it with such force and violence into the
countenance of the prosecutor that it has left an impression
indelible to this day, sir.' 'That will do,' said the Court;
'You can go.' He arose with a courteous bow to the Court and a
wave of his right hand towards the Bar, said: 'Thank your Honor
for releasing me from the impertinence of these attorneys.' And
he proudly walked out of that court house. The Court
surrendered its dignity for a time and joined in the storm of
laughter.
"Pierce County, now a model of intellectual and moral progress,
with a thrifty, energetic and law-abiding population, was, in
early Territorial days, a hotbed of local feuds frequently
resulting in homicide. She had no Tacoma, then, to control the
spirit of lawlessness and to teach her citizens that life's
truer conflicts are different, and nobler. This County was in
the Third Judicial District, over whose Courts I had the honor
to preside for six years. At one of these terms of Court a man
of the name of Walker was indicted for the murder of his
nearest neighbor. Walker and his said neighbor were both
unmarried and lived in cabins not far apart. Both were
stock-raisers, and both were well advanced in years. No one saw
the killing and it was, therefore, a case of circumstantial
evidence.
"The body of the neighbor, when found, lay near a gate that
entered Walker's pasture-field, and the right side, from the
shoulder down to a point opposite to the navel, was perforated
with shot. I will not attempt to state the circumstances on
which the prosecution relied; suffice it to say, they pointed
with a good deal of force to the guilt of the accused; but I
will not say, in opposition to the verdict of the jury that
they excluded every hypothesis of innocence. The prisoner was
ably defended by Judge Wyche, James McNaught, Irving Ballard
and Gov. Wallace. The Honorable C. M. Bradshaw was the
prosecuting attorney, and he was ably assisted by the Hon.
Frank Clark. The trial occupied the attention of the Court for
four days. On the second day of the trial, a lady tastefully
dressed, but closely veiled, entered the Court with the
prisoner's counsel, and, when the prisoner came, took a seat
by his side. She was evidently a stranger, and 'who is she?'
was on the lips of everyone. At the noon recess it was learned
that she was the daughter of the prisoner. Day by day she
appeared, took her accustomed seat, and remained a silent and
mournful listener to the damaging testimony given against her
father. At noon of the fourth day I thought the testimony was
all in. At the call of the Court after recess I was somewhat
astonished by the announcement of Judge Wyche that he wished to
put one more witness on the stand. I was still more surprised
when he asked, this daughter, to take the witness-stand. She
moved across the room in front of the large audience in a
dignified and graceful manner, her face still veiled. Before
she was sworn, Judge Wyche requested her to remove her veil,
and she did so, revealing a countenance beautiful, intelligent
and sorrowful. Judge Wyche asked her to state her age. She
answered, twenty-four. Ques. 'What relation are you if any, to
the prisoner?' 'He is my father.' Ques. 'Before you came here,
how long had it been since you last saw your father?' Ans.
'About fifteen years.' Ques. 'Are you married?' Ans. 'I am.'
Ques. 'What is the object of your visit here?' This question
was objected to, but I let it go in. 'I came,' she said, 'to
persuade my aged father to go back and live with me in my
eastern home, so that I could smooth his pathway to the tomb
with a daughter's love and affection; but to my sorrow and
astonishment, when I arrived I found him on trial for his
life.' She was about to proceed, but the Court stopped her.
Then Judge Wyche said: 'I want to ask you one more question. I
presume that it will be objected to and you need not answer
until the Court permits you to do so. Taking into consideration
all that you have stated and all that you may know in the
past, as well as in the present, of your father, what is your
opinion of his sanity?' 'We object,' came quick and sharp from
Mr. Clark; but, as he did not arise to argue the objection,
Judge Wyche made a clear and cogent argument in favor of the
admisability of the testimony, admitting that the authorities
were in conflict, but claiming that the better reason was in
favor of its admission. In conclusion, he repeated the
testimony of the witness and drew a brief but pathetic picture
of her melancholly condition. His emotion seemed to intensify
as he proceeded, until they became too great for utterance, and
he resumed his seat amid the profound silence of the
court-room.
"Frank Clark, who had watched this performance with the keen
eye of an connoisseur, immediately arose to reply. He did not
waste much time on the legal proposition, but addressed himself
to the concluding portion of Judge Wyche's argument. He said
the learned counsel for the defendant, had drawn a pathetic and
melancholly picture; then with a voice trembling with seeming
emotion, he asked: 'Did the learned counsel say anything about
the poor, lone man who fell on yonder plain, pierced by many
cruel shots, with no daughter near to receive his last blessing
or to close his eyes, fast glazing in death?' Seemingly
overcome with emotion, he resumed his seat, but no sooner had
he done so than he put his hand to the corner of his mouth and
said to the prosecuting attorney, in a stage whisper,
distinctly audible in most of the room: 'I guess they did not
beat us much in that game,'
"All of the older members of Bar in Western Washington were
acquainted with I. M. Hall. He was probate Judge of King County
for two terms, and for one term its auditor. He possessed what
Bishop called 'a legal mind.' While he was well read in the
elements of the law, after his admission to the Bar he had very
little use for books other than Statutes, Blackstone's
Commentaries and Kent's Lectures. His knowledge of Statutory
law was comprehensive and wonderfully accurate, both in a
historical and constructive sense. He often said that we were
too much inclined to go far from home for our law; that we were
fond of legal exotics. While reports were useful, their abuse
was greater than their proper use. He claimed that their use
had changed the members of the legal profession from a body of
original and stalwart thinkers, to a body of sickly book-worms.
Their inquiry was not, what was the reason of the thing, but
what had some Court said?
"It was a frequent saying of his that the principal difficulty
that he met with in the practice of the law was to get the
Court to see the law as it was; a difficulty that many of us,
no doubt, have thought at times obstructed our success; but
which, with that modesty and discretion so characteristic of
the profession, we have failed to voice.
"Mr. Hall was the acknowledged wit of the Bar of Western
Washington. I might give many instances of his ability as a
wit, but one must suffice.
"It was the last day of a term of Court at Port Townsend. My
practice was to read over the docket on the last day of Court
in the presence of the attorneys, so that I could correct on my
docket any omissions or mistakes. I was about to adjourn Court
when Mr. Hall said he desired to have a demurrer heard. I told
him to proceed. He made a brief yet clear and plausable
argument in favor of the demurrer. It involved a point of
statutory construction. When he had concluded, the opposing
counsel rose to reply. I told him that I did not desire to hear
him; that the point presented so ably by Mr. Hall was not new
to me; that my mind was against the construction contended for,
and that I would have to overrule the demurrer. Mr. Hall, who
had arisen to his feet, and who was manifestly a little
disappointed at the ruling of the Court, said that he would
like to have an exception. I said: 'The Court will grant you an
exception with pleasure; but,' I said, 'this very question has
been up before my Brother Greene and my Brother Lewis, and we
all agree in our views; now, you know that we three constitute
the Supreme Court, and, while I give you the exception with the
greatest pleasure, I fear you will not make much by it.' He
stood in a reflective attitude for a moment, then said: 'May it
please your Honor, I believe I will take the benefit of the
exception, anyhow, for the tenure of office is very uncertain
in this Territory.'
"I have heard the incident related with this sequel, that he
took the case to the Supreme Court, that the Judges mentioned
were all off the Bench, and the demurrer was sustained. I
cannot vouch for the correctness of this sequel, however.
"Now, Mr. President and brothers, I owe you an apology for
detaining you so long with this unsubstantial matter, this
unwritten poetry of the profession. I am inclined to believe,
however that the actual intellectual and moral tone of a given
period, as well as the social status, has no truer index than
its current anecdotes. Every new and formative community is
marked with distinctive individualities. In the onward sweep of
development and civilization, and in the largeness of
population, individuality becomes fused in the general mass,
and loses its salient characteristics."
From an address before the same Association at its annual meeting in
Ellensburg in 1902 I cull these extracts.
"Mr. Chairman:
"When I came to this city I was sent for by the President of
this Association and informed that Mr. Caton, on account of
sickness in his family, could not be present on this occasion;
and he asked the privilege of substituting my name for that of
Mr. Caton. At first I objected. But you who are acquainted with
the persuasive eloquence of the President of this Association
can readily come to the conclusion that I finally consented. In
the words of one of Lord Byron's heroes, 'Much I strove and
much repented, And saying, I will ne'er consent--consented.'
"The particular point to which I desire to direct your
attention is the pioneer lawyer. I think I know something about
his characteristics. In the first place he was a good fighter.
His surroundings gave him inspiration in that direction. His
environments were of the militant order. He was not only a good
fighter, but he was a loyal fighter, and I must say from
experience that he was a persistent fighter, for, after the
judicial umpire had counted him out, and called the next bout,
he wanted to fight on still. In the next place, he was a good
reasoner, and I want to emphasize this point. He was so of
necessity. He had no Reports. He had to rely on his remembrance
of general principles; and he learned to reason from those
general principles to his conclusions; and his success at the
Bar depended upon the clearness of his statements and the
cogency and force of his logic. The question with him was, what
is the law? And he ascertained what the law was by reasoning
from the general principles which he remembered, to the
conclusion which he desired. If an attorney now-a-days is asked
what is the law, I am afraid that it is too often the case, to
use the eloquent language of the Supreme Court of this State,
he seeks to find a case 'On all-fours.' He doesn't make any
inquiry. He doesn't exercise his reasoning powers at all; he
goes into the library and hunts after a case 'on all-fours'
with the facts of the case he has presented to him. The learned
and honored Judge C. H. Hanford, who has just so excellently
addressed you, has stated that the law is not an exact science.
I do not know but what I differ from the speaker in this
regard. Every profession has connected with it two things: a
science, and an art. The science consists of the principles
upon which that art rests. Now I, as a lawyer, am prepared to
maintain that the science of the law is just as accurate, just
as complete, and just as reliable as any other science. As has
been said, law in its practical operations is the application
of principles to a certain condition of facts. There comes in
the art. Where different judges differ, it isn't in the science
of the law, it is in the art connected with that science.
"Now I am wandering a little. However, I was trying to show
that pioneer lawyers were forced to do their own reasoning, to
rely upon their own intellectual powers. Such, I understand,
was the school in which Lincoln graduated; and such, I am happy
to say, was the school in which the Honorable United States
District Judge of this State (Judge Hanford) graduated.
(Applause.) And he has shown today, in the fine address which
he has read, that he had good training in that school, and
that he early learned to do his own thinking and to arrive at
sound conclusions. I know all about him. I knew him before he
was a lawyer. I knew him while he was studying his profession.
I knew also that there were very few books that he could
command at that time. I think it is a good thing. I would say
that a lawyer, a young man, should never be permitted to see a
Report until he has practiced at the Bar for at least six or
seven years. Then he would learn to do his own thinking and
reason from the principles laid down in the fundamental works
upon the science of the law. I have spent too much time upon
that point, however.
"The pioneer lawyer as I knew him had a strong sense of humor
about him. He had a strong sense of the ludicrous about him.
Circumstances contributed a great deal to the development of
that sense in him. In early days there was no such thing as
conventional usages. Every fellow had his own fashion and
followed his own will. I remember a little incident connected
with what I have just stated. When James McNaught, whom you all
know, and who subsequently became attorney for one of the
largest railroad corporations in the country, the Northern
Pacific Railroad Company, first came to this Territory, he was
inclined to be a little 'dudish' in his dress. The first place
he landed was at Port Townsend. He had a stove-pipe hat on his
head--he was near sighted, and with his spectacles across his
nose--went out to view the town, and, as is customary with
people whose sight is thus affected, he always looked upward;
and he was looking upward in Port Townsend as though he
expected to gather a glimpse of the golden wings of a flock of
angels hanging over that spiritual town. Well, everybody
noticed it. He was the observed of all observers. The next
time the paper at Port Townsend came out it was with the
heading, 'Ecce Homo,' 'behold the Man,' and it gave a ludicrous
description of that young attorney and his resplendent ability,
notwithstanding his dude hat. Everybody read it. It was a fine
introduction.
"When he came to Seattle the boys ran out to him taking him to
be the advance-agent of some show, and said to him, 'Mr. when
is your show going to be along?' 'What is it?' 'Has it got
animals in it or not?' After that Mr. McNaught relapsed back
into the barbarous habits that existed on the Sound at the
time. There was more freedom between the Court and the Bar at
that time than there is at the present time, more sociability.
Now the Court comes in at a certain time from his back-room
connected with the Court House, where he has disappeared and
shut himself up until the bailiff announces his coming,
whereupon--I am speaking now of Seattle--everybody arises and
gently bows, and the Judge takes his seat and is prepared with
his judicial thunder."
For twenty years I have served as President of the King County Bar
Association. From January, 1897, to January, 1901, I served as Judge of
the Superior Court of the State for King County. Although an
octogenarian, I am still in the harness as an Attorney and Counsellor at
Law.
I have now completed a general survey of my not uneventful life. I have
written and collated it in my eighty-first year.
In conclusion a brief retrospect limited to our Country and Nation, may
be allowable. Looking backward from a standpoint of review covering
eighty years and more, and comparing the condition of the world with
what it was on the second day of May, 1827--the day of my birth--with
what it is now--I am greatly impressed with the fact that in
intellectual and moral growth, in the advance of civilization, in
material progress and human amelioration, as well as in increase of
population and in the volume of business and in glorified inventive
triumphs--as well as in religious beliefs, as shown in the substitution
of _love_ for _fear_ as the true basis of obedience to God and His
laws--the world has moved and is still moving forward to a higher and
nobler plane of civilization.
Steam, whose latent energies were then but little known, under the
exploitations of science and inventive genius, became, and continues to
be the chief motive power of the world. Electricity alone now disputes
its dominion. While the light of ages comes streaming down the pathway
of history, it illumes the present and enlarges the scope of human
knowledge, yet it gives no prophetic insight, hence, which will be the
final victor is unseen. The potential energy and force which practically
annihilates time and space by its fiery messages sent through the air or
ocean westward, in advance of mechanical time and becomes the common and
instant transmitter of intelligence--is fast developing into a motive
force the full extent of whose tremendous power is as yet unknown.
It may equal, if not excel steam power and thus become the motive force
of the world.
During the time covered by this brief retrospect, Mexico has felt the
conquering power of the soldiers of the model Republic, its roll call
has been heard in the Halls of the Montezumas--the northern boundary of
Mexico has been deliminated, with territorial concessions to our
Government--Texas released from the dominion of Mexico and made an
integral part of the Union by annexation and subsequent admission as a
state. The War of the Rebellion which threatened the territorial
integrity and rightful authority of the Union after a heroic
conflict--has been suppressed--peace and harmony have been restored and
slavery, the irritating cause removed, by emancipation--and the Union
today stands on a firmer, broader, and more enduring basis than ever
before.
Peace has her victories no less renowned than war's. The silent
influence of our institutions has secured the annexation of the Hawaiian
Islands--the gem of the Pacific and the outward bulwark of the Pacific
States.
The war with Spain, occasioned by her treachery, and inspired by the
desire to release the Cuban people from the rapacity and cruelty of her
Spanish tyrant--resulted in the heroic and somewhat romantic naval
battle of Manila Bay--the capture of the Philippine Archipeligo--and the
expulsion of Spain from that group of Islands.
Eighty years ago the settlements with a few exceptions scarcely impinged
on the eastern shore of the Mississippi River. Since that time they have
crossed that mighty flow of waters--spread out over the fertile plain to
the eastern base of the Rocky Mountains, and in after years they have
extended over the mountains and here, in the sunny clime and fruitful
valleys and balmy and healthful breezes of the Pacific Coast, the hardy
pioneer has found a final home.
What a territorial basis for development--progress--empire! Already
several millions of hardy, enterprising and patriotic freemen are
scattered over this vast domain, and westward millions more are taking
and will take their way in addition to the millions to the manor born.
With the constantly increasing and controlling power of the forces
generated in the past, and, now successfully at work in the world and
which will no doubt increase in number and in the grandeur of their
results during the next eighty years--who can measure the coming power
or comprehend the glory of the model Republic?
Pioneers, Washington, with all her grand resources--developed and yet to
be developed--won by your privations, courage and patriotism, is your
gift to the Union, to be consecrated to liberty, regulated by law,
forever.
Transcriber's Notes:
Passages in italics are indicated by _italics_.
Inconsistencies in spelling and hyphenation have been retained from
the original.
Obvious typographical errors have been corrected as follows:
Page 16: "firts" changed to "first"
Page 47: "assitance" changed to "assistance"
Page 50: "attemps" changed to "attempts"
Page 70: "alcholic" changed to "alcoholic"
"or" changed to "of"
Page 72: "audienc" changed to "audience"
Page 75: "opprobiously" changed to "opprobriously"
Page 78: "surrounding" changed to "surrounded"
Page 105: "reconcilation" changed to "reconciliation"
Page 129: "genral" changed to "general"
Page 130: "Reyonlds" changed to "Reynolds"
Page 147: "beilieve" changed to "believe"
Page 177: "fity" changed to "fifty"
Page 207: "mounth" changed to "mouth"
Page 224: "suprised" changed to "surprised"
Page 225: "to" changed to "too"
Punctuation has been corrected without note.