terms. the state constitutional convention. — amendments to

the constitution. — -jurisdictions of colorado courts. — establish-
ment of appellate courts. — politics and the judiciary. — first

election of supreme court judges. exceptional circumstances

under which wilbur f. stone was elected to the supreme court.
—Colorado's pioneer lawyers. — distinguished members of the

state bar. the "circuit of the territorial court of the third

district.'"' primitive means of travel and entertainment. —

fandangos in special honor of the court and its retinue.

Colorado's army of lawyers. — the state bar association. — bane-
ful INFLUENCES OF PARTY POLITICS IN THE JUDICIAL DEPARTMENT
OF GOVERNMENT. PRESENT MENACES TO THE STABILITY AND INTEGRI-
TY OF OUR COURTS. — REMEDIES FOR DEFECTS AND INEFFICIENCY IN THE
DISPENSATION OF JUSTICE. — LAW NOT INFALLIBLE, BUT SUBJECT TO
THE UNIVERSAL LAW OF EVOLUTION. — PECULIAR CONDITIONS ENCOUN-

• TERED BY OUR COURTS. DEMONSTRATED HIGH CHARACTER AND ABILITY

OF THE BENCH AND BAR OF COLORADO.

By Wilbur F. Stone.

The judiciary department of Colorado, with its system of laws and
court decisions, grew from the small beginnings in the ante-Territorial
days. A detailed history of its origin and development would be too
lengthy for a place here, and therefore only an abbreviated sketch will be
attempted.

The history of the institution of the American form of civil govern-
ment in what is now the State of Colorado by the Pike's Peak pioneers
forms a most interesting chapter of American annals, since it stands almost
alone as an example of the genesis and evolution of self-government by
civilized people — former citizens of states, but suddenly transplanted far
beyond the immediate jurisdiction, restraints and protection of the laws
and authority of state and national government.

When the American settlers of our state came here they entered into
a JSTo-Man's land. I'he conditions were without precedent, for the ease of
the preceding settlement of Utah by the ilormons, as well as the occupa-
tion of California by American gold-hunters, differed widely from that
of Colorado.

Wlien emigration from the original states passed over the Alleghany
Mountains and flowed into the Middle West, progress and settlement crept

Vol. 1—4 2

649



650 HISTORY OF COLORADO

along slowly — an agrarian outgrowth, which spread in a manner thai may
be compared with the extension of vegetation as seeds dropped from the
parent stock take root and grow in advance of the outer rim of contiguous
setting. Those frontier settlers were always Joined to the government,
laws, rules and customs of the older homogeneous communities, linked to
them by comparatively easy means of intercourse, by various common in-
terests, and having their aid and protection. Therefore, such pioneers had
but little need of original creative effort.

Contrasted with such conditions, the Pike's Peak region was known
only to explorers, and to trappers and traders among the Indians — aside
from the aborigines themselves. The pioneer invasion of this far western
land — arid in climate and soil and high in altitude — by our first real set-
tlers was indiiced only by gold, the thirst for which had been sharpened
by what had come to pass in California ten years before — a thirst of man-
kind that reaches back through human history into ages before the Greek
Argonauts set sail to recover the Golden Fleece.

So to this new region of Pike's Peak, then mapped as worthless moun-
tains, and sejjarated from the frontier government by six hundred miles
of desert plains, our pioneers came, not creeping, but marching in quick-
step armies, transplanted, set down where the}' had to begin without exist-
ing law and government, and thus left to their own volition and creative
ability.

Here, then, began a school of law-making and administration in which
every man took part, not for the government and obsen-ance of others,
but for themselves, and moved thereto by the spirit of self-preservation.
It is pertinent to note, at the outset, the character of these first settlers;
for this feature has, from the beginning until now, remarkably influenced
the liistory of Colorado and the entire far west. Unlike the population
that peopled the forested and luxuriant grass-covered region of the older
west, and which consisted almost wholly of the agricultural class, with a
sameness of manners, customs, ideas, and opinions tending to narrowness
and lack of enterprise, at a period and under conditions requiring a genera-
tion to produce noticeable changes and acquire comforts, the pioneers of
this New West exhibited a distinct contrast. Not that they were a new
breed or race; they were a selection. They were of the same kind that
had rushed to the golden coast of California, where, within two years
after its conquest, and without going through the preliminary form of
a territorial government, they begot a full-fledged State of the Union and
began outlining a new map of American Empire.

An old prospector once described the "round-up"' of the early Pike's
Peakers as composed of "Yankee abolitionists, Pennsylvania Dutch, Ohio
Buckeyes, Indiana Hoosiers, Illinois Suckers, Michiganders-, Wisconsin
Badgers, Iowa Hawke3'es, Kentucky Cocktail-Colonels, Carolina Corn-
crackers, Georgia Goobergrabbers, Alabama Confederates, Missouri Mule-
skinners, and a large contingent of Kansas Red-legs." But, in truth, the
Colorado immigrants of the first ten years were, like those of California,
of a very different type from the first settlers of a purely agricultural
country. They were intelligent, many of them well educated, and all
adventurous and enterprising.

So they came here, from the East, the West, the North and the South;
sons of the Puritans from the hills of New England and the prairies of



HISTORY OF COLORADO 651

the Groat T-nkes region met with the sons of the Cavaliers from the land
of the palmetto and the magnolia. All 'these, with their varied nativity,
lineage, manners, customs ; social, political and religious beliefs— Christian,
Jew, and Free-thinker — mingled here, where all were free, yet interde-
pendent iipon each other, and worked, co-operated, borrowed and lent, put
their several talents, manners, habits and mental stores into a community-
pot of neighborly good-will. Out of this mixture of enriched amalgam
each took his common share, so that in a brief time the pioneer settlers
of Colorado, like those of California, Arizona and Montana, became the
most closely united, most tolerant, liberal and cosmopolitan population in
the United States. Therefore, and while, for many years, a class of stay-
at-homes in the east were sending missionaries and school teachers out to
this supposed "wild and woolly West,"' upon the assumption that the people
of the Rocky Mountains were of an untamed, untutored and lawless sort
— indigenous to this region, like the Indian, the coyote and the prairie-dog,
it is easy to see how people with the character of these pioneers, so soon
as they were fairly camped in this wilderness of golden mountains and
fertile valleys, set about to establish government, schools and churches.
Together with their picks and shovels, axes and plows, guns and belt-
knives, they had brought their love of law, of the free school, and a large
majority had not forgotten to bring and set up in their tents and cabins
the household gods of their old family hearthstones.

The people of each mining carnp, embryo town, and agricultural set-
tlement framed their own simple codes of civil and criminal law, chose
officers to administer them; each community being an independent sov-
ereignty — like the early little democracies of Greece — wherein law and or-
der prevailed with as much rule and stability as in New England — minus
blue-law intolerance.

The members of the first territorial legislature were men of honest
endeavor; politics was not then an element of legislation, and the first
statutory laws were simple and such as were deemed necessary for the time
and existing conditions.

The court practice and procedure first established was copied chiefly
from the Illinois system, being a modified common law practice. Many
of the pioneer lawyers here had come from Illinois, and had brought with
them the court reports of that state; and a number of these lawyers were
members of the first legislature. After the territorial organization in
1861, three or four years elapsed before legislation came to be systematic-
ally established and administered.

Government then went on for ten or a dozen years much as it had
during the ante-territorial administration. Only necessary laws were en-
acted, and having been formulated by earnest men they were honestly made
for honest purposes, and also were faithfully administered.

The Judicial System of the courts of Colorado, established by the
Organic Act of Congress, approved February 28, 1861, was typical of the
system that has prevailed — with a few late exceptions — for more than half
a century in the organization of all the western Territories. In fact, the
entire form of such government provided by Congress was practically
identical in each Territory.

The chief judicial department consisted of three judges; an attorney



652 HISTORY OF COLORADO

who usually was called "i\.ttorney Generar' (the title "General" attaching
to him forever afterward) ; and a Marshal. Inferior courts were jDrovided
hy Territorial statutes. Colorado's first Legislature divided the Territory
into three judicial districts, and assigned each of the three judges to one
of these districts for the holding of courts at times and places designated
by the legislative act. In these courts the judges tried all cases, civil and
criminal, arising under the laws of the National Government, as well as
those under the laws of the Territory. These tribunals were called "Dis-
trict Courts," of the First, Second and the Third judicial districts, respec-
tively; and therein all the United States, or "Federal," cases were prose-
cuted by the "Attorney General," while the territorial criminal cases were
prosecuted by a district attorney, elected imder Territorial statute within
and for each county or district.

Beside this double Federal and Territorial jurisdiction, these judges
had another and superior function ; for when, at stated times, they con-
vened at the Territorial Capital, the united body constituted the Supreme
Court of the Territory, with apjjellate jurisdiction to revise cases appealed
thereto, or brought up on writ of error from courts of the several districts.
This quite anomalous feature of the appellate character of the Territorial
court required the judges, in effect^as members of the Supreme Court —
t(y review their own cases tried in the district courts, and affirm or reverse
their nisi pnws decisions, as a majority of two of the trinity in turn should
determine. It may be presumed that no tales of swapping jack-knives
were told out of school.

A history of courts is more or less a history of their judges, for courts
are vcrv much what the judges make them. A court is not a mere vehicle
into which a judge steps, is carried automatically, and steps out at way
stations, like a passenger. Every court takes its quality, complexion and
character from its presiding judge, and its efficiency, effects and influences
are measured by the structure of the man, and not by the machine.

The first three judges appointed to serve the Territory were Benjamin
F. Hall, Chief Justice ; Charles Lee Armour and S. Newton Pettis, Associate
Justices.

Judge Pettis retired soon after he arrived here. He came, saw, and
was conquered by his disgust of the "Wild West," resigned his office, and
went back to the East without ever having sat in court in the district to
which ho had been assigned. Judge Allen A. Bradford was appointed his
successor.

Judge Armour, of Maryland, was a talented, but cranky, many-sided
and tyrannical person, especially when on the bench. Among other peculi-
arities, he required every one, in taking an oath, to swear on an old, musty
Bible and kiss the begrimed book, regardless of the labial transfusion of
lurking microbes. He became so unpopular within a year that, after peti-
tion for his removal had proved unavailing, the Legislative Assembly, which
then held sessions annuallj-, redistricted the Territory (the first legislative
gerrymander in Colorado) and assigned Judge Armour to a specially
created Judicial District comprising only the two Mexican counties of
Conejos and Costilla, situated beyond the Sangre de Cristo Range, and
on the frontier of New Mexico — far from the madding crowd of Ameri-
can strife. But, with sublime defiance, the impassive Judge refused to



HISTORY OF COLORADO 653

visit his adobe castles in jSTew Spain or to resign his office. Stoically ho
smoked his cigar on the veranda of his boarding house up at Central
Cit}-, sipped his whiskey toddies, drew his salary, and held out his terra
as became a gentleman of ample if not elegant leisure. His journey there-
after back to "My Maryland" was unlamented by Pike's Peak; and the
Armour exile-district was promptly restored to the Third, or Southern, Dis-
trict, to which Judge Bradford had been assigned.

Chief Justice Hall was a good man, an experienced lawyer, of amiable
disposition and gentlemanly deportment, an acceptable judge and was
highly respected by the bar. He served only about two years, and was
succeeded by Stephen H. Harding, of Indiana, who had lately served as
governor of Utah.

Colorado had its quota of experience with "carpet-bag" appointees to
office in the early years, and it was hard to get complaints to the ear of
the Federal Government, for the Civil War was raging and the conditions
resultant from it engrossed administrative attention.

Chief Justice Hall was succeeded by Stephen H. Harding, who had
been Governor of the Territory of Utah, and who was the most unsatis-
factory occupant of the Colorado Bench in that period. His venality,
decisions of questionable motive, personal immorality and general unfit-
ness became so odious that finally the bar organized what would in this
day be termed a "boycott." Every lawyer having a case in court when a
certain term opened in Denver moved a continuance in each case; and, if
not granted, refused to try them, from term to term. This went on until,
one day, when Harding came down from Central City, where, on the last
day of a term, he had rendered an iniquitous jiidgment in a mining case,
he hitched up his team and skipped across the plains eastward to Hoosier-
dom and obscurity.

Judge Bradford had lived in the Gregory Gold-diggings before his ap-
pointment as a judge, and so was one of the Pike's Peak people. Ho
was assigned to the Southern District, of which Pueblo was the central
point, where he served with distinction, and afterward was elected as Ter-
ritorial Delegate to Congress. He was a native of New England, having
to use his own e.xpression, "escaped from Maine" when young, and had
thereafter lived on the western frontier. Judge Bradford was a most re-
markable man, had a wonderful memory, an upright character, was kind
and just, and whose eccentricities, quaint speech and grotesque mannerisms
were proverbial throughout Colorado during his long and honorable life,
which closed a few years ago at his home in Pueblo.

Moses Hallett, by the united efforts of the bar and people, was ap-
pointed Chief Justice to succeed Harding, in 1866, and was assigned to
the Pueblo district, in which he succeeded Bradford as District Judge.
He came to Pike's Peak in 1860, and was the youngest in years and in
the legal profession of all the early judges when he came upon the bench,
but in study and knowledge of law he had come to be accounted the equal
of any member of the Colorado Bar, and the superior of most. Boyish
in appearance, he was familiarly called "Moses"' by the elder lawyers, and
his natural modesty in manner suggested the witty and genial General
Bowen to refer to him as "Moses, the Meek." Judge Hallett was retained,
by successive appointments, as Chief Justice of the Territorial Supreme
Court until Colorado was admitted to statehood. At the time of that



654 HISTORY OF COLORADO

change he was appointed United States District Judge for the State, wiiich
position he held until he retired from the office, in the year 1908, at the
end of forty years of continuous judicial service. During these forty years
in the wilderness of law-genesis and evolution, Moses Hallett may be said
to have made more good bench-law than any other judicial lawgiver who
has ever graced the bench of Colorado.

Judge Hallett's chief characteristics of studious industry, retiring and
self-contained nature, great dignity of manner and tenacity of opinion
gave to his personality and his court a force and influence which made
an indelible stamp on the legal profession and the judiciary of the period.
New legal questions, never before arising for legislative or judicial discus-
sion elsewhere in the United States, sprang up here concerning water-
rights and usages in irrigation, mining, and the public domain. Judge
Hallett was the first to declare the inapplicability of the ancient common
law doctrine of riparian rights to the waters of streams, and to announce
the rule of water-rights to be based upon prior appropriation by one seek-
ing use of the public waters for necessary or beneficial purposes ; and also
that a settler, for the irrigation of his land, even though held under pos-
sessory right merely as a locator upon the public domain, had a right not
only to divert water from the natural streams, but to convey it by ditches
or flumes constructed through the lands of another without the consent of
such other. This doctrine was after incorporated into tlie constitution of
the state, and has come to be the prevailing law of the land in most, if
not all, of the states and territories of the arid and semi-arid west.

Judge Hallett prepared the first two volumes of the Colorado Supreme
Court Reports, comprising all tlie most important decisions of the Territorial
Court down to Colorado's admission into the Union and to the consequent
establishment of the State Supreme Court under the constitution.

William R. Gorsline, of the Gilpin County Bar, was appointed to suc-
ceed Harding in the First District, in 1866, soon after Judge Hallett's
first appointment; and thus giving Colorado a majority of "Native Sons"
on the Territorial Bench. Judge Gorsline came here at an early day and
settled at Central City, where he soon acquired a lucrative practice. He
had been a Circuit Judge in Wisconsin, was an able lawyer, a sound judge
and a pleasant, lovable gentleman. He died l)cfore the expiration of his
term.

Judge James B. Belford, of Pennsylvania nativity, came to the bench
here in 1870, became a permanent resident, and after his judgeship, as the
successor of Gorsline, he was elected to Congress and served in the House
of Representatives with distinction. He was a man of brilliant talent, a
fluent public speaker and an accomplished literary writer. A man of
popular manners, and with sympathy for the humble rank in life — "the
common people" — no one was better known over the whole state during
his entire life here tlian -Jim"" Belford. He died a few years ago, missed,
but well remembered by the many.

William PI. Gale, of Illinois, served a very short time before resigning
as a Territorial Judge, and was succeeded by Christian S. Eyster, of Penn-
sylvania. The latter was a man well along in years and of mediocre
ability, bat upright and highly respected.

Evster was succeeded in the Denver district by Ebenezer T. Wells, a



HISTORY OF COLORADO 655

distinguished member of the Colorado Bar. Judge Wells came to Colorado
at the close of the Civil War, in which he had served with distinction as
a staff officer, and here entered into an active law practice. He compiled
the first revision of the Colorado statutes, a most carefully prepared and
useful work for the legal profession and the State. His coming upon
the bench was a welcome acquisition to the judicial department. Judge
Wells was a trained lawyer, a ripe scholar, a man of prime character, a
great reader, and possessed a high order of literary taste as well as a most
retentive memory. Of outward gravity, but full of an inward sense of
humor and comradeship, he possessed a large, healthy, erect physique, was
a laboi'ious office-worker, and it used to be said that he was the only mem-
ber of the bar who could "work fourteen hours a day every day in the
year and thrive on it."

Judge Wells served his term with great satisfaction to the bar and
the public ; and, indeed, the four years embracing his administration in
the Denver district, that of Belford in the Central City, and that of Judge
Hallett in the Pueblo district — a trio of brilliant jurists — marked the
zenith of radiance that illuminated the last years of the Territorial judici-
ary. Judge Wells recently retired from practice, and at the time of this
writing he is the official reporter of the State Supreme Court.

Amherst W. Stone was the last appointee to the bench of the Terri-
torial court, and he had not served his full term when Colorado was ad-
mitted into the Union and the State judges displaced the former regime.

From the organization of the Territory until its admission as a State
there were only three Chief Justices: Hall, Harding and Hallett. Hall
presided from 1861 to 1863; Harding to 1866: and Hallett— the last of
the alliterative line — retained the position during the last ten years of
Territorial life.

The Associate Justices who served in the same period were Charles
Lee Armour, Allen A. Bradford, Charles F. Holly, William H. Gale,
William R. Gorsline, Christian S. Eyster, James B. Belford, Ebenezer T.
Wells and Amherst W. Stone.

Judge Holly had been a member of the first Territorial Legislative
Assembly, served efficiently in the framing of the first laws, and won suffi-
cient popularity to secure local endorsement for his appointment to the
judgeship of the Central City district, which then was vacant. He had not
been long on the bench, however, Ijefore he disclosed a surprising lack of
integrity and surplus of immoral habits which finally reached such pro-
portions as to scandalize his official position, and which culminated in his
indictment by a grand jury of his own court for a list of offenses involving
the gravest moral turpitude. He immediately resigned, upon advice of the
bar, the indictment was dismissed, and he left the country.

Tlie other courts of the Territory were Probate Courts, with an elec-
tive judge for each coimty, of limited civil jurisdiction aside from juris-
diction in probate cases, and administration of estates concurrently with
the District Courts, and from which appeals lay to the District and Su-
preme Courts. There were also precinct Justices of the Peace, liaving the
ordinary limited statutory civil and criminal jurisdiction. Other than
these there were police magistrates for towns and cities, and legislative
authority to create Criminal Courts in cities and counties of prescribed
population.



656 HISTORY OF COLORADO

The State Constitution was framed by the members of a convention
elected for the purpose, the sessions of which body were held at Denver
during the winter of 1875-1876, under the provisions of the enabling act
of Congress for the admission of the Territory as a State. After the Con-
stitution was framed and adopted by the convention it was submitted to
the people for approval at a general election, and the result being almost
unanimous in its favor the instrument was then forwarded to the President
of the United States — Ulysses S. Grant — who, upon approving the same,
issued a proclamation declaring Colorado to be one of the States of the
Union. This proclamation was dated August 1, 1876 — virtually one hun-
dred years after the Declaration of the Independence of the United States ;
and therefore Colorado came to have the titular, distinctive name of "The
Centennial State."

The members of the Constitutional Convention were elected almost
wholly regardless of political party considerations, as was eminently proper,
"and the body, of thirty-nine members, comprised lawyers, legislators pub-
licists, farmers, and other men of representative character of varied voca-
tions from the mining, agricultural and urban communities of the Terri-
tory. The Constitution as framed and adopted by them was an excellent