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

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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.