Part 36 (1/2)

_Early Linn County Lawyers and Courts_

BY JUDGE MILO P. SMITH

Fifty years ago the judiciary of this county, as well as of the entire country, was quite different from what it now is. There were but two terms of court in a county, and Linn being a large county, terms here lasted about two or three weeks. In the smaller counties, one week or less was sufficient for the transaction of all the business. The grand jury was composed of fifteen men instead of five or seven, as at present, and twelve out of the fifteen had to concur in order to find a bill of indictment. At present the concurrence of a less number than the whole is sufficient. The members of the grand jury selected their own clerk from their own number. They had no authority to act on the minutes of the examining magistrate, but it was obligatory on them to have the witnesses before them, and to examine them personally.

There was no official shorthand reporter to take down the evidence on the trial of cases in court. If the attorneys desired to perpetuate the testimony, or any part of it, they either wrote it down in long hand themselves, or selected some outside person to do it; generally some young lawyer. And sometimes the judge would make the only minutes of the trial that were kept. From these imperfect notes, however taken, the judge was required to determine what should go to the supreme court when he came to settle the bill of exceptions: no easy task. When court opened on the first day of the term--which was done with great outcry--the judge at once empaneled the grand jury, and then proceeded to make what was called a ”preliminary” call of the calendar, at which cases that were not for trial were dismissed, continued, marked settled, or otherwise disposed of. When that call was completed, he then made the ”peremptory” call, and all cases that were for trial were then disposed of as they were reached. There was no a.s.signment of cases for trial as now practiced, but the lawyers had to be ready in each case when reached.

Court week was generally regarded by the people as a sort of a picnic or holiday, and they came in from the country for several miles around to hear the lawyers spar with each other, and catch the ”rulings of the court.” The court room was generally packed with listeners. Then political meetings were generally held during that week when everybody was there and lawyers ready to do the speaking; and they furnished fine entertainments indeed.

The bar of Linn county in the early fifties was an unusually strong one, said by some to be the strongest in the state. There were Judge N.

W. Isbell, Judge Isaac Cook, Judge George Greene, Judge William Smyth, and Col. I. M. Preston. A little in the rear of the above worthies were N. M. Hubbard, R. D. Stephens, Wm. G. Thompson, J. H. Young, Thomas Corbett, and J. W. Dudley. Except Judge Greene and J. W. Dudley, all of these persons lived in Marion.

N. W. Isbell, the first county judge in this county, was selected by the legislature in 1855 as a member of the supreme court, and filled the position with honor and credit to himself and the state for several years, and was afterwards appointed judge of the district court during the Civil war, but resigned both positions on account of ill health. He was a very learned man and a profound lawyer. He greatly enjoyed the investigation of legal questions, possessed an acute and a.n.a.lytical mind, and one richly stored with the results of historical and general reading. In the practice he was not partial to jury trials, much preferring the presentation of legal questions to the court. He had quite an apt.i.tude for affairs, and became successful as an enterprising railroad builder, projecting the old ”Air Line” Railroad, the pioneer of the present route of the C., M. & St. P. Railway across the state.

He left a comfortable estate to his family, dying about the year 1865.

He was of small stature and insignificant in appearance, but with a large head, though small features. Indeed he very much resembled the Hon. Wm. H. Seward in face, head, and stature. He was rather of an irascible temperament and consequently easily thrown off his balance--but no member of the bar was more highly respected than was Judge Isbell for uprightness, honesty of purpose, general intelligence, deep reading in general literature as well as in the law; and his blameless life made him a beloved citizen.

I omit further mention of Judge Greene as there is elsewhere in this work a lengthy sketch of him.

Isaac Cook was born and raised in eastern Pennsylvania and became the possessor of a sound education as a basis for the legal studies he afterward pursued. He served quite a while on the district bench, and was there noted for the care, time, and fairness he devoted to the cases he was called on to hear and decide. His mind was not so quick or rapid in its movements as some others, but it was very accurate in its conclusions. He was a fine chancery and corporation lawyer, and no better pleader ever drew a pet.i.tion than Judge Cook. He was for many years toward the close of his life general counsel for the predecessors of the C. & N. W. Railway Company and the Iowa Railroad Land Company in the state of Iowa. Though he had an office first in Marion and then in Cedar Rapids, he always lived on his farm just south of the former place, in a plain, comfortable brick house. He was a broad shouldered, stock-built man of a dark complexion, and chewed an immense quant.i.ty of tobacco. He had, we believe, more practice in the supreme court of the United States than any other lawyer in Iowa in his day.

William Smyth, first county attorney of Linn county, was appointed judge of the district court to succeed Judge J. P. Carleton about the year 1854, when he was but thirty years of age. He was regarded as an ideal judge. He was of Scotch-Irish descent, and had received a thorough education when young. His education was perhaps more thorough than broad, owing no doubt to his early surroundings. His legal lore was as near exact and profound as was possible, and covered completely the whole circle of legal learning. One who knew him well said, that in commercial law, the law of real estate, and in pleading, he had no superiors and but few equals in the state. He was a trial lawyer in the fullest sense of that term. Careful in the preparation of his cases, methodical in the introduction of his testimony; and in his presentation of his client's cause to a jury, his arguments were close and convincing, logical if not eloquent. He was, perhaps, after his retirement from the district bench, generally regarded as the head of the bar of the county. His knowledge of the affairs of the nation, and the principles of our government was most exact and comprehensive. For wealth of general information, profundity of legal learning, and urbanity of manner and dignity of deportment, he was not surpa.s.sed by any man in the state. Indeed he was early recognized as one of the leaders in affairs as well as of the bar of the state. He and the firm of which he was a member had the largest practice and the best clientage in the county. His practice extended to many of the neighboring counties, such as Benton, Tama, and Iowa, where he had local partners, and where he attended the terms of court. He was a valuable member of the committee that revised the laws of the state as embodied in the Revision of 1860. He was offered a place on the supreme court bench but declined it. He was a delegate to the Republican National Convention at Chicago in 1860--having been a democrat before the slavery question gave rise to the republican party, he naturally sided with Governor Chase, whose political path led in the same direction as his own, and gave that statesman his earnest and persistent support in the convention, voting for him to the last as his choice for president. He was a formidable compet.i.tor of Governor James W. Grimes when the latter was elected to the United States senate in 1858. In 1868 he was elected to congress from this district and died while such member in 1870, at the early age of forty-six. Of all that goes to make up a first rate man and citizen--intelligence, ability, industry, perseverance, honesty, and morality, he was in full possession, and enjoyed the confidence of the people to a greater degree than any other citizen in the county. He was patriotic and brave and served during the war of the rebellion as colonel of an Iowa regiment, and while so serving, he contracted the disease that caused his early death. He was the fortunate possessor of a splendid frame, being nearly six feet in height, and had a large, well formed head--his carriage erect and movements stately and deliberate. He was a model christian gentleman, courtly and polite, with a winning personality. He too was a man of affairs and left a comfortable estate to his family.

Colonel I. M. Preston, born in 1813, was in many respects a remarkable man. Thrown on his own resources when quite young, he learned the trade of carpenter and joiner, but read law while working at his trade, was admitted when about thirty years of age, came to Marion, opened an office, and at once took a position in the front rank of trial lawyers.

He was particularly successful as a criminal lawyer. He possessed a very quick, subtle, and keen mind, and was remarkably resourceful in expedients in the trial of cases. Some lawyers were better pleaders others more learned in the law, but none more apt in furnis.h.i.+ng the facts to fit the case, and but few, if any, excelled him in marshalling those facts in his presentation to the jury. In time he acquired great fame throughout the state as a lawyer and public speaker. He was early appointed district attorney for the district in which he lived, and in 1846 was commissioned by Governor Clark colonel of an Iowa regiment of militia. He also served as county judge of Linn county, and at different times served in both branches of the legislature. He was the father of Judge J. H. Preston and E. C. Preston, both members of the bar, and residents of the city of Cedar Rapids.

N. M. Hubbard, later known as Judge Hubbard, was certainly the most brilliant and noted lawyer that ever lived in or graced the bar of this county. He was appointed in 1865 judge of the district court, and served till January 1, 1867. With a mind keen, bright and luminous, a sound understanding, a rich store of observation, an unparalleled command of language, a readiness in repartee, and unlimited power of invective, he was unsurpa.s.sed by any man in the state, and by but few in the nation. He was for thirty years general attorney for the C. & N.

W. Railway Company in Iowa, and upon his death left a generous estate.

Hubbard's early partner, R. D. Stephens, while a good lawyer, was certainly a past master in finance, and was better known as a banker than lawyer. He established the First National Bank at Marion, and the Merchants National Bank in Cedar Rapids. He died several years ago, quite wealthy. Both Hubbard and Stephens came to Linn county from the state of New York in 1854. In the political campaign of 1856, Hubbard edited the _Linn County Register_, predecessor to the _Marion Register_.

Major J. B. Young was probably the possessor of the best education of any of the lawyers of his time, and was a well read lawyer, a strong advocate, careful and painstaking, but unfortunately possessed an irritableness and quickness of temper that was not calculated to advance the cause of his client in a law suit. He died when comparatively young, when on his way home from California where he had gone on account of his failing health.

W. G. Thompson, better known as Major Thompson or Judge Thompson, still resides here at the ripe old age of eighty-one. But few of the present generation know all there is about Judge Thompson. Born and reared in the state of Pennsylvania of Scotch parentage, with a fair academical education, admitted to the bar when a little past twenty-one, he came to Linn county in 1853, and at once leaped into prominence as a lawyer and politician. In quickness of mind, versatility in extremity, readiness of retort, flas.h.i.+ngs of wit, volubility of speech, touches of pathos, flights of eloquence, and geniality of disposition, and popularity with the ma.s.ses, he had no superior in eastern Iowa, if he had an equal. It has been said of him that he could sit down to a trial table in a case of which he had never before heard, and try it just as well as though he had had months of preparation. He has been county attorney, state senator, presidential elector, major of the Twentieth Iowa Volunteer Infantry, district attorney, chief justice of Idaho, member of the legislature, member of congress, and judge of the district court. And in filling all of these positions, he has served the people faithfully and well. And in private life and as a pract.i.tioner he has surely been ”a man without a model and without a shadow.”

J. W. Dudley lived in Cedar Rapids as Thomas Corbett did in Marion.

They were both careful, pains-taking, and judicious lawyers, not particularly noted in any special respect, but safe, sound, and trustworthy. They have both been long since dead.

J. J. Child and I. N. Whittam were also members of the bar in the early '50s. They both lived in Cedar Rapids. Judge Whittam was noted for his industry, care and patience in regard to any matter in which he became engaged. He did not claim to be a man of mark or a great lawyer, but certainly acquired and retained the confidence as an advisor of many of the best citizens in Cedar Rapids and vicinity.

J. J. Child, long since dead, was said by those who knew him best to be one of the best lawyers in the state. Though not an advocate, his learning in law was wide and deep, and no client ever made a mistake in following his advice. Unfortunately his habits of life seriously impeded the good results that could have flowed from such a prolific source.

After these, came others to fill their places, but the most of them are here now, and have received special reference and personal mention in these pages.

The entire state in 1857 was divided into twelve judicial districts, with one judge in each district. Accompanying the act was the const.i.tutional provision that new districts could not be created oftener than one new district in four years. Within about ten years the business in court became so congested that relief was necessary and was sought in all directions. Finally, in 1868, the legislature pa.s.sed a circuit court bill, which by its terms divided every district into two circuits and provided a judge for each circuit. The circuit court had concurrent jurisdiction with the district court in all cases at law and in equity, and sole jurisdiction in probate matters and in appeals from justices of the peace, but it did not have jurisdiction in criminal cases. The same legislature abolished the county court that formerly had jurisdiction of probate matters. In further defining the duties and powers of this court, the law created what was called a general term, to which all appeals from, and application for the correction of errors by the district and circuit courts would lie. The personnel of that court consisted of the judge of the district and the two circuit judges, and it sat twice a year. In this district one of the sessions was held in Marion and the other in Iowa City. The district comprised the counties of Jones, Cedar, Linn, Johnson, Benton, Iowa, and Tama.

The first three counties const.i.tuted one circuit, and the latter four the other one. The limitation of the right to appeal when the amount in controversy was less than one hundred dollars was then pa.s.sed. An appeal finally lay from the decision to the general term of the supreme court. When a case was decided at the general term, the judge to whom it was referred for a decision wrote out the decision in an opinion as the supreme court judges do, but the opinions were not reported in the books.

[Ill.u.s.tration: PUBLIC SCHOOL AT SPRINGVILLE]