History of the Bench and Bar of Colorado

While researching the history of courts in Weld County, and by default Colorado, we came upon this interesting book in the California Digital Library. The following is an excerpt from the book; we would encourage to you view the entire book by clicking on the link to the right.

History of Bench and Bar of Colorado, page 13 - 20

benchbarofcolorado_cover When the first seekers after gold pitched their camp upon the banks of Cherry Creek, near its confluence with the Platte, in the spring of 1858, and thus laid the foundation for what, in the course of a few years, developed into the City of Denver, the greater part of what today is known as Colorado was part of the Territory of Kansas. All the territory west of a straight line drawn from the northeast corner of New Mexico to the southern boundary of Nebraska and extending as far as the Utah line was embraced in the Kansas county of Arapahoe, and the first court in this region the Pike's Peak country it was commonly called was a Kansas court.

Buried in the archives of Kansas, among the records of that state's territorial days, is an act passed by the territorial legislature on August 25, 1855, which, among other things, provides for the appointment of one Allen P. Tibbitts as probate judge of Arapahoe county. Inasmuch as Arapahoe county contained the major part of our present-day Colorado, Tibbitts may rightfully be called Colorado's first judge,
even though he never visited Arapahoe county, much less held court within its boundaries. Why Judge Tibbitts failed to assume the duties of his office is not recorded. Most likely he was aware of the fact that, with the exception of a few trappers and hunters, there were no white people in the country then, and he did not relish the long overland trip in those days when hostile Indians infested the region.
March, 1859, witnessed the organization of the first real court in the Pike's Peak country. With the arrival of a steady stream of gold seekers and others in the settlements along Cherry Creek and the Platte, the need of a court had
made itself felt in the community.

Accordingly the organization of a probate court, along with a full complement of
county officers, such as sheriff, registrar of deeds, coroner, attorney, road supervisors, etc., was determined upon. An election was held in March, 1859, and S. W. Wagoner, one of the earliest arrivals in the Pike's Peak country, received
most votes for the office of probate judge.

Memoirs of pioneer residents and the records of the State's early history fail to give any definite information regarding the territory over which the jurisdiction of this probate county extended as a matter of fact, Judge Wagoner and the men who had elected him were not quite sure. In February, 1859, one month before Judge Wagoner's elevation to the bench, the Kansas legislature had enacted a law dividing the Arapahoe county of 1855 into four counties, Montana, Broderick, El Paso and Oro. The Cherry Creek settlements, where most of the people then lived, were within the confines of Montana, comprising practically the entire northwestern section of the State as constituted today.

Some contended that Wagoner was elected probate judge for the county of Arapahoe, as constituted by the Act of 1855, which had named Judge Tibbitts; others insisted that Wagoner's jurisdiction extended only over Montana county.
Be this as it may, Wagoner duly qualified as probate judge, and the other officers elected with him assumed the duties of their office, among them Marshall Cook, the first county attorney.

Wagoner and his fellow officers had been in office but a few months when the settlers in the Rocky Mountain region, or at least a goodly portion of them, became imbued with the idea of seceding from Kansas and setting up an independent
government. This movement, fostered chiefly in the Cherry Creek settlements, culminated in the establishment of what in history is known as the "Territory of
Jefferson," and was, as far as the courts are concerned, responsible for a condition of affairs which may be called extraordinary. It brought into being a multiplicity of courts until there were so many of them that the law-abiding citizens, in sheer desperation, were compelled practically to take the law into their own hands when a serious crime had been committed.

The movement for an independent state or territory first sprung- up late in the summer of 1859. Many levelheaded men among the settlers full well realized that any attempt on the part of the settlers to create a territory was without warrant of law, and that such a government never would be recognized by Congress or any other state, but their warnings remained unheeded. Leaders in the movement insisted that the act creating Kansas territory provided that all lands to which the Indian title had not been extinguished, should not be considered within the
Kansas jurisdiction. They pointed out that the title to the land in the Pike's Peak region was still held by the Indians, and consequently, they argued, Kansas had no jurisdiction over the region.

The warnings of the opponents of an independent government remained unheeded and the "Territory of Jefferson" became an accomplished fact at an election held on
October 24, 1859. A few weeks prior to this election a constitution had been adopted which, besides a full complement of officers from governor down, provided for a chief justice of the Supreme Court, two associate justices and an attorney
general. A. J. Allison was elected chief justice, J. N. Odell and E. Fitzgerald associate justices, and R. J. Frazier attorney general.

The legislature of the Territory of Jefferson went to work with a will. Its members were very much in earnest and actuated with a desire to give the territory a government and laws enjoyed by the states in the east. Criminal and civil codes, copied wholesale from eastern states, were adopted and approved by the "governor," R. W. Steele, an able lawyer who had come to Colorado early in 1859.
Courts and court procedure enjoyed the special attention of this first Jeffersonian legislature. In less than two months its members enacted, besides many other laws of a general nature, the following which directly affected the administration of justice: establishing a judicial system composed of a supreme, district, county, and justice of the peace courts, and defining the jurisdictions of each of these courts; appointing notaries public; providing docket fees; fixing terms of court ; regulating and authorizing writs of attachment and garnishment ; providing for the recovery of property by writs of replevin, and so forth. The legislature even authorized
the appointment of commissioners for the codification
of the laws.

While the men responsible for and active in the conduct of the "government" of the Territory of Jefferson were thus engaged in creating courts and enacting laws, a considerable portion of the citizens then living in this region, and not the least influential, absolutely refused to recognize the territorial government and the courts which had been created by the territorial constitution and the legislature. They
maintained, and rightfully so, that the whole Rocky Mountain country was still a part of Kansas and that only officers elected under Kansas laws legally held office.

When the movement for the establishment of the Territory of Jefferson had assumed considerable momentum, the authority of the first probate court, presided over by Judge Wagoner, had begun to wane. As the territorial movement gained momentum, the people paid less and less attention to Wagoner and his court, until finally it passed completely out of existence. The disappearance of this court, recognized by them as the only court doing business legally within the territory, gave the champions of the Kansas cause their opportunity. They held an election in November, 1859, and elected a full set of officers, including a probate judge, for
"Arapahoe County, Kansas." About the time these Kansas officials assumed the duties of their office, courts under the Jeffersonian constitution were organized. The natural result was conflict between the two courts. To add to the confusion Denver City, under an act passed by the legislature, had organized an Appellate and Common Pleas Court for the territory embraced within the city limits, and, in addition, there was still another court conducted by the Arapahoe County Claim Club. Originally organized for the protection of its members against claimjumpers,
this club had gradually extended its jurisdiction until its "court" dealt with all classes of offenders.

Thus there were at least four courts doing business in Arapahoe county. With such a multiplicity of courts it is not surprising that the proper enforcement of law and order suffered. Litigants, of course, commenced what litigation they had in whatever court they knew was friendliest to them. When things did not go to suit them they would take a change of venue from one court to another until they found what they wanted. Criminals experienced little trouble in escaping just punishment, even though county attorney Robert Collier, was holding office in both the Kansas and Jeffersonian courts, having been elected by the adherents of both forms of government, and could prosecute in both courts.

Conditions in other counties created by the Kansas and Jeffersonian territories were not quite as bad as in Denver and Arapahoe county. The vast majority of the settlers lived in and near Denver and the other counties were only sparsely settled. On the plains east of the Rockies there were hardly settlers enough to keep a court busy, and in the mountains the miners had organized courts which were the recognized authorities of all the miners, and which made probate courts, such as provided by Kansas or Jefferson Territory, unnecessary. These courts in the mining communities, named "Miners' Courts," transacted all the court business there was to transact, and the miners paid little or no attention to any other courts.

As far as can be ascertained, the first of these Miners' Courts was organized in 1859, soon after the discovery of gold in the upper Clear Creek region. Its jurisdiction extended over what in those days was known as the Gregory district. All other Miners' Courts in the state were patterned after the Gregory district court. Their machinery was exceedingly simple, but they filled the wants of the people then digging for gold in the mountains.

The officers of a Miners' Court were a president, a probate judge, a sheriff or constable, a surveyor and recorder, a secretary and a treasurer. The probate judge was the chief executive officer. All officers were elected at a general meeting
of the male residents of the district over which the court was to have jurisdiction. Codes, criminal as well as civil, were enacted. These codes were, as a rule, very simple. Anyone could understand them. The criminal laws, usually, were enacted with the one purpose in view of ridding the community of undesirables, either by the hangman or by banishment. The civil code dealt chiefly with those subjects in which the men who devised it were mostly interested such as mining claims, mill sites, and other matters relating to mining.
 
The Miners' Courts worked with promptness and dispatch. Litigants and defendants had little cause to complain about the law's delays. Once a Miners' Court had taken jurisdiction over a case it was not long before the case had been disposed of. To prevent miscarriage of justice and give everyone a square deal provision for appeal was made in every one of the districts. Every litigant and defendant had
the right to appeal from the decision of the court to a miners meeting, composed of all the men in the district. The decision of the miners' meeting in all cases was final.
The Miners' Courts, perhaps more than any other agency, were responsible for the maintenance of law and order in the mining communities. They enjoyed the universal respect of the law-abiding citizens and were feared by evildoers. The first assembly of the Territory of Colorado, in 1861, by special enactment, confirmed their judgments and also enacted into state-wide laws many of the provisions of their simple codes as they affected the mining industry.

Failure of the Kansas, Jeffersonian and municipal courts in Arapahoe county to punish evildoers, according to their deserts, resulted in the organization, by the better class of citizens, of what became known as Peoples' Courts. During
the year 1860 there was an extraordinary influx of settlers into the Rocky Mountain region. Reports that gold had been discovered in the mountains and that men were growing rich fast had spread throughout the east. As the natural result, thousands flocked to the new El Dorado, and with them came scores of criminals of the worst type. Most of these undesirables made their headquarters in Denver. It was with these criminals that the Peoples' Courts dealt. They were not courts in the usually accepted sense, though, in a way, all the forms of court procedure were observed in their proceedings. They have been compared with the vigilantes of other western communities of the early days, but this comparison is hardly fair because, unlike
the vigilantes, they gave every accused man a fair trial and the benefit of a legal adviser before their sentences were pronounced and carried out.

Peoples' Courts were organized whenever an especially serious crime, such as a murder, had been committed. There were three judges and a jury of twelve, composed of substantial citizens. The man on trial was given every opportunity
to present his side of the case and offer such testimony as would prove his innocence. The sentence of a Peoples' Court usually was death, though there are a number of cases on record in which the juries brought in verdicts of acquittal.
In no case, as far as is known, did a People's Court ever make a mistake when it sent a man to the gallows. The sentence was usually carried out immediately after it had been pronounced.

In their methods and the speedy execution, the Peoples' Courts resembled the Miners' Courts of the mountain communities. There the similarity ends, because the Miners' Courts were regularly organized and permanent institutions, while the Peoples' Courts were called together only when the occasion required action by the law-abiding element. The Peoples' Courts did not possess any authority based upon law, other than the law of self-preservation, for had they not meted out justice, the communities might as well have been turned over to the lawless element. They,
more than the courts organized in accordance with the law, either Kansas or Jeffersonian, were responsible for the maintenance of law and order.

Kansas and Jeffersonian courts held regular sessions in Denver and other towns of the region for several months. Gradually the influence of the government of the territory began to wane. The people began to realize that they had made a mistake and acted contrary to law when they had organized a territory, instead of letting Congress attend to the matter. In addition, the men in the mining communities
refused to recognize the territorial "government" and pay the poll tax which was ordered to produce revenue with which to defray the expenses of the government. Through their own courts they were enabled to administer justice and
regulate their own affairs to their entire satisfaction. They did not need the territorial government or its courts.

When the time for the second election of officers of the -territorial government arrived, Jefferson territory had been abandoned by most of the people living within its boundaries. Out of a population of more than 25,000 less than a thousand
went to the polls and cast their votes. Shortly after this election the people of Eastern Kansas Territory adopted a constitution for a State of Kansas, which was to extend west to the 102nd meridian, thus leaving out practically all the
territory embraced by the Territory of Jefferson.

Far-seeing men, who realized that the time had come for the organization of a territory in accordance with the laws of the United States, interested President Buchanan and Congress, and in February, 1861, Congress passed the bill
which created the Territory of Colorado, with boundaries corresponding with those of our state today. Jefferson Territory, and with it the judicial system which had been created under it and all of the laws passed by its legislature, passed out of existence in June, 1868. The last act of Robert W. Steele, the "Governor," was a proclamation asking that all

end of page 20, please view the entire book by clicking the link on the right. 


Contact

Patti Russell
Email:prussell@co.weld.co.us
Phone:(970) 356-4000 ext. 4230
Jennifer Finch
Email:jfinch@co.weld.co.us
Phone:(970) 356-4000 ext. 4232