LOS ANGELES
 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 >^^£^
 
 /iLAjj^^koJL
 
 ROBERT WILBUR STEELE 
 
 DEFENDER OF LIBERTY 
 
 BY 
 WALTER LAWSON WILDER 
 
 "Nature doth nothing so great for great men, 
 As when she's pleased to make them lords of truth; 
 Integrity of life is Fame's best friend 
 Which nobly, beyond death shall crown the end." 
 
 — John Webster. 
 
 DENVER. COLORADO 
 
 19 13
 
 Mtmaxlni ^h'liXon 
 
 Of this edition there have been printed 
 200 copies, of which this is 
 
 No. 
 
 / 
 
 Copyright. 1913. by 
 MRS. ROBERT W. STEELE
 
 
 To THE Young Men of the West 
 
 who have faith in an American ideal of democracy 
 
 and who measure Life by the standards of 
 
 Integrity, Unselhshness and Patriotism, 
 
 IN MEMORY 
 
 of one who followed faithfully 
 
 along the paths they seek to tread, 
 
 this book is dedicated. 
 
 ■C 
 
 v-«'_i;.07W
 
 CONTENTS 
 
 chapter page 
 
 Preface 7 
 
 I The Peaceful Revolution 9 
 
 II The Makers of the Machine 18 
 
 III In Life's Morning 31 
 
 IV The Builders 49 
 
 V The Tribunal of the People 67 
 
 VI Unofficial Opinions and Activities 86 
 
 VII The Right of Personal Liberty 102 
 
 VIII The Opinion in the Mover Case 119 
 
 IX Free Speech and a Free Press 157 
 
 X The Opinion in the Patterson Case 168 
 
 XI The Right of Free Elections and the Decision in 
 
 the Tool Case 218 
 
 XII The Right of Popular Self-C;overnment 226 
 
 XIII The Decisions in the Rush Amendment Cases . . 238 
 
 XIV Opinions in Some Minor Cases 255 
 
 XV The Court of Last Resort 273 
 
 XVI In the Measure of Appreciation 282 
 
 XVII The Man Whom the People Loved 300 
 
 Index 319
 
 LIST OF ILLUSTRATIONS 
 
 Robert Wilbur Steele Frontispiece 
 
 OPPOSITE 
 PAGE 
 
 Dr. Henry King Steele 44 
 
 The Steele Memorial Hospital, Denver, Colo 92 
 
 Robert Wilbur Steele (from photograph, 1883) 12+ 
 
 The Robert W. Steele School Building, Denver, Colo. . . 156 
 
 Robert Wilbur Steele (from photograph, 1900) 204 
 
 Memorial Window, Supreme Court Room, Capitol Building 252 
 
 The Robert Steele Cabin .\t Ward's Ranch, White River 
 
 Valley 300
 
 PREFACE 
 
 In presenting this sketch of the life and work ot 
 my husband, my own desire has been strengthened 
 by the solicitation of many of his friends. 
 
 The book is not intended as a complete biog- 
 raphy, but includes a recital of the prominent events 
 connected with his official life. 
 
 His character was one ot such modesty and 
 simplicity that but an imperfect record can be 
 obtained concerning many of his activities, but 
 enough is known to establish his position perma- 
 nently as a clear figure of loyalty and truth, the 
 champion and friend of the people. 
 
 His purpose in all the years of his public life 
 was to be of real service to the people, for whom 
 he labored untiringly and in whom he had an 
 abiding faith. He ever regarded himself as an 
 instrument to execute their will, and he considered 
 his duty to his state above all else. 
 
 It is my hope that his efforts for justice and 
 humanity shall be continued through these pages,
 
 and that young men desiring to hold steadfastly to 
 the highest ideals of citizenship, and to live a life 
 of patriotism, purity and honesty, may find inspira- 
 tion and encouragement from his example. 
 
 A. T. S.
 
 ROBERT WILBUR STEELE 
 
 DEFENDER OF LIBERTY 
 CHAPTER I 
 
 THE PEACEFUL REVOLUTION 
 
 "We are upon the eve of a great reconstruction. It calls for 
 creative statesmanship as no age has done since that great age in 
 which we set up the government under which we live, the govern- 
 ment which was the admiration of the world until it suffered wrongs 
 to grow up under it which have made many of our own compatriots 
 question the freedom of our institutions and preach revolution 
 against them. I do not fear revolution. I do not fear it even if it 
 comes. I have unshaken faith in the power of America to keep its 
 self-possession." 
 
 WooDROw Wilson. 
 
 (Address before the American Bar Association, August 31, 1910.) 
 
 The first decade of the twentieth century marked in 
 Colorado a revolution in the institutions and the practices 
 of government so profound and so extensive that the people 
 of this community, who have lived through that period of 
 change and of strife, are even yet unaware of the full extent 
 of its meaning and consequences. 
 
 The measures of progressive legislation, as they are 
 commonly called, now adopted into the fundamental, con- 
 stitutional structure of political organization, including the 
 direct primary, the perfected Australian ballot, the initiative, 
 referendum and recall, with the complete system of munici- 
 pal government collectively known as "the commission 
 plan," involve something more than a modification of the 
 political institutions that existed in this state in the closing 
 years of the nineteenth century. They constitute, in effect
 
 10 ROBERT WILBUR STEELE 
 
 and in form, a new instrument of government, recognized 
 as such both by its opponents and its advocates, and admitted 
 universally to be the outcome of a conscious effort of the 
 masses of the people to secure a more direct and a more 
 genuine measure of popular self rule. Yet these changes 
 of form and practice have been accomplished without any 
 reversal of the principles upon which free government has 
 always rested. There has been no change in the ultimate 
 ends for which government is established and maintained by 
 the free and enlightened people of the world. 
 
 As a result of the adoption of these amendments to 
 the state constitution, many evils that seemed inseparable 
 from the political system have been dissected and destroyed. 
 New evils, perhaps, or new dangers, have been introduced, 
 but such bold frauds as marked the development of the 
 political machines, such persistent and insolent defiance of 
 the people's will as characterized the opposition to the 
 miners' eight-hour law, such usurpations of unconstitutional 
 powers as were the result of the effort to establish machine 
 government as the fruit of machine politics, cannot be 
 repeated under present conditions. Already it is hard to 
 realize that such evils were ; it is increasingly difficult to 
 understand how they came to be possible. 
 
 The reaction in Colorado against existing political 
 forms, customs and institutions, and the popular determina- 
 tion to regain control of public affairs from those persons 
 whom the people had come to regard as usurpers, was closely 
 connected with a wider movement affecting nearly every 
 American state. In Colorado, as elsewhere, the development, 
 the incidents, the applications, the course and the final extent 
 and results of this movement were largely modified and 
 determined by local conditions. Each state of the Union 
 has felt, in greater or less degree, the symptoms of popular 
 unrest and dissatisfaction. Each has counted some amount
 
 THE PEACEFUL REVOLUTION 11 
 
 of progress that has been made in a period of change and 
 reconstruction. Each is prone to assume that its experiences 
 have been more wonderful, more illuminating, more bene- 
 ficial than those of other states. New Hampshire, New 
 Jersey, New York, Pennsylvania, Wisconsin, Missouri, 
 Oregon, Washington are in the minds of all men as examples 
 of political progress in recent years, and there is perhaps no 
 state in which a careful search would not disclose some 
 evidence of a similar movement. 
 
 In Colorado the transition from the old to the new has 
 been marked by events of dramatic intensity and of sensa- 
 tional force. The strife of parties and of factions has been 
 carried far beyond the range of ordinary political contests. 
 The state has been brought to the verge of civil war. Politi- 
 cal discussion has been extended to the ultimate and basic 
 principles of civic and social organization. If on the one side 
 ancient and outworn dogmas have been summoned to sustain 
 the defense of positions hard pressed by the popular assault, 
 on the other some of the soundest and firmest conclusions 
 of human experience have been called in question, and some 
 of the wildest of ancient follies have been propounded as 
 the newest and best revelations of political wisdom. 
 
 A review of any portion of the vast domain of politics 
 and government in Colorado cannot be complete without 
 some consideration of those major movements and influences 
 that have determined all minor events. No consideration 
 of the part played by any individual in the public affairs 
 of this state in recent years can be reasonable or adequate 
 without an analysis and an understanding of the great 
 currents of popular thought and feeling during that period. 
 This is particularly true of one to whom it was allotted to 
 stand in a peculiar and impressive manner as the prophet 
 of the New Era; a man of extraordinary foresight and 
 discernment, of judicial temperament unswayed by all the
 
 12 ROBERT WILBUR STEELE 
 
 clamor of faction and the clash of opposing interests, of 
 unimpeached and unimpeachable personal integrity ; a 
 statesman whose clear vision struck straight through the 
 sophistries of demagogues on one side and of the hirelings 
 of special interests on the other, down to those fundamental 
 principles of American popular government which, buried 
 for a time under an accumulated mass of perversion, abuse 
 and misunderstanding, were always potential as a living 
 source of regeneration and of cure for political ills; a judge 
 whose only standard of official duty was his own clear- 
 sighted vision of the eternal principles of Law, Justice and 
 Humanity, and with whom the clamors of the mob were as 
 ineffective as were the appeals to selfish ambition and per- 
 sonal interest made by those concerned in subverting public 
 offices to personal ends — Robert Wilbur Steele, late chief 
 justice of the Supreme Court of Colorado. 
 
 To no one man can properly be given the sole or even 
 the main credit for the reforms that have come into the 
 politics and the government of Colorado in recent years. 
 Upon no one man ought to be imposed all the blame, either 
 for delay in much needed change or for the furtherance of 
 unwise or untimely measures of radical legislation or con- 
 stitutional amendment. Yet in the complicated struggle, 
 extending through many years, involving every department 
 of government and engaging the activities of many men — 
 governors, legislators, politicians, writers, speakers, and 
 leaders in every way of public life — if any part of the 
 contest is likely to be overlooked or underestimated it is 
 that waged before the great tribunal that has assumed from 
 time to time not merely to declare the meaning of laws 
 written by the representatives of the people, but also to 
 determine the limits of the power of the people to make 
 effective their will in public affairs. More than once in 
 the course of those revolutionary years the Supreme Court
 
 THE PEACEFUL REVOLUTION I3 
 
 of Colorado was appealed to as the arbiter in disputed 
 questions which concerned something immeasurably more 
 important than the ordinary issues of civil or criminal cases 
 and which, reaching down to the very roots of American 
 free government, involved the most vital and primal prin- 
 ciples of personal liberty and political freedom. 
 
 It is not surprising that, amid the peculiar conditions 
 of Colorado in those years, the Supreme Court of the state — 
 which is in its nature that branch of the government least 
 amenable to popular influences — should have been regarded 
 by those concerned in resisting the rising tide of progressive 
 legislation as the citadel of conservatism. If it could be 
 established as a paramount principle of government that 
 this high court was possessed of authority to determine not 
 only the limitations of the powers of the executive and 
 legislative departments, but also the constitutional restric- 
 tions permanently imposed upon the people in deciding the 
 methods and in choosing the instruments of self government, 
 that group of a few men, elected for long terms of office, 
 and limited by necessary qualifications of learning, men- 
 tality and experience to a class removed from the common 
 thoughts and impulses of the people, would easily become 
 by far the most powerful part of the government. And 
 such a court, so constituted and with such powers, stead- 
 fastly maintaining the deadly rule, stare decisis, would 
 inevitably be the strongest defense for established wrongs 
 and the greatest obstacle to progress and reform that could 
 be devised. On the other hand, it was early recognized by 
 the forces of restoration and regeneration that their victory 
 could be complete and assured only when this inner citadel 
 of government was in the hands of the people, not merely 
 by right of temporary occupation, but under such conditions 
 that at all times and under all circumstances it should be 
 open to their possession and control.
 
 H 
 
 ROBERT WILBUR STEELE 
 
 The fact that there was in the Supreme Court of this 
 state during the years from 1901 to 1910 a judge whose 
 temperament and inclination were favorable to the cause of 
 reform, who possessed the learning and the ability to set 
 forth his statements of fundamental principles so clearly, 
 so logically and so authoritatively that they commanded the 
 respect even of those that held contrary views, became under 
 such conditions a matter of high historical significance and 
 of immeasurable popular benefit. That those statements 
 were the dissenting opinions of a minority judge was of 
 small importance compared with the fact, demonstrated by 
 subsequent events, that they voiced both the opinion and the 
 will of the people of the state. 
 
 The basic principle involved in these cases presented 
 for the determination of the Supreme Court was the same 
 that underlay all the other political controversies of this 
 stormy era. It was the principle that lies at the foundation 
 of the American system and the American ideals of govern- 
 ment — the principle of the right of the people to govern 
 themselves. This principle was involved in the long struggle 
 against the partisan machines which finally resulted in the 
 adoption of the direct primary and the headless ballot. It 
 was the core of the controversy concerning the right of the 
 executive to use the military arm of the government to 
 enforce a partisan view of the facts and causes of civic 
 disturbance and lawlessness. It was a part of the argument 
 for and against the self-government of cities under the Rush 
 amendment, which, when adopted, became the Twentieth 
 article of the state constitution, and from which later the 
 power to establish the "commission form" was derived. It 
 was concerned in that abuse of legislative power which, 
 beginning with the arbitrary decision of legislative contests 
 upon partisan grounds regardless of the equities of each 
 case, culminated in the partially successful attempt to over-
 
 THE PEACEFUL REVOLUTION I5 
 
 turn by legislative procedure the choice by the people in a 
 general election of a governor of the state. It lay back of 
 the effort to put the control of elections into the hands of 
 the judiciary, thereby removing from the people the respon- 
 sibility as well as the power of self rule. It prompted 
 resistance to the attempt to impute to the judges of the 
 Supreme Court a superior sanctity and an authority outside 
 of and differing in quality from the delegated authority of 
 the people, the only valid and all sufficient source of legiti- 
 mate political power. It was associated and closely linked 
 with the nation-wide movement for the direct election 
 of United States senators, as a measure of relief from acts 
 and influences that had greatly increased the evils of machine 
 politics in the state. 
 
 In a movement of this kind, extending over many years 
 and involving innumerable controversies, personalities and 
 events, very few of the participants are intelligently con- 
 scious of their relations to each other or to the general 
 movement in which they are engaged. Each acts for him- 
 self, under the impulse of his own interests or ideals and 
 of the circumstances by which he is immediately surrounded. 
 It is only after the movement has run its course, and the 
 results of the long continued process have been balanced 
 and determined, that it is possible to analyze causes and 
 effects and to resolve the complicated interrelations of per- 
 sons and events. That is true of the matters now under 
 consideration; yet even amid the most confusing clamor of 
 partisanship and selfish appeal there were some that saw 
 clearly both the basic principles involved and the ultimate 
 dangers that must result if those principles were violated. 
 Nowhere else than in the Supreme Court could the revela- 
 tion of what lay beneath the surface of passing events have 
 been made with so great an effect, and even there this dec- 
 laration would have failed of its full force if it had not
 
 l6 ROBERT WILBUR STEELE 
 
 been free from the suspicion of unworthy motive, partisan 
 bias or improper influence. Later years brought the vindi- 
 cation of Judge Steele's opinions as the voice of the people 
 of Colorado, but even while these controversies were pending 
 there was never any doubt in the minds of those that knew 
 him that he was standing for what he believed to be the 
 best interests of the people of the state and that he was 
 performing conscientiously the highest duty of an upright 
 judge in declaring, without fear or favor, his honest opin- 
 ions concerning the great principles that ought to determine 
 all political controversies and to guide all governmental 
 activities. 
 
 Judge Steele's opinions upon the broad points of public 
 policy, and his appreciation of fundamental principles 
 involved in casual controversies, undoubtedly had an impor- 
 tant influence in the final decision of these matters. His 
 powerful advocacy and resolute defense of the cause of the 
 people made him one of the foremost champions of the 
 forces of reform. But his aid to progressive legislation 
 was by no means all his service to the state at this critical 
 time. He was one of the great conservative forces when 
 conservatism was especially needed. His presence in the 
 Supreme Court of the state inculcated respect for that tribu- 
 nal as a part of the people's government, and demonstrated 
 the way of peaceful amendment as infinitely better than 
 the fatal paths of riot, insurrection, political fraud and 
 extra-constitutional usurpation. It was his mission to prove 
 that the theory of popular self government is neither anar- 
 chistic nor disruptive. He voiced no newly discovered or 
 foreign panacea for political ills, but, reverting to the prin- 
 ciples laid down by the founders of this government and 
 by the authors of our constitution, he revealed the truth 
 that the new Americanism is nothing else than a restoration 
 of the old. He saw in the demand that the people shall
 
 THE PEACEFUL REVOLUTION I7 
 
 control their public affairs without the interference of legis- 
 lators, judges or governors simply the claim of the rightful 
 owner to property and powers wrongfully held. Believing 
 that government is, and of right ought to be, the inalienable 
 estate of all the people, he imposed the entire structure of 
 political organization upon the broadest and safest basis, 
 and erected for Law and Order their surest defense against 
 ignorance, demagoguery and the passing storms of popular 
 passion and unrest. 
 
 It would not be possible to trace within reasonable 
 limits of time and space all the minor incidents and move- 
 ments necessary to a complete understanding of the impor- 
 tance of Judge Steele's career in the Supreme Court from 
 1901 to 1910. Enough has been said to indicate that his 
 work there bore a very intimate relation to the great public 
 events of that period, and that in his official opinions he 
 contributed a powerful, and in some measure a decisive 
 influence for the happy settlement of those most serious 
 and most dangerous controversies. 
 
 Some further review of matters previous to that time 
 is desirable for an intelligent appreciation of his ideals, his 
 purposes and his opponents.
 
 CHAPTER 11 
 
 THE MAKERS OF THE MACHINE 
 
 Rightful rule of the party, in politics, and rightful 
 rule by the party, in government, must be by the will of 
 the majority and for the welfare of the whole. The rule 
 of the machine, in politics and in government, is a rule by 
 the minority, for the benefit of the few. 
 
 It is generally understood that the year 1892 marked 
 the beginning of a new era in Colorado. Previous to that 
 time the development of the state had been dependent mainly 
 upon a single branch of one industry — silver mining. The 
 political conditions had been similarly simple, and in spite 
 of the election of two Democratic governors — Grant in 1882 
 and Adams in 1886 — largely on account of their personal 
 popularity, the state was generally regarded as safely 
 Republican upon partisan issues and steadfastly devoted to 
 the principle of a protective tariff. 
 
 Other writers have traced the downfall of silver as a 
 standard of value, the disastrous consequences to Colorado 
 business from the closing of the silver mines, the trans- 
 formation of industry by the development of gold mining, 
 the political revolution accomplished in this state by what 
 was popularly regarded as the betrayal of the cause of free 
 silver, the turbulence and sedition rising to the level of 
 insurrection as a result of labor disputes, and the manifold 
 disturbances and irregularities incident to partisan contests 
 and personal rivalries in politics. It is not the present 
 purpose to stir again the troubled waters of social and 
 political controversies by retelling the story of events that 
 have been the subject of so much furious discussion, but 
 rather to review their general course and to trace the broader
 
 THE MAKERS OF THE MACHINE IQ 
 
 and deeper principles involved, in order to arrive at a clearer 
 understanding of the progress that has been made and of 
 the results that have been gained in the settlement of these 
 vital problems. 
 
 In the formative period from 1892 to 1900, when events 
 were shaping themselves for a great struggle, and also in 
 the later decade when controversy reached its climax and 
 the issues involved were decided, very few of the partici- 
 pants seem to have realized that the reorganization of 
 industry, the reorganization of politics and the reorganiza- 
 tion of government, with the manifold incidents of change, 
 were all a part of one great movement. The events were 
 extremely complicated in their interrelations, but they were 
 all the result of a more or less conscious attempt of the 
 people of the state to adjust themselves to new conditions 
 that had arisen here. Some of these provocative conditions 
 were in the nature of political wrongs and abuses, while 
 others marked the material development of the state and 
 were industrial rather than political. 
 
 Previous to the downfall of silver in 1892-93 Colorado 
 was a mining state, and mining in Colorado at that time 
 meant silver mining. Other industries, such as agriculture, 
 manufacturing, transportation, and municipal service were 
 subsidiary to and dependent upon silver mining. The 
 demonetization of silver, with the consequent depreciation 
 of tne one thing Colorado had to sell in the world's markets, 
 necessarily meant either the destruction of practically all 
 that had been accomplished here, or the establishment of 
 industry upon a new and different foundation. The deso- 
 lating experiences of Aspen, Creede, Silver Cliff and Rico 
 indicate what might have been the alternative for the entire 
 state if the people of Colorado had failed to make the most 
 of the opportunities that remained when the silver mines 
 were closed as a result of the acts of the national congress.
 
 20 ROBERT WILBUR STEELE 
 
 Fortunately for the state and for its people, Colorado 
 stands possibly first in the variety as well as in the wealth 
 of its natural resources. The first immediate result of the 
 closing of the silver mines was a rapid development in gold 
 mining, and a slower but ultimately an even more important 
 expansion of the agricultural achievements of the state. In 
 connection with these, industry was stimulated along num- 
 berless lines. The cities grew rapidly. Coal mining 
 increased marvelously, giving a sure clew to the manufac- 
 turing development of the state. The railroad companies 
 expended enormous amounts in advertising the attractions 
 as well as the resources of Colorado, and the tourist business, 
 the fruit business, the coal business, the livestock business 
 and other branches of traffic transcended the transportation 
 of silver ores and mining camp supplies, which had been 
 the main object of the Colorado railroads when pushing 
 their ways across the broad plains or surmounting the engi- 
 neering difficulties of canons and passes. 
 
 The population of the state increased rapidly and also 
 underwent a noteworthy change. The earlier inhabitants 
 of Colorado were mostly from the northern states of the 
 Mississippi Valley and the Atlantic seaboard, and American 
 born. Later years brought an increasing number from the 
 southwestern states, not an inferior but a different stock; 
 and there came, too, in these later years a steadily greater 
 number of foreign born laborers, unfamiliar with American 
 institutions, standards and ideals, and easily swayed as the 
 dupes of demagogues on one side or controlled by the agents 
 of wealth, political ambition or special privilege upon the 
 other. The disgraceful Arata riot and lynching in Denver 
 in 1893, the Huerfano County rioting in 1894 involving the 
 United States in an international episode with the govern- 
 ment of Italy, and the Leadville miners' strike, which 
 required the active service of the state militia for a period
 
 THE MAKERS OF THE MACHINE 21 
 
 of nine months in 1894, were early evidences of the changing 
 character of the population. 
 
 Silver mining of the early days was merely the later 
 stage of prospecting. The successful and the unsuccessful 
 prospector, of similar origin and equal in intelligence and 
 social rank, later became, the one the capitalist and mine 
 owner, the other the wage earner. The pioneer smelters 
 were owned and operated by men who either were mine 
 owners or were in close sympathy with the actual owners 
 and workers of the mines. The early pages of Colorado 
 history are starred with the names of "mining kings" and 
 "smelter kings" who were genuinely men of the people, and 
 their worldly successes, universally held to be the natural 
 prize of their efforts and within the reach of all others of 
 their class, aroused no jealousy or hatred among those who 
 expected some day also to strike it rich. 
 
 Previous to 1892 there was not in the Colorado mining 
 districts a laboring class as distinct from the mine owning 
 class. The miners of the early days in Clear Creek, Gilpin 
 and other counties were American citizens who had their 
 full part in patriotic state building. The introduction of 
 large numbers of miners from Missouri and other states 
 who were neither prospectors nor prospective mine owners 
 transformed the conditions of Leadville, Telluride and other 
 districts, while at Cripple Creek, almost from its beginning 
 in 1891, the new conditions rather than the old prevailed. 
 The rapid development of coal mining brought to the state 
 a large number of alien laborers, for those mines were gen- 
 erally owned by large corporations and almost exclusively 
 worked by wage earners who never expected to become any- 
 thing different from what they were. This industrial 
 reorganization of the state tended directly toward political 
 corruption and machine rule ; supplying in the cities and 
 the mining camps the bondsmen and the clansmen of
 
 22 ROBERT WILBUR STEELE 
 
 "gangs," "rings" and "combines" ; while the recently arrived 
 conservative voters brought from other states their partisan 
 alignments upon national issues and were for a time inde- 
 pendent of conditions, needs or dangers in this state. 
 
 The early railroads of Colorado were for the most part 
 built by Colorado men for local needs, and they were oper- 
 ated in conformity with local interests. This was true of 
 the Denver & Rio Grande, the Colorado & Southern, the 
 Colorado Midland, and of other lines which, under various 
 names, appear in the early history of the state. It was not 
 true, of course, of those plains roads that were extensions 
 of eastern systems, like the Union Pacific, the Burlington, 
 the Rock Island and the Santa Fe. The part played by 
 the railroads in the development of Colorado has not been 
 fully understood, but it may be said truthfully that it was 
 mainly due to the local railroads that this state took fore- 
 most place among western communities in its development, 
 and a large share of its prosperity has been the direct result 
 of an intelligent and liberal policy of railroad building and 
 railroad operation. Public appreciation of the services of 
 such state builders as General Palmer, Governor Evans, 
 Colonel Dodge and others was general. There has never 
 been in Colorado any such feeling against the railroads as 
 has been manifest in many other states, and the absence of 
 restrictive railroad legislation was notable here for many 
 years, after other western states had established commissions 
 with regulating and rate making powers. But in the years 
 from 1890 to 1900 Colorado railroads came to be more and 
 more parts of great transcontinental systems and less and 
 less members of the body of Colorado institutions and 
 industries. 
 
 Contrary to the belief in some quarters, the railroads 
 did not play a very important part in politics in the years 
 from 1892 to 1900, but the gradual alienation of those
 
 THE MAKERS OF THE MACHINE 23 
 
 powerful corporations from strictly local attachments and 
 their alignment with the great national systems of transpor- 
 tation and finance had a place in the general movement of 
 industrial reorganization in the state and a considerable 
 effect upon other events. In those years railroad companies 
 seldom committed themselves openly to partisanship, their 
 campaign contributions were allotted for business rather 
 than political reasons, and the demoralization of the pass 
 system, like its benefits, fell impartially upon Democrats, 
 Populists and Republicans. In those years, too, the rail- 
 roads were more often playing the political game in order 
 to secure some advantage over a business rival than com- 
 bining to protect a class interest against the government or 
 the people. In the culminating struggle of 1904-5, however, 
 the railroads played an important part. Their policy was 
 no longer exclusively industrial, for the furtherance of their 
 own proper business interests through the development of 
 mining, agriculture and manufacturing. They became a 
 part of the system of machine politics, engaged locally in 
 an effort to control government for their own advantage, 
 immunity and privilege, and closely linked with the national 
 masters of finance and politics. 
 
 The growth of agriculture in Colorado during this 
 period was of the highest importance, and the agricultural 
 counties were destined to become in later years the conserva- 
 tive and saving forces of the state, both politically and 
 financially. Yet these farmers were then for the most part 
 newcomers, and unfamiliar not only with their social and 
 political circumstances, but also with the conditions of their 
 own industry, upon which their living was dependent. The 
 new settler in the state, whether engaged in solving the 
 problems of dry farming, or learning the practice of irriga- 
 tion, or devoting himself to any one of the many kinds of 
 specialized agriculture and horticulture, was inclined to
 
 24 ROBERT WILBUR STEELE 
 
 leave politics to politicians and the control of state affairs 
 to older residents. 
 
 In the period from 1892 to 1900 extraordinary local 
 events resulted directly in strengthening the machine control 
 of parties, and had a most important bearing upon the events 
 of the following period and upon the issues subsequently 
 brought to judgment in the courts and before the ultimate 
 tribunal of public opinion. It was popular disapproval of 
 the Republican course in congress rather than an endorse- 
 ment of the principles of the Populist platform that gave 
 the vote of the state to Davis H. Waite for Governor in 
 1892, but four years later the bolt of the Silver Republicans 
 was the result of a deliberate purpose and a sincere convic- 
 tion of political duty. Wholly apart from the justice or 
 the wisdom of the cause of silver, the political consequences 
 of the revolt of 1896 were far-reaching. Senator Teller in 
 leaving the Republican party took with him the great major- 
 ity of the leaders and the voters of the formerly dominant 
 party of the state, leaving it in conditions where personal 
 control became natural and necessary, and machine rules 
 and methods were the inevitable consequence. 
 
 In Colorado, as in other states, the rivalry for the places 
 of United States senator, under the old system of legislative 
 election, had a most demoralizing effect upon state politics. 
 In some earlier campaigns the struggle between the partisans 
 of Senator Teller and those of Senator Hill was more 
 earnest than that between Democrats and Republicans. If 
 it had not been for the senatorial prize, it is not probable 
 that Edward O. Wolcott would have undertaken the task 
 of keeping alive the Republican organization in the cam- 
 paign of 1896 and through the subsequent years, and the 
 party rules and customs then established under those 
 peculiar circumstances might not have become the instru- 
 ments bv which the later machine bosses withstood the
 
 THE MAKERS OF THE MACHINE 2^ 
 
 efforts of the majority of the party voters to secure neces- 
 sary reforms. If it had not been for Senator Wolcott, the 
 Republican party would have been obliterated in 1896, not 
 merely for lack of voters, but even more for lack of financial 
 support. It was inevitable that the man who paid the 
 expenses of the party should also be its dictator, and thereby 
 was established the precedent that the head of the organiza- 
 tion should pay the party expenses, write the party platform 
 and choose the party nominees. Supreme crises in national 
 history have brought dictators, whose first thought was to 
 bring the nation through the stress of events regardless of 
 the means employed. Senator Wolcott was a political dic- 
 tator, and he left behind him instruments of autocracy ready 
 for the use of his successors. 
 
 Senator Teller and his associates unquestionably repre- 
 sented the great majority of Colorado Republicans in 1896; 
 Senator Wolcott represented the minority of those that had 
 been accustomed to vote the Republican ticket in this state, 
 and he also represented the interest of the powerful national 
 organization that elected the president in 1896 and again in 
 1900, though in both those years the presidential vote of 
 Colorado was cast for the Democratic candidates, and the 
 Democratic candidates for governor were elected in 1896, 
 1898 and 1900. 
 
 The ballot laws of that time required the use of 
 emblems, and the fight for those tokens of party regularity 
 in the campaigns of 1896 and 1898 resulted in new, more 
 exclusive rules adopted by the Republican organization, 
 which were justified in the opinion of the regulars by the 
 necessity of self-preservation ; while many of the Silver 
 Republicans who would have liked to see their course and 
 policies approved by the Republican organization felt that 
 the regulars were warranted in adopting extraordinary meas- 
 ures to preserve their control of the party. The main sig-
 
 26 ROBERT WILBUR STEELE 
 
 nificance of these events lies in the powerful impetus they 
 gave to the personal control of a partisan organization. 
 Senator Wolcott's personal proprietorship of the Republican 
 party lasted but a few years, but the system then established 
 to maintain the party along the lines approved by the 
 national organization became later not merely the instru- 
 ment by which that party was controlled in opposition to 
 the will of the majority of the party voters, but also the 
 model upon which similar political methods were planned 
 and attempted in the Democratic party. It must be admitted, 
 however, by fair minded observers, that the Democratic 
 state organization never became at any time so subservient 
 to the domination of its self-appointed dictators as was the 
 case with the Republican party. 
 
 At the same time and out of the same conditions, the 
 forces of ultimate reform and regeneration were more 
 slowly developed. The revolt of the Silver Republicans, 
 culminating in the establishment of the short-lived Silver 
 Republican party, gave a tremendous impetus to political 
 independence in this state. Many of the Silver Republicans, 
 after a short period of fusion, allied themselves openly with 
 the Democrats, strengthening and stimulating the progres- 
 sive wing of that party ; others returned to the Republican 
 ranks, and others, possibly a majority of the Silver Repub- 
 licans, increased the number of independent voters who held 
 the balance of power between the parties for many years, 
 swinging the state from one side to the other through a long 
 series of campaigns, insistently urging their demands for 
 reform upon party leaders and public officials, ratifying 
 every measure of progressive legislation presented for their 
 approval, and ultimately consummating the triumph of 
 popular self government, not in or through any one party, 
 but by the force of a persistent and pervasive public opinion. 
 
 Another powerful influence and instrument of machine
 
 THE MAKERS OF THE MACHINE 27 
 
 politics developed in the city of Denver, which, comprising 
 a population of nearly one-third of the entire state, passed 
 through a political development similar to that of other 
 American cities. The great public utility corporations, 
 chartered to supply the city with such necessities of civiliza- 
 tion as water, gas, electricity, telephone and tramway service, 
 seem to have had less than the usual excuse for entering 
 upon political activities, but they very soon became a con- 
 stant source of political corruption and civic demoralization, 
 and extremely dangerous to the public interests. Primarily 
 the corporation activities were local, municipal rather than 
 state-wide, but the railroad companies and the larger coal 
 companies, with the smelting companies and the one great 
 steel company of the state, allied in interests with the Denver 
 public utilities, were drawn into political activity from time 
 to time, to a greater or less extent. Doubtless some of the 
 evil that has been charged against the corporations of Colo- 
 rado was due to the overzeal, the greed, the folly and the 
 blindness of petty officials and agents, who were equally 
 ready to blackmail the corporations or to betray the people, 
 according to which job paid them the best. But the present 
 purpose is not so much to condemn or to condone the political 
 activities of the corporations and their agents as to point 
 out the fact of their interference with the course of politics 
 and government, based upon a policy broadly non-partisan 
 in its scope and having as its purpose the control of the state 
 and city governments by extra-constitutional methods and 
 without regard to the will or the intelligent opinion of the 
 majority of the citizens of the state. 
 
 Coupled with the political activities of the Denver 
 corporations, there must also be reckoned the existence of 
 a Denver political machine, which in the efficiency of its 
 work, as well as in its flagrant disregard of law, order and 
 justice, fully deserves the appellation, Tammany, commonly
 
 28 ROBERT WILBUR STEELE 
 
 applied to it. There are few worse frauds recorded in the 
 history of American politics than those of the Denver bosses 
 and heelers who established the "Big Mitt" as a term of 
 local infamy. Working usually under the Democratic name, 
 this machine was much wider than the party. It rarely hesi- 
 tated to sacrifice party interests as well as public welfare to 
 the dictates of personal greed and ambition, and it ultimately 
 became an effective instrument to be used by its bosses and 
 their employers regardless of party principles or even of 
 party advantage. The purpose of its existence was to con- 
 trol government regardless of the will of the people. 
 
 Outside of Denver similar political evils existed to a 
 lesser degree. In Pueblo the rule of a partisan Republican 
 machine was prolonged for a time against the will of the 
 majority of the voters by bare-faced fraud. In the counties 
 of Huerfano and Las Animas the rottenness of political 
 conditions has been notorious for many years, with both 
 parties profiting by the disregard of law and neither party 
 bold enough to put a stop to the customary violation of the 
 principles of American free government. In Conejos and 
 Costilla counties the results of elections have depended upon 
 the convenience of a bi-partisan machine rather than upon 
 the opinions of the voters, and too often Conejos and Cos- 
 tilla have determined the results, both in state conventions 
 and in state elections. 
 
 An endless list of minor factors might be introduced 
 into the problem, but enough has been said to establish the 
 point that the conditions confronting the people of the state 
 at the beginning of the twentieth century involved something 
 more than a simple choice between two political parties. 
 They were not simply the consequences of the great fight 
 over Silver's Lost Cause. They were something more than 
 the nation-wide protest against corporation interferences in 
 politics and government. They involved much more than
 
 THE MAKERS OF THE MACHINE 29 
 
 the activities of the alleged Socialistic Western Federation 
 of Miners and a mine owners' association that claimed to be 
 engaged in a life or death struggle for the rights of property. 
 
 In the ultimate analysis a single purpose animated all 
 these obnoxious activities. The "regular" politician, striv- 
 ing to maintain his organization intact against the will of 
 the majority of the party voters; the Tammany election 
 thief and ballot box stuffer ; the political corporation official, 
 attorney or agent ; the bribing lobbyist and the bribed legis- 
 lator ; the demagogue who by turns baited the corporations 
 and hired himself secretly to their underhanded purposes; 
 the dynamiter by whomsoever employed, and the advocate of 
 lynch law, whether openly before the mob in the street or 
 with fallacious argument in the courts of the state — all 
 these and many more sought but a single purpose, which 
 was to substitute something else in place of the government 
 according to the freely expressed will of the majority, as 
 established by the founders of the American republic. They 
 sought to control the party as a means to control the govern- 
 ment. The petty leader of a factional gang; the boss of a 
 political machine ; the usurper of state authority not freely 
 granted by the people's will, were successive steps in the 
 evolution of machine government. Under a specious plea 
 of personal advantage, partisan need or public necessity, 
 the makers of the machine sought, in one way or another, 
 and to a greater or less degree, to impugn and to impair 
 those primitive principles of human liberty which, older by 
 far than the constitution of the state of Colorado or the 
 constitution of the United States, mark the foundation of 
 the entire structure of free government for all peoples in 
 all times. 
 
 The greatest service that a judge of the highest court 
 of the state could have rendered to its people in this 
 troublous period was to see the relation between present
 
 30 ROBERT WILBUR STEELE 
 
 complicated events and the fundamental principles of liberty 
 and justice, and amid all the intense bitterness and the 
 disturbing clamor of such an era of strife, to hold clearly 
 before the public eye those safeguards of free government 
 for whose violation no stress of the moment can be a suffi- 
 cient warrant. 
 
 Because of his position in the state as well as because 
 of his personal character, his powers of logic and discern- 
 ment, and the fearlessness of a patriotic and conscientious 
 mind. Judge Steele was able to render this service more 
 efficiently than any other man of his time ; and therein lies 
 both the measure of his service to the people and the state, 
 and his claim to grateful remembrance after the animosities, 
 the dissensions and the turmoil of the recent struggle shall 
 have passed away.
 
 CHAPTER III 
 
 IN LIFE'S MORNING 
 
 Robert Wilbur Steele was born at Lebanon, Warren 
 County, Ohio, November 14, 1857. ^^ ^^^ ^^^ second of 
 five children, three of whom — himself and two younger 
 sisters — lived to maturity, while an elder sister and a 
 younger brother died at an early age. 
 
 Some men take pleasure in advertising their ancestry, 
 seemingly hoping to divert attention from their own lack 
 of merit by exalting the virtues of their forefathers. Judge 
 Steele, in later years, was accustomed to emphasize the 
 American principle that it is what a man is and what a 
 man does that really count in this world. Yet if there is 
 any truth in the theory of heredity — and few will deny that 
 it is at least one of the elements that go to influence, if not 
 to determine, character — the parents of Robert W. Steele 
 might have based a confident expectation of a useful and 
 honorable life for him upon their knowledge of the char- 
 acter, the attainments and the public services of members 
 both of his father's and his mother's families. 
 
 He was the son of Dr. Henry King Steele and Mary 
 Frances Dunlavy Steele. His father's parents were Dr. 
 John Steele and Cornelia King Steele, the descendants of 
 pioneer settlers of Ohio and Kentucky. Born in Dayton, 
 Ohio, April 1, 1825, Dr. Henry Steele was educated at 
 Center College, Danville, Kentucky, and won his degree of 
 medicine and surgery at the University of New York. At 
 the age of 32, when his son, Robert, was born. Dr. Steele 
 was building up his practice in the town of Dayton and 
 rapidly winning a place for himself as a physician and a 
 man in that community.
 
 32 ROBERT WILBUR STEELE 
 
 Dr. Henry Steele's father was Dr. John Steele, a prom- 
 inent physician of Dayton, who came to that town in 1812 
 from Kentucky, where his father, Robert Steele, had been 
 one of the founders of Transsylvania College at Lexington. 
 (See genealogical note below.) 
 
 Chief Justice Robert W. Steele of Colorado was not, 
 however, named in remembrance of his great-grandfather 
 of Kentucky, but for another Robert W. Steele, who was 
 the son of Judge James Steele and the nephew of Dr. John 
 Steele, and who was for many years prominent in the affairs 
 of Dayton as a patriot, scholar, author and philanthropist. 
 Having studied to fit himself for the practice of the law, 
 this elder Robert W. Steele, upon the threshold of an active 
 and successful career, was forbidden by his physician to 
 continue his studies. "\^ery well," he is reported to have 
 replied ; "if I cannot do my work in the world as I have 
 
 GENEALOGY OF ROBERT WILBUR STEELE 
 I 
 
 Robert Wilbur Steele; born November 14, 1857; died October 12, 
 1910. 
 
 II 
 
 Dr. Henry King Steele, 1825-1893 ; married Mary Frances Dunlavy, 
 1831 . 
 
 Ill 
 
 Dr. John Steele, 1791-1854; married Cornelia King, 1803-1879. 
 John C. Dunlavy, 1796-1834; married Katherine Latham, 1800-1876. 
 
 IV 
 
 Robert Steele, 1738-1801; married Agnes Coulter, 1814. 
 
 Henry King, 1765-1837; married Charlotte Morrell, 1767-1816. 
 Francis Dunlavy, 1761-1839; married Mary Carpenter, 1764-1828. , 
 Latham; married Anna Carmichael. 
 
 Robert Steele (IV) was the son of Andrew Steele of Rock- 
 bridge County, Virginia. Agnes Coulter was the daughter of James 
 Coulter, also of Rockbridge County. 
 
 Henry King (IV) was the son of Frederick (1738-1796) and 
 
 Mary (Ayers) (1762 ) King; Frederick King was the son of 
 
 Constant (1712-1783) and Phoebe (Horton) (1715-1787) King; 
 Constant was the son of Captain John King.
 
 IN life's morning 33 
 
 planned, I will help others to do theirs." The Robert W. 
 Steele high school building in Dayton, occupied since 1892, 
 is a monument of his service to that city and its people. 
 
 Mary Frances Dunlavy Steele was the daughter of 
 John C. Dunlavy and the granddaughter of that Francis 
 Dunlavy who was president judge of the First Circuit Court 
 of Ohio and the first judge appointed to office in that state. 
 She was a native of Lebanon, where her father died while 
 she was a young girl, and where she lived until her marriage 
 to Dr. Henry K. Steele. 
 
 Shortly after Robert's birth his mother returned to her 
 home in Dayton, and his earliest years were spent in that 
 place, which was then, as it is now, one of the most pleasant 
 towns of southwestern Ohio. The time was that of the 
 troublesome period immediately preceding the great Civil 
 War, and the problems of national policy and national 
 organization that already divided the sections and threatened 
 to destroy the structure of the Union were pressing hard 
 for settlement. No one was more vitally concerned in the 
 questions then under discussion, and soon after fought to 
 a tragic conclusion, than the people of the border states. 
 The shadow of a great conflict already lay over the lives 
 of all the nation, and especially of those men and women 
 whose ties of family, friendship and business extended 
 across the political boundaries fixed by mountain and river 
 between the North and the South. 
 
 It is an interesting fact that the children of the war 
 time, including those born immediately before that period 
 of strife and hatred, as well as those born during those 
 terrible years, seem to have inherited, or to have breathed 
 in from their surroundings in their earliest days, more than 
 the common hatred of war and more than the common toler- 
 ance of opposing political opinions, coupled with the belief 
 that human differences of politics, philosophy and religion
 
 34 ROBERT WILBUR STEELE 
 
 are capable of peaceable and honorable adjustment. There 
 are not many stories of those early years, but no woman 
 who experienced at that time what war really meant failed 
 to offer her prayers that the nation might forever be spared 
 another such visitation of wrath ; and no boy, growing up 
 amid the sorrows, the sacrifices, and the tremendous emo- 
 tional intensities of such a period, could have failed to 
 receive, upon the one hand, a baptism of patriotism, and 
 upon the other a lasting impression of the horror and the 
 folly of war. Such early influences, though received at a 
 time when the child is too young to have a conscious knowl- 
 edge of political events, or to preserve definite memories 
 for future years, often have a profound effect in the deter- 
 mination of character, and doubtless some traits of the 
 future chief justice of Colorado might be traced to war 
 times in Ohio. True it is that prominent among his char- 
 acteristics was a warm and eager patriotism, ready at all 
 times to make the welfare of the nation and the state the 
 primary test and measure of every political act, and true 
 it is also that the arbitrament of the sword and the course 
 of violence never found encouragement from the acts, the 
 counsel or the judicial decisions of Robert W. Steele. 
 
 The time came, as it came in all the homes of the land, 
 south as well as north, when the father and the husband 
 had to decide which should come first in the line of duty, 
 the nation or the home. Doctor Steele made his decision 
 and offered his life and his professional knowledge and skill 
 to the Union. As surgeon of the Forty-fourth Ohio infantry 
 and later of the Eighth Ohio cavalry. Dr. Henry Steele 
 served his country with the same loyalty and fidelity with 
 which his father, Dr. John Steele, had cared for the sick 
 and wounded in Dayton's military hospital in the war of 
 1812.
 
 IN life's morning 35 
 
 During most of the war time Robert Steele lived in 
 Dayton. A part of the time he was in Lebanon, and a part 
 in Hamilton, and twice he went for short periods across the 
 river into Kentucky, where Doctor Steele was stationed for 
 his work as an army surgeon. 
 
 It was in Dayton that Robert had his tirst experience 
 in school, and it was in Dayton, too, that he made his first 
 effort in the business world, an incident characteristic of 
 the boy that was "father of the man." Robert, so the family 
 story runs, like other boys of his acquaintance, wished to 
 sell upon the streets the papers containing the latest war 
 news, and, getting a number of copies fresh from the press, 
 was soon at work. After a time he came home, happy and 
 successful. His pleasing manner and personal charm had 
 won the notice and approval even of strangers, and he 
 poured his accumulated store of pennies into his grand- 
 mother's lap, and never cared to ask for them again. It 
 was doing a work in the world, acceptably and successfully, 
 that delighted him, and not the money he gained thereby. 
 
 Also characteristic of him in this period was the favor 
 with which he was regarded by all his relatives. He was 
 a boy whom everyone liked, and in the frequent changes 
 that came into his life in the early years he possibly acquired, 
 much sooner than most children, the ability to meet new 
 people and to make friends easily. 
 
 Another story is illustrative of a different kind of 
 influence and another line of thought. A great fire among 
 the wooden buildings seemed to threaten the entire town 
 with destruction. Terrified by the roar of the fire, the glare 
 that lighted the sky and the brands that fell far ahead of 
 the leaping flames, Robert rushed into the house, crying to 
 his grandmother: "Come quick! Get down on your knees 
 any pray that the fire may be stopped, or we shall all be 
 burned up !" Such childish faith and zeal had an immediate
 
 36 ROBERT WILBUR STEELE 
 
 reward, for the grandmother complied with his request, 
 though the ultimate result remains unrecorded. 
 
 It was in the Dayton period, too, in the years following 
 the war, that Robert showed very clearly his fondness for 
 political affairs, a characteristic that became one of the 
 controlling elements of his career. At an age when most 
 boys find their chief delight in the noisy sports of the play- 
 ground, or in such amusements as the circus or the more 
 modern moving picture show, Robert Steele took to politics. 
 Like other boys, he was attracted by the noise and the color 
 that marked the campaigns immediately following the war, 
 the bands and the gaudy uniforms and the torchlight pro- 
 cessions and the stump speeches, but he had further a sincere 
 interest in the political questions involved and the public 
 interests that were at stake in these discussions. The reason- 
 ableness of his thought may be illustrated by a single inci- 
 dent. He was usually an obedient child, but once, after 
 having forbidden Robert's attendance at a political meeting, 
 his father was surprised to find him sitting in the front row 
 and listening with marked attention to the arguments of the 
 speaker. After they had returned home his father said to 
 him : "Robert, didn't I tell you you shouldn't go to that 
 meeting^" "Yes, father," was the logical reply; "but I 
 thought there was no harm in my going where you did." 
 
 In a recent letter, Mr. Charles J. McKee of Dayton 
 gives an interesting reminiscence of those early years : 
 
 "As a student Bob held a good record, but never, to my knowl- 
 edge, excelled in a high degree. I believe he was alwa3's indus- 
 trious and conscientious in his work. He even at that age differed 
 from most of us in being a steady reader of newspapers, and I can" 
 remember that at times when we would ask him to join us on some 
 excursion of sport we would have to wait until he could finish his 
 perusal of the news of the day. This was a marked characteristic 
 in him, and I can say that he had a far better knowledge of what 
 was going on than any of us, and this extended into public affairs 
 and matters of politics with which we as boys had absolutely no 
 concern, but which seemed to interest him in more than an ordinary
 
 IN LIFE S MORNING 37 
 
 degree. He was not dependent on his fellows especially in matters 
 of judgment or opinion and often went his own way alone." 
 
 Although he was not afflicted with sickness other than 
 the ordinary illnesses and ailments of childhood, Robert 
 Steele was not a robust boy, and for a time his father, 
 watching him with the careful eye of a skilled physician, 
 was anxious about him. Like other veterans of the war, 
 Doctor Steele had returned to his home to find his practice 
 gone and the necessity before him of opening new ways of 
 business. For some years he remained in his old home in 
 Dayton, but in 1870, for business reasons and even more 
 because of what the New West of that time had to offer 
 for his son in the way of better health and future oppor- 
 tunities, he resolved to come to Denver, and arrived in this 
 city in the late summer of that year. His family, consisting 
 of his wife, son and two daughters,* followed two months 
 later, coming by way of the newly completed Kansas Pacific 
 Railroad from Kansas City. Colorado has been good to 
 many newcomers, but very few of them have had their faith 
 and hope in this state better rewarded than Doctor Steele 
 and his son. 
 
 The year 1870 is generally recognized as marking the 
 transition from the old to the new in Colorado. In that 
 year, on June 15, the first track of a railroad was laid into 
 Denver, and on the 24th of the same month, the coming of 
 th*^ first locomotive, via the Denver Pacific from Cheyenne, 
 was properly celebrated in connection with the formal 
 driving of the last spike. On August 15, 1870, the second 
 railroad, the Kansas Pacific, completed its line to Denver. 
 In the same year the first gas plant was constructed, and 
 the first system of domestic water supply, outside of the 
 primitive wells, was established. Small wonder, amid so 
 
 ♦Harriet D. Steele, married to John C. Murray; Mary F. Steele, 
 married to William M. Spalding.
 
 38 ROBERT WILBUR STEELE 
 
 many evidences of substantial progress, that the growing 
 community dropped the pretentious title of Denver City 
 and thereafter faced the world upon the solid foundation 
 of real accomplishments as Denver. The federal census of 
 that year marked the population of Denver at all of 4,759' 
 and proved to be the same disappointment to its inhabitants 
 that all subsequent census counts have been, but the people 
 quickly consoled themselves for their disappointment with 
 the complacent assurance that before the end of that year 
 enough new people had come to town to make its population 
 fully 5,000. 
 
 From this same year of 1870 also dates the beginning 
 of the real and general development of the resources of 
 Colorado. The territory had been organized in 1861, but 
 it was not until May, 1870, that the arrival in Denver of 
 the advance guard of the Greeley colonists signalized the 
 start of the agricultural development of the state. Colorado 
 Springs and Loveland were founded in the following year. 
 
 The fact that Doctor Steele and his son Robert, then 
 a boy of 13, came to Colorado at this particular time is 
 recorded as something more than a mere coincidence of 
 events, for the period was one of unusual opportunities and 
 influences. The year distinctly marked the passing of the 
 era of the pioneers, and the beginning of the era of develop- 
 ment. Doctor Steele and his young son were typical of two 
 important classes of state builders, the one of the men of 
 ripe experiences and mature powers, who laid the founda- 
 tions of the new state with the wisdom gained in older 
 commonwealths, and fixed the institutions and the sentiments 
 of the new community in close bonds of sympathy with the 
 great federal union; the other of the younger generation, 
 born east of the great river, but coming to the mountain 
 state young enough to be thoroughly western in spirit and 
 becoming themselves the first fruits of a truly western edu-
 
 IN life's morning 39 
 
 cation and developing a genuine and distinctive western 
 patriotism and ideals. Not until many years later did the 
 generation of Colorado's native sons come to have a primary 
 influence in the affairs of the state, but it may be truly said 
 that of the many children who have accompanied their 
 parents inward across the Colorado boundaries, none has 
 been more truly a child of Colorado, loyal, patriotic, 
 intensely devoted not merely to her material welfare, but 
 also to the establishment and maintenance of high ideals of 
 citizenship and civilization, than Robert W. Steele. 
 
 Of the many influences that wrought toward the shap- 
 ing of the character of the boy, and later of the man, none 
 was more important than the father, whose care for the 
 physical well-being of his son was responsible for the trans- 
 planting of the youth to the West. Doctor Steele was a 
 man of extraordinary personality and ability, and his quali- 
 ties quickly found recognition in the rapidly growing com- 
 munity of Denver. In a memoir that was read before the 
 Denver and Arapahoe Medical Society shortly after Doctor 
 Steele's death. Dr. Henry Sewall, who knew him well, thus 
 describes him : 
 
 "Arriving here in 1870, when Denver had just reached the legal 
 age of manhood and six years before the territory of Colorado had 
 matured into statehood, he was truly a pioneer in all that pertained 
 to the upbuilding of the city and the state. So well was his ability 
 appreciated by the laity that he was able after seventeen years to 
 retire from active practice in comparative affluence. We who knew 
 him personally, therefore, gave to him freely that respect which is 
 only granted to one who has left the present strife with all his 
 powers intact. For many years his personal appearance was more 
 venerable than his age would warrant. The fringe of fine, white 
 hair about a massive head; the keen but kindly eye, rarely without 
 its twinkle of humor; the direct and honest look, all at once won the 
 confidence of the stranger and led the mere acquaintance to seek to 
 become a friend. No phrase so well depicts our conception of Dr. 
 Steele's make-up as 'old-fashioned.' His disposition was peculiarly 
 child-like. Sober reflection was his mental habit, but he was saved 
 from melancholy by a humor which lightened every passing event. 
 His extreme modesty would have resulted in vacillation and timidity 
 in one less fully endowed with moral and physical courage, and was
 
 40 ROBERT WILBUR STEELE 
 
 one of his old-fashioned charms which covered a reserve power that 
 was only disclosed now and then as emergencies requiring decisive 
 action arose." 
 
 In 1879 Doctor Steele was appointed a member of the 
 State Board of Health, and in 1891, when the same board, 
 which had been allowed to drop out of existence, was 
 re-established by Governor Routt, Doctor Steele was reap- 
 pointed to its membership. Soon after his arrival in this 
 state, he organized the Colorado Medical Society, in 1871, 
 and in 1875 he was its president. Beginning in 1877 he 
 served for a number of years as the first dean of the medical 
 department of the University of Denver, and his name 
 appeared upon its faculty roll as professor of the principles 
 and practices of surgery and clinical surgery. 
 
 Undoubtedly Doctor Steele's most important public 
 service was as health commissioner of the city of Denver. 
 He was first appointed to that position by Mayor Piatt 
 Rogers in 1891, and continued to occupy it until his death 
 in 1893. No better measure of his good work in this office 
 can be had than the statistics of the death rate for the city. 
 In the year preceding his appointment the deaths had been 
 23.7 per thousand, largely as a consequence of bad water 
 supply and other unsanitary conditions. In the first year 
 of Doctor Steele's work as health commissioner the death 
 rate fell to 18.6 per thousand, and in the second year there 
 was a further decrease to 14.27 per thousand. For his 
 services in this office Doctor Steele steadfastly refused to 
 accept any pay, and gave his time and effort freely for the 
 city's good. 
 
 At the time of his death, which occurred January 20, 
 1893, Doctor Steele was greatly interested in the problem 
 of caring for sufferers from contagious diseases, some of 
 whom had died and many of whom had been woefully 
 neglected as a consequence of inadequate facilities for their
 
 IN life's morning 41 
 
 proper treatment. He had urged the city authorities to 
 build a permanent hospital for the care of such cases, and 
 at the time of his death it had been completed according to 
 his plans and was ready for occupancy. Fitly named the 
 Steele Memorial Hospital, the building stands today as a 
 permanent token of the public appreciation of the services 
 he gave to the city and of the universal respect and esteem 
 with which he was regarded. 
 
 The following resolution was unanimously adopted by 
 the Board of Supervisors of the City Council of Denver 
 February 20, 1893, and by the Board of Aldermen February 
 9, 1893, and was approved by the Mayor February 21, 1893: 
 
 Whereas, The late Dr. H. K. Steele was chief officer of the 
 Health Department of the city and gave freely and without charge 
 his efficient service in organizing and placing the Health Depart- 
 ment in its present efficient condition; 
 
 Therefore, Be it resolved by the City Council of the City of 
 Denver, That the hospital heretofore established by the Board of 
 Health on the northeast corner of Seventh avenue West and Evans 
 street for the purpose of an isolation hospital, be and the same is 
 hereby named the Steele Memorial Hospital, and shall be so styled 
 in all official documents upon and after the passage of this resolution. 
 
 Whatever else may have been the boasts of the budding 
 metropolis of the West, Denver could not claim distinction 
 in 1870 because of the excellence of its school system. It 
 was not until seven years later that the first high school 
 class in Colorado was graduated, and of that class Robert 
 Wilbur Steele was an honored member. 
 
 Some of the activities of the intervening years are 
 worthy of special mention. Robert Steele had not been 
 many years in Denver before he began to earn money for 
 himself. One of his earliest jobs was at the Union Bank, 
 where he swept out the office and made himself generally 
 useful. He also acted for a time as collector for Doctor 
 Williams, who was associated in professional work with 
 Doctor Steele, and from the age of thirteen he earned all 
 his own spending money.
 
 42 ROBERT WILBUR STEELE 
 
 To this period also belongs another set of experiences 
 which were destined to have an important bearing upon his 
 future ability and success. Soon after Doctor Steele's arrival 
 in Colorado, some cousins of his bought a ranch in the east- 
 ern part of the San Luis Valley, near Villa Grove, and 
 there for several years Robert spent his summer vacations. 
 The outdoor life and exercise were of incalculable value to 
 him. He rode horseback, he drove cattle, he fished and 
 hunted, he did all that a boy may do in the country in the 
 summer time, and, above all, he absorbed immeasurable 
 quantities of bright Colorado sunshine and breathed without 
 limit the pure air of the Colorado mountains, until kindly 
 Nature had more than redeemed the promises that had 
 attracted the anxious father to this state. From those boy- 
 hood experiences he first gained that love of Colorado 
 scenery and of the free life of outdoors, the life of the ranch 
 and the camp, which was characteristic of him through all 
 his remaining life. In those experiences he laid the founda- 
 tions of sound health which enabled him in later years to 
 carry the burdens of an exacting profession and to win the 
 highest measure of success in his life's work. 
 
 In high school Robert Steele was not what might be 
 called a thorough student. His father wisely discouraged 
 any such devotion to books as might be prejudicial to health, 
 and it was understood by his teachers that he was not to 
 be crowded in his school work. The high school was first 
 organized in the fall of 1874 for a three years' course, by 
 Professor Aaron Gove. The principal for the first year 
 was a Professor Freeman, and for the other two years 
 Professor James H. Baker, later president of the Colorado 
 State University. Many teachers participated in the instruc- 
 tion of the class of '77, but among them all none had a 
 greater influence, as a teacher and as an individual, than 
 Miss Nannie O. Smith, who later became Mrs. D. C. Dodge.
 
 IN LIFE S MORNING 43 
 
 In later years Judge Steele often spoke in highest terms of 
 her work as teacher, and gratefully acknowledged the 
 inspiration and help he had received from her counsel and 
 instruction. Another loving teacher was Miss Overton, 
 who later married Mr. J. S. Brown. There were seven 
 students that graduated in this class, the number including, 
 besides Robert Steele, Mrs. Mary Peabody Dickerson, Mrs. 
 Seraphine Eppstein Pisko, Mrs. Flora L. Bishop Stevens, 
 Mortimer Arnold, General Irving Hale and Frank S. 
 Woodbury. 
 
 Robert Steele is best remembered by his classmates of 
 the old Arapahoe street high school for the charm of his 
 personality and for his ability as a speaker. He had all 
 the qualifications for a great orator except self-assertion, 
 says one of his schoolmates, and some of his declamations 
 are even yet clearly remembered. Even then his sense of 
 justice was remarkable, and it is said of him that his per- 
 ception of right and wrong was more prompt and more 
 infallible than that of any of those with whom he was 
 associated. 
 
 The test of oratorical ability in that time and place 
 was the Woodbury prize, established by R. W. Woodbury, 
 founder of the Denver Times and father of Frank Wood- 
 bury of the class of '77. The third Woodbury contest, held 
 June 14, 1876, was won by Robert Steele, who declaimed 
 Webster's famous oration in reply to Hayne. Upon another 
 occasion when Robert Steele was a speaker in a contest. 
 Doctor Steele, who was a member of the school board, was 
 one of the judges, and had to cast the deciding vote for or 
 against his son. Robert lost the medal, but one of the other 
 judges was so pleased with his effort that he gave a special 
 prize to Robert. Many years after, it is pleasing to record, 
 under somewhat similar circumstances. Justice Robert 
 Steele of the Supreme Court bestowed a special prize upon
 
 44 ROBERT WILBUR STEELE 
 
 the granddaughter of that favorable member of the school 
 board. 
 
 A classmate of the high school tells the following story 
 illustrative of a boy's mischievous logic : "A circus parade 
 was passing the high school and the pupils were craning 
 their necks to look out the window. Professor Baker, think- 
 ing to suppress this, suggested sarcastically that Steele could 
 see better if he would go to the window. Steele thanked the 
 professor cordially, went to the window, and saw the whole 
 parade." 
 
 Although not a close student, Robert Steele at this 
 time began to show more than a common fondness for books, 
 and while yet in the high school began the collection of a 
 personal library which later served as the source of learning 
 and culture as well as a favorite occupation for his leisure 
 hours. History, of the United States and especially of the 
 West; political biography, and volumes upon the theory 
 of government and the sources and development of law, 
 were the classes of books he liked most. He was not oblivi- 
 ous to fiction and poetry, but his choice in those lines was 
 for the best masters of literature, and he read them for 
 mental pleasure and refreshment rather than for stimulation 
 and development. 
 
 His improving health and growing fondness for out- 
 door life was evidenced in that period by his membership 
 in a semi-professional ball team, the only uniformed club 
 in Denver, known as the Brown Stockings. His position 
 was that of left fielder, in which he distinguished himself 
 honorably and often successfully in encounters with similar 
 teams from Cheyenne and other cities. 
 
 Chief of the characteristics of these school days, how- 
 ever, was his interest in politics, which was coupled with 
 that facility of making friends which is at once the prime 
 need and the unmistakable mark of the political leader of
 
 Dr. Henry King Steele
 
 IN life's morning 45 
 
 men. Sincerely democratic in his thought and attitude 
 toward others, affable to all of whatever rank or station, 
 just in his judgments yet always willing to find an excuse 
 for the weak or misguided, he had all the dangerous 
 weapons of the demagogue, yet without any of the dema- 
 gogue's disposition to use them wrongfully. He was inter- 
 ested, though not so profoundly as in later years, in the 
 fundamental principles and problems of government; he 
 had a lively and active interest in men as men; and he was 
 also interested in the practical problems of political organi- 
 zation and in the results that may be accomplished by the 
 union and co-ordination of individuals in political parties. 
 He was "in politics" many years before casting his first 
 vote, and he not only had an inside knov/ledge of what was 
 going on, but his opinions and his suggestions began to 
 receive consideration at an age when most boys are getting 
 their ideas of politics from the civil government text books 
 of the high school. 
 
 Robert Steele's oration, delivered upon the occasion of 
 his graduation from high school, is still preserved. Its 
 subject was "Red Tape," and persons then present now 
 recall the effect produced by its delivery. A few sentences 
 here quoted will serve to give some idea of his mental devel- 
 opment at that time and of his processes of thought: 
 
 "System is the perfection of all law. * * * While we 
 humbly bow to the irrevocable laws of God and submit with cheer- 
 ful obedience as lawful subjects of His power, we are not prepared 
 to say that all human laws are for the best and should not be 
 changed or violated. Our advancement in science, our progress in 
 knowledge, the intellectual development of the age demand a change 
 in many things, and what we think are facts and theories firm and 
 unchangeable may be entirely subverted as the light of science is 
 reflected upon them. * * * The manner of conducting the busi- 
 ness of the government of the United States is belittling to states- 
 manship, discreditable to all parties and injurious to all politics; 
 for the officialism of our government, besides being stupid and 
 habitually slow, is corrupt. * * * Let us instruct our Congress- 
 men, then, to aid him [President Hayes] in his noble work of reform
 
 46 ROBERT WILBUR STEELE 
 
 and in their halls consecrated to the Union to 'perform a solemn 
 lustration.' Let them wash the slime of partyism and corruption 
 from their hands. Let them dissolve all party ties and free the 
 country from the poisonous sting of ring hirelings; and, finally, let 
 them close forever the approaches to internal feuds, and on their 
 altars, in the presence of that image of the Father of His Countr}'^ 
 that looks down upon them, swear to preserve honorable peace with 
 all the world and eternal brotherhood with each other." 
 
 In choosing the legal profession for his life's work 
 Robert Steele was following both his natural inclination and 
 the logic of circumstances. Heredity might have led him 
 either toward medicine or the law, but he lacked the robust 
 physique necessary to success as a practising physician and 
 surgeon. His temper of mind and his taste in reading 
 pointed directly toward legal study. His ability as a speaker 
 was another important qualification, and, most of all, his 
 inclination toward politics and his capability for public life, 
 as evidenced by his extraordinary power of winning the 
 approval and confidence of those with whom he came in 
 contact, inclined him toward the profession that is in 
 America the most usual avenue toward preferment and 
 success in public life. There must have been some mani- 
 festation of this preference previous to his graduation from 
 high school, since it is remembered that Judge E. T. Wells 
 had already expressed to Doctor Steele a willingness to 
 receive Robert as a student in his office. A short time later 
 Judge Wells resigned his position on the bench and resumed 
 his practice, and Robert Steele began the usual course of 
 reading to prepare himself for admission to the bar. At 
 that time the firm of Wells, Smith & Macon was recognized 
 as one of the leaders of the Colorado bar. Judge Wells 
 having as his partners Edmond L. Smith and Thomas 
 Macon. 
 
 The first taste of legal lore was evidently pleasing to 
 the student, for the following year he entered the law school 
 of Columbian University (now the George Washington
 
 IN LIFE S MORNING 47 
 
 University) of Washington, D. C. Before the end of his 
 second year in the East, however, it was thought advisable, 
 on account of that unfavorable climate, that lie should 
 return to Colorado. A simple story is told of his residence 
 in Washington which is thoroughly characteristic of the 
 humanity and unselfishness of his nature. His boarding 
 place in that city was far from perfection, but it was con- 
 ducted by a widow who was having a hard time to make 
 a living for herself and her children. And Robert Steele 
 put up with the delinquencies and discomforts of her board 
 and lodging rather than add to the burden she was carrying. 
 
 Returning to Colorado in 1879, he entered again the 
 law office of Wells, Smith & Macon, and devoted himself 
 to his study with such attention that in 1881 he was admitted 
 to the bar. One who knew him in that stage of his career 
 many years later thus expressed his memories :* 
 
 "I recall his studious habits and modest demeanor and 
 became much attached to him because he was an uncommon 
 young man, always a gentleman — such as a correct under- 
 standing of that word always implies — and always striving 
 to perfect himself in that science, law, which is most exact- 
 ing of old and )^oung members of the bar. That for which, 
 perhaps, Judge Steele has been most noticeable was judicial 
 courage and integrity; painstaking, unprejudiced investiga- 
 tion of all questions before the court ; always profoundly 
 impressed with the great duties imposed upon a judge of 
 our highest court. Political eminence and professional fame 
 disappear within a short time, like the mists of the morning. 
 Nothing of character is permanent but virtue and profes- 
 sional worth. Those remain." 
 
 No young attorney of Denver ever entered the open 
 door of his chosen profession with brighter prospects than 
 Robert W. Steele. He had, as has been shown, very many 
 
 *Judge D. P. Wilson.
 
 48 ROBERT WILBUR STEELE 
 
 of the qualifications of a brilliant and successful lawyer and 
 politician. He was a most charming and effective speaker, 
 his circle of friends and acquaintances included practically 
 everyone worth knowing in the Denver of that time, and 
 many of the most prominent and most influential men of 
 the city felt a double interest in his welfare, for his father's 
 sake as well as for his own. But the service that Robert 
 Steele was to render to the state and its people was not to 
 be that of the attorney in civil or criminal cases. A wider 
 and higher mission was in store for him, and a kindly fate, 
 blocking the path of progress in the natural line of his pro- 
 fession, led him by a longer way through the experiences 
 necessary to his development and brought him ultimately to 
 the position that he was destined to occupy. 
 
 To some of his friends, who believed that they knew 
 what was best for the young attorney and who hoped to 
 see him rise rapidly as well as highly in his profession, it 
 was a distinct disappointment when, in 1881, soon after his 
 admission to the bar, he received and accepted an appoint- 
 ment, by the Board of County Commissioners, as clerk of 
 the County Court of Arapahoe County, of which Denver 
 was then the county seat. The somewhat monotonous duties 
 of this clerical position mainly occupied his attention for 
 three uneventful years. During this time he continued his 
 reading of law, history and general literature, he displayed 
 an active interest in public affairs, and he never ceased to 
 concern himself in those political activities that are at once 
 the implements of statecraft and the instruments of govern- 
 ment. 
 
 In 1884 he resigned his position as clerk of the County 
 Court in order to engage in the practice of his profession.
 
 CHAPTER IV 
 
 THE BUILDERS 
 
 Every intelligent citizen of the New West in America 
 is more or less consciously a Builder. The charms of the 
 wilderness and of the frontier have always operated to draw 
 bold and adventurous spirits toward the untrodden parts of 
 the earth and have been among the strongest influences for 
 the extension of civilization and the subduing of the conti- 
 nents to the uses of man. But the nineteenth century 
 brought to the men of western America a fresh and a higher 
 civic conscience, a stimulating sentiment of responsibility 
 for laying the foundations of politics and industry upon 
 which was to be erected the structure of the commonwealth 
 of the future. The great inventions of the age made it 
 possible to forward development at a rate never before 
 known, and at the same time they impressed each successive 
 step of that development upon the minds of the people. The 
 states and nations of Europe were evolved by centuries of 
 unconscious and often purposeless grov/th ; the states of 
 western America were built by decades of strenuous effort, 
 consciously directed toward those ideals of "progress and 
 prosperity" that were the purpose of "Booster" activity 
 everywhere. 
 
 At no other time and in no other place was this con- 
 sciousness of civic duty more keenly felt than in Colorado 
 in the last quarter of the nineteenth century. The young 
 man who came to maturity in Denver at that time could 
 not fail to be impressed with the material advantages of 
 the state, its superior climate, its wealth of natural resources 
 and their even more marvelous variety, and to share in the 
 conviction, which possessed the thought of the entire com-
 
 50 ROBERT WILBUR STEELE 
 
 munity, that Colorado is destined to extraordinary accom- 
 plishments in mining, in manufacturing, in agriculture, in 
 commerce and in all the activities of a highly energized, 
 intelligent, prosperous and progressive state of the American 
 Union. 
 
 To such a young man as Robert Steele, the descendant 
 of the successful pioneers of older and vanished frontiers, 
 the opportunities of the New West spoke with paramount 
 force. He saw clearly the opportunity to win for himself, 
 in the manner of employment to which he was best adapted, 
 those personal results that seem desirable to every intelli- 
 gent human being — home, family and fortune ; he saw the 
 opportunity to achieve, in his chosen career, unhampered by 
 the restrictions of an older civilization, those honorable 
 rewards of sincere and successful effort that are the highest 
 prizes of republican citizenship; he saw the opportunity, 
 higher than personal fortune, greater than personal fame, 
 to have a part in securing the happiness and well-being of 
 future generations and to make himself inseparably a por- 
 tion of the heritage of liberty — an opportunity that the state 
 builders of Colorado were preparing to hand down to their 
 children and grandchildren. 
 
 Modest as he was, with an inherited aversion to self- 
 assertion or self-display, and with a characteristic distrust 
 of his own personal merit and ability, there is no ground 
 for the belief that Robert Steele had any prevision of the 
 height to which he would ultimately reach in the regard of 
 his fellow citizens and in the service he would render to the 
 state. But there is no doubt whatever of his loyalty to 
 Colorado, of his sincere conviction of her surpassing merits 
 as a place of residence, or of his intelligent appreciation of 
 the material opportunities for business and professional 
 activities; and it is even more certain that very early in his 
 career he fixed, as the supreme goal of his life-purpose, the
 
 THE BUILDERS 5I 
 
 welfare of the people rather than any personal gain of 
 wealth, position or fame for himself. 
 
 Already an independent m.oney earner by his own choice 
 since early school days, he now set himself resolutely to the 
 task of establishing his position in the world, to the primary 
 duties of manhood and of citizenship. 
 
 Throughout his high-school days Robert Steele had 
 maintained a reputation of indifference toward the other sex. 
 He had passed his hours of leisure in the circles of politics 
 rather than in those of society, and had preferred the amuse- 
 ments and pleasures of the open field to those of the parlor 
 and ballroom. In the summer of 1883 he became engaged 
 to Miss Anna B. Truax, daughter of Perry B. Truax, of 
 Toledo, Ohio, who was at that time visiting relatives in 
 Denver. Their marriage followed on February 28, 1884, 
 at Toledo. Originally a "love match," marriage brought 
 to them neither disillusion nor bitterness. The young bride 
 was most cordially welcomed to the circle of relatives and 
 friends in Denver, and home life for Robert Steele began 
 under favorable auspices which the future nowise disproved. 
 
 Two sons, Henry and William, and a daughter, 
 Frances Edwina, died in early childhood, while another 
 son, Robert, born in 1891, and a daughter, Jane, are now 
 living in Denver. 
 
 The routine of clerical duties in the County Court, 
 however faithfully performed, failed to satisfy Robert Steele 
 long after his marriage. In the fall of 1884 he resigned 
 that position, and, forming a partnership with William H. 
 Malone, under the firm name of Steele & Malone, he entered 
 upon the practice of law. The first office of the firm was in 
 the Tabor Opera House, at that time easily the finest busi- 
 ness block of the Rocky Mountain region, but the office was 
 later removed to the Jacobson Building, and still later to 
 the Beckwith Building, on the north side of Champa street.
 
 52 ROBERT WILBUR STEELE 
 
 between Sixteenth and Seventeenth streets. For a number 
 of years the Beckwith Building was owned by the firm and 
 was occupied by it for office purposes until Robert Steele 
 was removed from private law practice by his election to the 
 position of district attorney. 
 
 The new firm was rapidly successful and soon came to 
 be regarded as ranking high among the younger attorneys 
 of the city and the state. One of the earliest of its cases 
 involved important property rights in both water and land 
 at Sloan's Lake, near Denver. The case was won by Steele 
 & Malone upon the first decision, but upon a rehearing the 
 decision was reversed. Possibly as a result of the effort 
 devoted to this case and the interest it aroused, the firm soon 
 came to give special attention to land cases. This interest 
 was further intensified in the second year of his practice 
 (1885), when Robert Steele received the appointment as 
 land attorney for Colorado for the Atchison, Topeka & 
 Santa Fe Railroad Company. 
 
 The Santa Fe railroad had crossed the Colorado boun- 
 dary in 1873, its terminus being for a time at the town of 
 Grenada, Colo. In 1875 it was extended to La Junta, appro- 
 priately christened as the junction point of the Colorado 
 branch with the main line extending westward through New 
 Mexico. Continuing up the Arkansas Valley, the Colorado 
 division reached Pueblo February 26, 1876, and the exten- 
 sion northward from Pueblo to Denver was completed in 
 1887. The town of Rocky Ford had been founded in 1871 
 by George W. Swink, for many years one of the leading 
 men of the Arkansas Valley and a successful pioneer in the 
 development of that region. There had been already some 
 agriculture under irrigation at Garden City, Kansas, seventy 
 miles east of the Colorado line, and in 1886 the conditions 
 seemed favorable for a rapid growth in wealth and popula- 
 tion of the Arkansas Valley in Colorado from the Kansas 
 boundary to the mountains, at Canon City.
 
 THE BUILDERS 53 
 
 As land attorney for the railroad company, Robert 
 Steele was in close touch with the enterprises started or 
 planned in that region, and in 1886, when it was judged 
 advisable to establish a new town in the valley between 
 Garden City and Rocky Ford, he was named as one of the 
 incorporators, the others being J. E. Frost of Topeka, Kans., 
 I. R. Holmes of Garden City, J. E. Godding of Lamar and 
 William Malone of Denver. The name of the town was 
 chosen by Robert Steele, and in honoring the then secretary 
 of the interior, Hon. J. Q. C. Lamar, the shrewd attorney 
 was not overlooking the fact that, besides choosing a good 
 and euphonious name for the town, he was getting in line 
 for some first-class advertising. The town company was 
 organized with Col. A. S. Johnson as president and was very 
 promptly successful. By an article appearing in The Prairie 
 Farmer in May, 1886, and written by Orange Judd, we are 
 informed : 
 
 "Only five short weeks ago there was not a sign of human 
 habitation in sight save a single log building down by the cotton- 
 wood belt that fringes the stream. From the river southward a 
 desert-looking plain, partly covered by the short buffalo grass, 
 extended up a gentle incline two or three miles. The land was 
 mainly open to pre-emption and homesteading. Today there are 
 five and twenty buildings completed or nearly so; many others are 
 begun and active preparations are making to erect a large number 
 more. Tens of thousands of dollars' worth of lots have been sold, 
 $400 to $600 and upwards being paid for a plat with a twenty-five 
 foot frontage on the principal street. * * * The land on all 
 sides is held at a premium of $500 to $1,000 per quarter section, 
 which the owners 'filed upon' within a month. Twenty-five foot 
 lots in town are jumping up a hundred dollars a day. * * * 
 There is no question as to the substantial value of property in that 
 new Colorado wonder. It lies in the heart of a good country, far 
 enough from any other large city and having all the advantages to 
 make it great. It will be a second Garden City, and this is the 
 judgment of business men who have visited this part of the country. 
 He who owns property in Lamar has 'old wheat in the mill.' " 
 
 The progress of a quarter of a century has justified the 
 expectations of the founders of Lamar. Thanks to its cen-
 
 54 ROBERT WILBUR STEELE 
 
 tral location, the energy of its friends and possibly to the 
 benevolence of the high official whose name it bore, Lamar 
 promptly became the seat of the United States land office 
 for the lower Arkansas Valley in Colorado. In April, 1889, 
 by act of the general assembly it was established as the 
 county seat of the new county of Prowers, and has continued 
 ever since its development as one of the best and most 
 uniformly prosperous agricultural towns of Colorado. 
 
 The active interest of Robert Steele was not, however, 
 confined to Lamar. Some of the best land opportunities of 
 the valley were found to exist in the western part of old 
 Bent County, which was established as Otero County with 
 the county seat at La Junta, in the same year that Prowers 
 County was created, and the firm of Steele & Malone became 
 one of the large land owners in the vicinity of Rocky Ford. 
 
 In 1885 Robert Steele had bought the lots at the south- 
 west corner of Eleventh avenue (then known as Deer street) 
 and Washington street, in Denver, and promptly began the 
 building of a residence. At that time the site chosen was 
 well outside the city, and even while the carpenters were at 
 work the cowboys were herding cattle in the vicinity. Yet 
 so rapid was the growth of the city that when the house was 
 completed, in 1886, the street car ran as far as that corner, 
 and the city water and gas services were ready for the use 
 of its occupants. This quick reward for foresight and good 
 business judgment came to one who had steadily professed 
 and maintained his faith in the future of Denver. His 
 father. Doctor Steele, promptly after his arrival had linked 
 his fortunes with the welfare of the city. The old Steele 
 residence, at the eastern corner of Sixteenth and Stout streets, 
 stood for many years in the heart of the residence district 
 of Denver. That dwelling gave place in 1882 to a two- 
 story business block, to which a third story was subsequently 
 added, and this later structure still holds its place in the
 
 THE BUILDERS $$ 
 
 heart of the business section of modern Denver. Robert 
 Steele fully approved his father's views as to the future 
 growth and stability of Denver's real estate values, and 
 strongly expressed his convictions regarding the political 
 and commercial capital of so rich and so extensive a terri- 
 tory. At a later time, when the opportunity came, as agent 
 for his father, to dispose of that property, he gave further 
 proof of the sincerity of his opinions by using his influence 
 to retain its ownership, in spite of the unfavorable conditions 
 then existing — a judgment fully justified by subsequent 
 events. 
 
 In 1888 Robert Steele's growing familiarity with the 
 legal side of the land business brought to him one of those 
 exceptional opportunities that sometimes arise in the newer 
 states. In order to promote the construction of the trans- 
 continental railroads, congress had made very liberal land 
 grants to the companies, giving them alternate sections of 
 land for a considerable distance on both sides of their tracks. 
 Although this land was then a part of the wilderness and 
 much of it lay within the borders of the so-called "Great 
 American desert," it rapidly became of great value and 
 finally far surpassed the entire cost of building those rail- 
 roads. These lands were, for the most part, offered by the 
 railroad companies without delay at reasonable prices to 
 settlers, and quickly passed into individual ownership. If, 
 however, at the time these grants were made, any portion of 
 these lands was in the actual and lawful possession of indi- 
 vidual owners, it did not, of course, pass to the railroad 
 companies ; and in the important Dunmire case the Supreme 
 Court of the United States decided that where such tracts 
 had once been entered upon and claimed by settlers, who had 
 subsequently abandoned or relinquished them, the land 
 grant companies were not entitled to them. As a result of 
 this decision, a cloud was thrown upon the title to much
 
 56 ROBERT WILBUR STEELE 
 
 property in the land grant states, and the work of the land 
 lawyers was greatly increased, both before and after con- 
 gress enacted a law giving validity to the title conferred by 
 the companies upon genuine and bona fide purchasers. 
 
 There were some lands in the vicinity of Denver that 
 belonged in the class that was not conveyed by congressional 
 grant to the Union Pacific Railroad Company on account of 
 having been previously subjected to individual appropria- 
 tion, although they had been abandoned. Upon one of these 
 lots of land, consisting of 160 acres, the southeast quarter 
 of section 17, township 4 south of range 67 west of the Sixth 
 principal meridian, Robert Steele made his filing according 
 to the land laws and established his residence thereon with 
 the required improvements. For the time fixed by the law 
 this was his home, genuinely and in good faith, and, 
 although he maintained his office and law business in Den- 
 ver, he carried forward the improvement and cultivation of 
 the ranch, gaining benefit to his health not only from the 
 manual work he v/as able to perform, but also from the daily 
 trips between the ranch and the town. At the time his ranch 
 cabin was built, there was no building within a distance of 
 a mile and a half, and the prairie sod was still unturned. 
 In July, 1892, when the officials of the Denver land office 
 were notified by the land commissioner at Washington that 
 the homestead entry of Robert W. Steele had been finally 
 approved for patent, this land was "conservatively esti- 
 mated," according to a current newspaper article of that 
 time, to be worth $100,000. It extends southward from the 
 line of Exposition street to the line of Mississippi street and 
 westward from Fairmount Cemetery, and seems destined to 
 become a part of the fully occupied residence district of the 
 city. Another tract of land, even nearer the city and even 
 more valuable, was secured by one of Robert Steele's asso- 
 ciates. Along the eastern side of the Steele ranch extends
 
 THE BUILDERS 57 
 
 Hyde Park avenue, another mark of his tracing, for he 
 opened this roadway freely and without compulsioo a.« a 
 matter of convenience for his neighbors. 
 
 The members of the firm of Steele & Malone soon 
 came to be regarded as experts in land law practice and their 
 business increased rapidly. Many of the settlers upon the 
 railroad grant lands required their services in clearing the 
 cloud that had been cast upon their titles by the Dunmire 
 decision, and this business necessitated frequent trips to the 
 general land office at Washington. The esteem in which 
 Attorney Steele was held at this time by men high in the 
 federal government is indicated by the story told of a certain 
 United States senator who introduced Robert Steele and a 
 lawyer of another firm who was associated with him in a 
 particular case to the land commissioner with these words : 
 "Mr. Commissioner, whatever these young men tell you as 
 a fact, you may depend upon as absolutely true." The 
 advantage of such a recommendation from such a source in 
 such a quarter is shown by the fact that in this case a patent 
 was issued within thirty minutes of the time the final proof 
 was presented. And the land office is popularly supposed to 
 be one of the most leisurely branches of the government. 
 
 In the fall of 1890, Robert Steele was elected chairman 
 of the Republican central committee of Arapahoe County. 
 The frequent statements made by him to personal friends 
 and political associates make it certain that he did not choose 
 the path of politics as the open highway of wealth or per- 
 sonal advancement. For seven years he had taken no promi- 
 nent part in political aifairs and had devoted himself strictly 
 to his home and his business. But he could not suppress 
 either his interest in political questions or his liking for 
 political activities. As early as 1884 he was involved in a 
 small controversy regarding some statement said to have 
 been made by Senator N. P. Hill concerning the appoint-
 
 58 ROBERT WILBUR STEELE 
 
 ment of a Colorado postmaster, but from the time of his 
 retirement from the position of clerk of the county court his 
 effort was to keep out of politics rather than to engage in 
 such activity. In 1890, however, he yielded to the persua- 
 sion of his friends and assumed the leadership of his party 
 for Arapahoe County. He was the acknowledged choice of 
 the regular Republican county organization for chairman, 
 but factional feeling in that year ran so high that there had 
 been a bolting convention and a rival county chairman had 
 been appointed. The first act of the campaign in the fall 
 of 1891 was a letter addressed by Chairman Steele to Chair- 
 man Theodore H. Thomas, of what were known as the 
 Turner Hall Republicans, proposing a compromise upon the 
 basis of the disbanding of the Turner Hall organization, the 
 holding of precinct primaries to choose delegates to the 
 Republican county convention, the election at the primaries 
 of an entire county central committee, and representation of 
 the minority faction by judges at the primary polls. This 
 proposition being approved as eminently fair, reasonable and 
 conciliatory, it was promptly accepted by Chairman Thomas 
 and was ratified in due course by the Turner Hall committee 
 and by the Republican county committee at its meeting held 
 September 19, 1891. Chairman Steele then stated the pur- 
 pose of his proposition to the committee as follows : 
 
 "It is not necessary for me to rehearse to 30U the differences 
 which arose in the party last fall and which resulted disastrously 
 to the party. For the purpose of harmonizing all the differences, 
 and for the good of the party, your chairman two weeks ago 
 addressed to the chairman of the opposition a letter in which he 
 promised several things. He promised that precinct primaries be 
 held in each precinct in the county; that at such primaries there be 
 elected a member of the county central committee and that that 
 committee be requested at its first meeting after such elections to 
 select a chairman ; they to serve the party for one j^ear. 
 
 "It was for the purpose of healing the differences in the party 
 and in order that we might rebuke the opposition which has gained 
 considerable power in the count}- through the existence of these 
 differences. It was for the purpose of harmonizing the party before
 
 THE BUILDERS 59 
 
 the coming of a national campaign in which it might be that Mr. 
 Blaine should decide to be the candidate, and it might be the wish 
 of the Republicans of this state that he receive their vote for the 
 highest office in the gift of the Republican party." 
 
 The precinct primaries were held according to agree- 
 ment on September 24, and resulted in the choice of dele- 
 gates to the county convention who were unquestionably the 
 selection of the Republicans of the county. The county 
 convention was held on September 26, and Chairman Robert 
 Steele opened its proceedings with these words : 
 
 "Gentlemen of the Convention: 
 
 "It has been the one endeavor of your county central committee 
 to provide honest, fair and decent primaries in the precincts of this 
 cotinty. We believe that we have done so, and we believe that you 
 came from Republican neighborhoods of this county to express the 
 will of the Republicans in convention. If you nominate a good, 
 clean ticket at this convention, there is no doubt about its election 
 in November." 
 
 The name of Robert Steele had been mentioned on the 
 eve of the convention as a possible candidate for the office 
 of district attorney, but he was not the leading candidate. 
 So general, however, was the approval of his success in 
 restoring party harmony that, after he had been nominated 
 by R. D. Thompson and his nomination had been seconded 
 by W. H. Griffith, before the completion of the first ballot 
 all opposition was withdrawn and he was chosen by accla- 
 mation. 
 
 So far in his political acts and opinions Robert Steele 
 had been a Republican partisan. But it is interesting to 
 note that in this, his first campaign for an elective office, the 
 issues were not drawn upon strictly partisan lines. The 
 wise, conciliatory and successful move toward party har- 
 mony, which won him the nomination, involved distinctly 
 that principle of popular self-rule in politics and in govern- 
 ment which was to play so important a part in the contro- 
 versies of later years ; so while he was the regular candidate
 
 60 ROBERT WILBUR STEELE 
 
 of the regular party organization he was, to a degree 
 unusual for that day, the popular candidate rather than the 
 machine candidate. 
 
 In the campaign that followed his nomination he took 
 an active part, making speeches in such remote country 
 towns as Highlands, Harmon and Colfax, all now included 
 within the city limits of Denver. He was regarded as the 
 candidate of the "law and order" part of the community, 
 while the Democratic candidate was attacked and defended 
 as the candidate of the "liberal element" ; thus injecting 
 another non-partisan issue into the campaign. Additional 
 evidence of the growing spirit of revolt against narrow 
 partisanship was given, a few days after his nomination, 
 by the Republican state platform, adopted at Glenwood 
 Springs, which declared in its opening sentences: "While 
 not agreeing with the president upon questions of the coin- 
 age of silver, we recognize his great ability and heartily 
 endorse the administration as being pure, upright and 
 honest." 
 
 In the election of that year the entire Republican ticket, 
 headed by Hon. Joseph C. Helm for judge of the Supreme 
 Court, was successful, and Robert W. Steele was elected 
 district attorney by a majority that compared well with 
 those given to other candidates upon his ticket and that was 
 the more gratifying because of the unfair and unwarranted 
 personal attack made upon him by some of the elements 
 opposed to his election. 
 
 An interesting fact in connection with this election of 
 1891 is that it was the first at which the new Australian 
 ballot was used according to the law passed by the legis- 
 lature in 1889. Previous to that time the tickets of the 
 several parties had been printed upon separate ballots, with 
 opportunities for fraud in ballot-box stuffing and in count- 
 ing that were successfully blocked by the Australian ballot.
 
 THE BUILDERS 6l 
 
 The law of 1889 is justly regarded as the initial step in a 
 long series of political reform legislation, which culminated 
 with the adoption of the initiative and referendum and the 
 recall by a vote of the people in the elections of 1910 and 
 1912. 
 
 For the next three years the time and effort of District 
 Attorney Steele were devoted strictly and almost entirely to 
 the public service. While his business partnership was 
 continued on account of the extensive investments that had 
 been undertaken by the firm, his idea of public duty would 
 not permit him to continue the practice of his profession 
 outside of his duties as public prosecutor, or even to give to 
 his personal business that attention which it imperatively 
 required. 
 
 As a result of the change in the law at the beginning 
 of his term the cost of maintaining the district attorney's 
 office was greatly reduced, and a large part of the receipts 
 were turned back by him into the county treasury. His 
 first annual report, which was filed with the secretary of 
 state January 11, 1893, shows a balance turned over to the 
 county treasurer of $2,719.27, and an even better showing 
 was made in subsequent years. The professional showing 
 was even better than the financial. In a review of his career 
 as district attorney, published in the Denver Times upon 
 the completion of his work in that office, it was stated : 
 
 "Mr. Steele has made an excellent district attorney, and has 
 filled the office with honesty, fidelity and ability. His assistants and 
 deputies were wisely chosen. He was a prosecutor and not a per- 
 secutor." 
 
 The Denver Republican a few days earlier had 
 declared : 
 
 "As district attorney of the count\' during the past three years, 
 and as clerk of the Probate Court from 1880 to 1884, Mr. Steele has 
 made an official record in every way creditable to himself and 
 beneficial to the public, and it may be accepted as a foregone con-
 
 62 ROBERT WILBUR STEELE 
 
 elusion that he will win new laurels in the office of county and 
 probate judge. He is honest, honorable, fit and industrious, and the 
 Republican takes great pleasure in congratulating both him and the 
 community upon his elevation to the bench." 
 
 Even the liberal element, so called, that had opposed 
 Robert Steele's election as district attorney, readily admitted 
 that they had no just cause of complaint. He gave them, 
 as one of their number said, "a square deal." He was, as 
 the Times expressed it, "a prosecutor and not a persecutor." 
 He enforced the law, but he never made out of the law an 
 instrument to serve any unworthy purpose, partisan or per- 
 sonal. No suspicion of graft or extortion was ever directed 
 against the office of district attorney during his term, and 
 the only serious charge ever brought against him was that 
 he performed his official duties too well. In December, 
 1892, a newspaper article appeared, in which "a large num- 
 ber of attorneys" were quoted as expressing their indigna- 
 tion at the employment of professional jurors in criminal 
 cases, and blaming District Attorney Steele for this condi- 
 tion. His answer to this accusation is too clever as a piece 
 of controversial writing, and too interesting as a contribu- 
 tion to local history, to be omitted from these pages : 
 
 "I am called to answer the charge that the jurors in attendance 
 upon the West Side Criminal Court are professional jurors, and 
 that 'it is almost impossible to secure the acquittal of a defendant 
 in that court by reason of their bias or prejudice against criminals 
 in general.' 
 
 "I wish to say that the district attorney does not want an\' 
 professional jurors, that it is a notorious fact that the state always 
 suffers from professional jurors, and it is always the desire of the 
 prosecution to secure the very best men in the community to serve 
 as jurors; and it is always the great and first purpose of criminal 
 lawyers to excuse from juries the men who have property to be 
 protected, and the men who are interested in the enforcement of 
 law. 
 
 "The judges of the District Court will bear me out in the 
 statement that the present panel of jurors is as good, and composed 
 of as reputable citizens, as any ever impaneled in this county, and 
 that since the law of 1891 went into effect the juries in the Criminal 
 Court have been exceptionally good.
 
 THE BUILDERS 63 
 
 "On the present panel of about fifty jurors there are, as I am 
 informed by the clerk, only four who have served on any jury since 
 September, 1891, and the great majority of them have never before 
 served on any jury in this county. On the jury by which Hugh 
 Carlin was found guilty there was only one man who had before 
 served on a jury, and the defendant having ten challenges, could 
 have secured a jury composed of men who had not before this term 
 served on any jury in this county. 
 
 "To say that the present panel of jurors in the Criminal Divi- 
 sion of the District Court is composed of professional jurors is a 
 gross misrepresentation, and is doing great injustice to the many 
 gentlemen who are neglecting their business to serve on that jury. 
 
 "I am willing to concede the charge that it is almost impossible 
 to secure the acquittal of a defendant in the District Court, but I 
 do not attribute the conviction of defendants to the bias or prejudice 
 of the jurors against crime, or because of any desire to secure the 
 approval of the district attorney, but to the fact that the defendants, 
 with very rare exceptions, are guilty, and the cases are tried almost 
 immediately after the crimes are committed, while the proofs are 
 fresh in the minds of the witnesses. 
 
 "While I am personally acquainted with but four or five of the 
 present panel, I do not doubt that these jurors are prejudiced to a 
 certain extent against criminals — all good citizens are prejudiced 
 against criminals — and it is, and should be, the aim of a public 
 prosecutor to secure a jury composed of men who are not in sym- 
 pathy with criminals, and I know the present panel of jurors in the 
 District Court is not in sympathy with crime or the criminal 
 classes. * * * 
 
 "The public prosecutor must always expect to be abused by 
 that class of criminal lawyers that grow up and are fostered and 
 maintained in large cities. I do not mean lawyers who appear 
 occasionally in the courts to defend criminals, but I mean that class 
 to whom no client entrusts any civil business and who haunt the 
 jails and the justices' courts to get business and who are willing to 
 take desperate criminal cases upon contingent fees, with the hope of 
 obtaining an acquittal or a mistrial by misrepresentation and petti- 
 fogging. 
 
 "These are the lawyers who are most aggrieved at the results 
 tha*^ have been secured during the present term of court, and I am 
 exceedingly gratified that I am not called upon to apologize for 
 many acquittals and few convictions, and the public will, I know, 
 be gratified that an honest and fearless jury in attendance on the 
 District Court have acted upon the maxim of that great statesman 
 and soldier, 'Let no guilty man escape.' " 
 
 It was while Robert Steele was engaged in a service to 
 which he devoted his entire thought and effort that the 
 state of Colorado was suddenly assailed by a financial and 
 industrial tempest such as few communities have experi-
 
 64 ROBERT WILBUR STEELE 
 
 enced. Up to the year 1893 Colorado was par excellence 
 the "Silver State." It was not merely that silver was her 
 principal product, nor even that this was the one thing she 
 produced that had a fixed value and an open market at all 
 times. The entire structure of business and industry in 
 Colorado was built upon the foundation of silver, and an 
 insecurity of that metal in its position as one of the two 
 fundamental money standards of the world was a disturb- 
 ance and a threat to every dollar of property, to every part 
 of business and to every individual of the population of 
 the state. 
 
 For various reasons — some industrial, some political, 
 and many of them world-wide in their extent — the price of 
 silver declined in seventeen months previous to June, 1893, 
 from $1.00 to 83 cents. In that month the world was 
 startled by the news that the mints of India, hitherto one 
 of the principal outlets for the product of the silver mines, 
 had been closed to further coinage of that metal. By June 
 30 the price of silver had declined to 62 cents an ounce. 
 On June 29, at a meeting of the managers of the smelters 
 and many of the larger mines of the state, it had been 
 resolved to close down until conditions became better. On 
 July 17 came a crash among the banks of Denver, the 
 effects of which were not relieved until after all but three 
 had suspended or failed. This disaster to the banks was 
 but a single manifestation of almost universal wreck in 
 business and financial circles. Employment ceased sud- 
 denly for thousands ; material property of all kinds became 
 practically valueless in exchange for ready cash ; in hun- 
 dreds of cases the savings of a lifetime were swept away 
 in a moment; business men who had enjoyed and deserved 
 the highest measure of credit were unable to meet their 
 obligations, and the most promising investments shrunk in 
 value until they were transformed into a crushing weight
 
 THE BUILDERS 65 
 
 upon those that had assumed an obligation of future pay- 
 ments. 
 
 The investments of Steele & Malone were not exempt 
 from the universal disaster. For two years Robert Steele 
 had ceased his connection with the legal business of the 
 firm, but he was still concerned in the land investments that 
 had been made in the Arkansas Valley, in Denver and else- 
 where. As a result of nearly ten years of hard work, 
 coupled with much more than ordinary business sagacity 
 and good judgment, and with opportunities of exceptional 
 promise, he had gained what had seemed to be the assurance 
 of a moderate fortune. Under any except most extraor- 
 dinary conditions, these investments could not be considered 
 speculative in their nature, for they were based upon an 
 intimate knowledge of values and conditions, and they had 
 already demonstrated the excellent judgment with which 
 they had been planned and placed. Almost in a day, 
 through no fault of his own, and almost without his knowl- 
 edge, these accumulations and favorable prospects were 
 swept out of existence, and in their place Robert Steele 
 found himself under a load of obligations that taxed to the 
 utmost his courage and his strength through the remaining 
 years. Under similar circumstances, other men of undoubted 
 honor and of unquestioned integrity have thought it no 
 disgrace to evade the responsibility for such indebtedness. 
 Robert Steele matched his life to a higher standard. In the 
 dark days of 1893 he wrote for the relief of others a bank- 
 ruptcy law that gained high repute for its mingled mercy 
 and justice, but for himself he claimed no clemency. Men 
 saw and respected the quality of his character and the 
 integrity of his purpose and gladly accorded to him the one 
 thing he asked — the time to meet their claims. Only those 
 most intimately in his confidence knew the burden he car- 
 ried through the years, or how much strength and time that
 
 66 ROBERT WILBUR STEELE 
 
 might well have been devoted to better things went toward 
 the discharge of that indebtedness. For nearly twenty years 
 Robert Steele faced his task and performed his duty, and, 
 when the end came, he went to the great hereafter a free 
 man, having discharged not only every personal debt, but 
 also every one that had been assumed by him as a result of 
 business entanglement or association with other men. 
 
 Such a record is rare, and it deserves permanent 
 inscription all the more in the case of one whose high 
 achievements in other lines might possibly warrant popular 
 indulgence toward personal carelessness in business affairs 
 or a disregard of the highest standards of financial integrity.
 
 CHAPTER V 
 
 THE TRIBUNAL OF THE PEOPLE 
 
 In Colorado, as in other states whose court system is 
 planned along similar lines, the County Court is, more than 
 any other, the Court of the Common People, From the 
 settlement of petty quarrels it is relieved by the justices' 
 courts, and in the cities the police magistrates assume juris- 
 diction in cases involving infractions of municipal ordi- 
 nances and the numerous matters belonging to the daily 
 duties of the police. The district courts, on the other side, 
 take the responsibility for all the more serious criminal 
 offenses and for those civil cases where the larger rights and 
 interests of corporations and wealthy individuals are con- 
 cerned. The County Court is the court of the middle classes, 
 and it is especially the court through which the state admin- 
 isters its duties and asserts its authority upon the common 
 people. It is the court of the widow and the orphan. It 
 deals with the administration of estates ; it is charged with 
 the protection of minor heirs; it grants the great majority 
 of divorces ; it has the duty of safeguarding the interests of 
 individuals and of society in cases of insanity ; and it was 
 entrusted with the responsibility of dealing with juvenile 
 offenders until the development of that portion of its work 
 resulted in the establishment of a distinct court for that 
 particular purpose. 
 
 In January, 1895, the position of judge of the County 
 Court of Arapahoe County was about to become vacant as 
 a result of the election of Judge O. E. LeFevre to the 
 District bench, and the board of county commissioners 
 appointed to the place Robert W. Steele, whose term of 
 office as district attorney had not yet expired. He brought
 
 68 ROBERT WILBUR STEELE 
 
 to this position the intelligence gained by his work as public 
 prosecutor, his knowledge of the causes of crime, his con- 
 viction that the criminal is himself often the victim of 
 circumstances and conditions over which he has no control, 
 and his understanding that the suffering that is the inevi- 
 table result of wrongdoing must always fall far more 
 heavily upon the innocent than upon the guilty. 
 
 To the superficial view, the work and duty of the 
 county judge and those of the district attorney might seem 
 to be diametrically opposed. The one is the representative 
 of the terror of the law, the nemesis of the criminal ; the 
 other finds his duty in the most paternal branch of the 
 government and represents society's rapidly enlarging con- 
 viction that the innocent ought not to suffer for the guilty, 
 and that the strongest of human institutions, the State, has 
 a duty to perform toward the weak and the unfortunate. 
 There is no doubt that Robert Steele's experience as district 
 attorney had an important part in his work as county judge, 
 and there is no doubt that his v/ork in the people's tribunal, 
 the County Court, had a most important bearing upon his 
 ideas, his opinions and his position in the higher court to 
 which he was later called. 
 
 Robert Steele, it should be remembered, was truly a 
 man of the people ; not in the sense of being a representa- 
 tive of the lower classes of society, to whom demagogues 
 sometimes seem to ascribe an exclusive right of citizenship, 
 but in the sense that he was the outgrowth and product of 
 a community in which the distinction of classes had not yet 
 become established. In such a town as Denver was in the 
 closing years of the nineteenth century there was no democ- 
 racy as distinguished from aristocracy. Socially and politi- 
 cally Robert Steele acknowledged no one as his superior; 
 he looked down upon no one as an inferior. His birth, his 
 associations, his education, his early experiences in business.
 
 THE TRIBUNAL OF THE PEOPLE 69 
 
 in politics, in public service and in the practice of his pro- 
 fession had made him as good as the best among his asso- 
 ciates ; but none of these things had developed in him any 
 of that sense of self-assumed superiority which is too often 
 inseparable from a successful career. If as the public 
 prosecutor he had come to feel himself distinctly aligned 
 with the forces of law and order and opposed to the disin- 
 tegrating and reactionary elements of human society, his 
 work as judge of the County Court very quickly brought 
 him into touch and harmony with the spirit of the people, 
 and gave to him an understanding of the needs, the limita- 
 tions, the rights, the troubles, the temptations, the struggles, 
 the sufferings, the aspirations and the ideals of the average 
 man, of the average woman, of the child of the people, 
 which was intensified and illuminated by his own experi- 
 ences of financial reverses and of well planned ventures 
 wrecked through no fault of his own. 
 
 It is not true that every judge of the County Court 
 gains from his experiences what Judge Robert Steele 
 obtained there. But it is true that his work as probate judge 
 for the widows and orphans, his services in connection with 
 divorces, naturalizations and commitments in insanity, his 
 enforcement of the laws against the inhumane treatment of 
 animals and children, and his care and consideration for 
 the boys and girls that came under his authority in cases 
 of juvenile delinquency had a most important part in the 
 development of his mind and character, in preparing him 
 for the high duties subsequently laid upon him, and in 
 assuring to him that place in the confidence and the affec- 
 tion of the people of the city and the state which it was his 
 good fortune never to lose. 
 
 While events in Robert Steele's professional career 
 were thus shaping themselves in such a way as to make 
 him independent of class interests and to qualify him for
 
 70 ROBERT WILBUR STEELE 
 
 service as the judge of all the people, other events along 
 political lines were combining to rid him of the bonds of 
 narrow partisanship and to make him particularly the repre- 
 sentative, and in a measure the precursor of a new era of 
 political thought and practice. 
 
 When Davis H. Waite was nominated for governor of 
 Colorado by the Populist party in 1892, the possibility of 
 his success was as far from the thought of anyone, even 
 among his own supporters, as is the expectation of the elec- 
 tion of Eugene Y. Debs as president from the minds of 
 those who regularly present him as a candidate for that 
 high office. But Waite represented opposition to things as 
 they were, and the progress of political events in connection 
 with silver and other current issues suddenly drew to his 
 support thousands of men whose sole impulse was to strike 
 blindly against forces that were crushing them. His elec- 
 tion as governor in that year is but another proof of the 
 severity of the tempest that was disturbing the foundations 
 of all the establishments of society, business, politics and 
 government. 
 
 Waite represented more than opposition. Fanatic, 
 bigoted, impractical as he was, he had distinguished, in 
 common with others of his class in that day, some of the 
 elements of social and political evil ; he had sought earnestly 
 for the solution of pressing problems ; he had found a 
 beginning of the way of progress upon which the men of 
 today walk in the full light of a new era. He realized that 
 the very foundations of popular self-government were 
 endangered by the development of special privilege and by 
 a rapidly growing interference, in politics and government, 
 with that rule according to the will of the majority of the 
 people, which is the vital essence of the American republic. 
 Declaring in Scriptural quotation that it were better that 
 blood should flow to the horses' bridles than that the funda-
 
 THE TRIBUNAL OF THE PEOPLE 71 
 
 mental principles of this government should be overthrown, 
 Davis H. Waite found himself the opportune target for a 
 shower of misrepresentation, cheap witticisms and contumely 
 which persisted throughout his life and from which his 
 memory has never been cleared. The failure of his admin- 
 istration, with its successions of disorders, turmoils and 
 incompetencies, brought the Republican restoration of Gov- 
 ernor Mclntire, who was loudly heralded as the "redeemer" 
 of the state from Populist misrule and folly, but whose 
 administration, outside of its demonstration of his unfitness 
 for that high position, only served to fix more firmly in the 
 minds of the people the unreasonableness and the dangers 
 of the machine system by which the Republican organiza- 
 tion was dominated and directed. 
 
 Governor Mclntire was inaugurated in the same month 
 (January, 1895) in which Robert Steele was appointed as 
 county judge. In that month also Edward O. Wolcott, for 
 the last time, was commissioned by the people of Colorado 
 to sit as their representative in the senate of the United 
 States. The senior senator at that time was Henry M. 
 Teller, who among all of Colorado's public men reached 
 the highest position in the regard of his fellow citizens and 
 in honor among the statesmen of the nation. Originally a 
 Democrat, he had joined the Republican party very early 
 in its history, and from 1876, when the state of Colorado 
 was created, he held the position of United States senator 
 until 1903, except for the three years from 1882 to 1885, 
 when he was secretary of the interior under President 
 Arthur. A man of unblemished personal character, of high 
 intelligence, and possessing the confidence and approval of 
 the people of his state to an extraordinary degree, Senator 
 Teller was a true and worthy representative of Colorado in 
 the high council of the nation. At an early stage in the 
 development of the silver controversy, he recognized its
 
 72 ROBERT WILBUR STEELE 
 
 importance to the nation and to his state and gave to its 
 consideration such a thorough study as perhaps no other 
 man of his times was able or willing to give. 
 
 The rehabilitation of Colorado industry, progressively 
 accomplished since the dark days of 1893, brought no 
 change in the opinions of the people of the state with regard 
 to the rights and the importance of the silver question, which 
 was easily the central and paramount political issue, so far 
 as Colorado people were concerned, of the presidential cam- 
 paign of 1896. The election of Mclntire as governor in 
 1894 and the election of Wolcott to the senate in January, 
 1895, were victories for the Republican machine, while 
 Teller and the delegates who accompanied him to the St. 
 Louis convention in June, 1896, were unquestionably the 
 choice of the great majority of the Republican voters of the 
 state. Senator Teller, with three other western senators, 
 walked out of the St. Louis convention in protest against 
 the adoption of a gold plank for the national party plat- 
 form, and the news of his action was heralded to the people 
 of Denver by a salute of twenty-one guns on the state capi- 
 tol grounds. 
 
 The relations between Senator Teller and Robert Steele 
 had been especially friendly and intimate. The successful 
 statesman had taken a genuine liking for the youth who 
 was winning for himself such a large number of friends 
 among all kinds and conditions of men. Long before the 
 silver question came into national prominence, Robert Steele 
 had entertained the highest respect and admiration for 
 Senator Teller, and had often sought and received his 
 counsel and advice in political and personal affairs, in 
 conversation and by correspondence. In the partings of 
 the political ways Robert Steele, like thousands of other 
 Colorado Republicans, went with Teller, but he took this 
 course not merely because he was satisfied to follow the
 
 THE TRIBUNAL OF THE PEOPLE 73 
 
 political fortunes of the man for whom he had the highest 
 regard and respect, and not solely because he saw the impor- 
 tance of the silver issue to the welfare of his home state. 
 Robert Steele was an independent thinker, and his own 
 study and his own intelligence had brought to him the con- 
 viction that the silver problem involved fundamental prin- 
 ciples affecting the rights and the interest of the common 
 people. He became convinced that in sober truth a moral 
 issue, as well as a financial issue, was raised by a proposition 
 to change the basic standard by which was determined not 
 merely the exchange value of all kinds of property, but the 
 earning power of labor, and the measure according to which 
 all outstanding debts were to be repaid. Believing as he 
 did, it was impossible for a conscientious thinker like Robert 
 Steele to call himself a Republican so long as the Repub- 
 lican party plainly declared itself opposed to the main- 
 tenance of the monetary system that had been the established 
 practice since the earliest days of the republic. The Silver 
 Republican party was the necessary and logical result, not 
 of Teller's bolt, which was merely incidental, but of the 
 adoption by the Republican party of a new test of party 
 loyalty. 
 
 It was as a Republican that Robert Steele had been 
 appointed to the county bench by the commissioners. It 
 was as a Republican that the party convention, September 
 26, 1895, had given him by acclamation the nomination 
 both for the short and the long terms. It was as a Repub- 
 lican that the people in the following November had 
 approved the choice of the commissioners and the selection 
 of the party convention; at the same time setting their seal 
 of approval upon his course of public conduct thus far. 
 But the election of Adams as governor in 1896, and the 
 re-election of Teller as senator in January, 1897, marked 
 a great and permanent change in political conditions. In
 
 74 ROBERT WILBUR STEELE 
 
 1898, Judge Steele was again a candidate for re-election, 
 primarily as a Silver Republican, but with the endorsement 
 of the People's, the Democratic, the Teller Silver Repub- 
 lican and the National People's parties, and he received 
 almost exactly two-thirds of the total number of votes cast 
 at that election. 
 
 In those years of political confusion party names were 
 still strong with large masses of voters, partisan banners 
 were waved as wildly as ever before, and partisan bosses 
 still plotted in the old way and held firmly to the belief, 
 often frankly expressed, that machine methods of chicanery 
 and usurpation were necessary for the conduct of public 
 affairs. Looking back over those years, with the knowledge 
 of what has developed since, it is easy to see that they were 
 years of partisan disorganization. The old issues growing 
 out of the attempted secession of the slave-holding states 
 and the reconstruction of the Union were no longer domi- 
 nant upon the political purposes and aspirations of the 
 masses of American voters. New issues were beginning to 
 rise amid the fragments of outgrown forms. The period 
 of reorganization had not yet arrived, and it would have 
 required the vision of a prophet rather than that of a states- 
 man to have foretold along what lines the political develop- 
 ment of the future would run. The vote of the senatorial 
 election of 1895, when Wolcott, Republican, received 57, 
 Pence, Democrat-Populist, 36, and Thomas, the National 
 Democrat, 3, gives proof that the change then going on was 
 something far wider and more fundamental than a change 
 from one party to its opponent, a simple transfer of the 
 commission of public authority from one established organi- 
 zation to another party, constructed upon similar lines, 
 working with similar methods, and devoted to a policy that 
 consisted mainly in taking the opposite view of the things 
 that were occupying the attention of its political rival. The
 
 THE TRIBUNAL OF THE PEOPLE 75 
 
 succession of Democratic governors — Adams in 1896, 
 Thomas in 1898 and Orman in 1900 — definitely marked 
 the rejection of the old political faith and methods to which 
 the people of Colorado had almost continuously pledged 
 their allegiance in former years, but the beginnings of the 
 new life of the future, the developing form of the politics 
 of the twentieth century is not to be found among the 
 champions or the "wheel horses" of either of the old party 
 organizations, but with Teller and Steele and unnumbered 
 others from both parties who thus early broke the customary 
 bonds of political conservatism and set for themselves the 
 higher standard of the people's welfare as the supreme 
 authority for their political conduct. 
 
 How closely Judge Steele kept himself to the domestic 
 affairs of the common people, how earnestly he devoted 
 himself to the faithful performance of the duties of the 
 office that had been committed to him, how successfully 
 he planned and wrought and withstood, as the agent of 
 state authority for the benefit of those that came within 
 the circle of his power and influence, is told in the volumes 
 of the proceedings of the court of Arapahoe County for the 
 years 1895 to 1900. From that amount of material it is 
 possible to select for present use only such instances as may 
 serve to show the scope, the character and the purpose of 
 the work that he was doing. 
 
 The divorce business of the County Court was a large 
 pare of its routine work. The comparative laxity of Colo- 
 rado divorce laws, in spite of legislative efforts at reform, 
 had been further increased by the practices of the courts. 
 It was for the legislature and not for the judge to make 
 the laws, but it was clearly the duty of the judge to see 
 that the laws were executed and administered correctly. 
 In a single day Judge Steele dismissed three juries, dis- 
 charging them after they were impanelled and the cases
 
 76 ROBERT WILBUR STEELE 
 
 begun, because formalities prescribed by law had not been 
 complied with, or because a proper preparation and presen- 
 tation of evidence had not been made. In another case, 
 where the testimony of the applicant for divorce did not 
 appear to be satisfactory, Judge Steele took matters into 
 his own hands, personally questioned the witness, and 
 refused to proceed with the case until certain matters that 
 seemed mysterious had been explained and cleared up to his 
 satisfaction. Such incidents are not important in them- 
 selves, but they indicate that Judge Steele took his work 
 seriously, that he considered himself to be a responsible 
 agent in the administration of justice and not merely the 
 attendant of a divorce mill. 
 
 The county judge has the authority to bind as well as 
 to loose, and the office of marrying was not without some 
 surprising incidents. In one particular case, after the cere- 
 mony had been performed the judge accidentally discovered 
 that the bridegroom was under the legal age, and that the 
 marriage license had been issued through the neglect of a 
 clerk who had omitted to ask the prescribed questions. 
 Thereupon the wedded pair were officially notified that the 
 completed ceremony was null and void. The following 
 day, however, the eighteen-year-old bridegroom returned 
 with two witnesses to prove that he was self-supporting and 
 that his parents were non-residents of the state, whereupon 
 the judicial sternness was mollified and the ceremony was 
 allowed to stand as of good record and effect. 
 
 In another case the matrimonial candidates appeared 
 in court while a divorce case was being heard. It was with 
 characteristic kindliness that he interrupted his business to 
 comply with their request, and the incident became further 
 illustrative of his personal interest in the welfare of all 
 around him when he took advantage of the opportunity to 
 give them a simple, kindly talk upon the pitfalls and safe-
 
 THE TRIBUNAL OF THE PEOPLE 77 
 
 guards of married life, calling their attention to the wreck 
 of happiness that had been so incongruously presented to 
 their view at that particular time. 
 
 An interesting fact in this connection is that Judge 
 Steele never accepted a fee for his service in the marriage 
 ceremony, but conferred the state's recognition of the mating 
 of man and woman, as a privilege of citizenship, without a 
 charge. 
 
 The work of naturalization also came under the author- 
 ity of the County Court. Like the divorce laws, the natu- 
 ralization laws of that time were very lax. A great many 
 persons were naturalized in almost every state as a part of 
 the regular methods of machine politics, and too often very 
 little effort was made to require any proof of fitness for 
 citizenship, or any genuine compliance with the very liberal 
 provisions of the law. Judge Steele was one of the earlier 
 judges to insist upon some demonstration of the applicant's 
 understanding of the duties of citizenship, although his 
 efforts to uphold the standard were not always successful, 
 as witness the case of "Joe" Shiwagri, a Syrian, who, after 
 five years of residence in this country, knew but a single 
 word of English, his own abbreviated first name, and who 
 could neither read nor write. Judge Steele refused natu- 
 ralization, but "Joe" promptly renewed his application 
 before a judge of the District Court and became, as the 
 newL;paper account of the day has it, "a full-fledged member 
 of the voting contingent for use at the next election." 
 
 The responsibility of the state toward the insane, 
 involving, as it often does, the enforced restraint of the 
 patient and his separation from friends and home, is espe- 
 cially trying to public officials and others connected with 
 this part of governmental duty. Conscientious and sympa- 
 thetic in his nature as Judge Steele was, the testing of 
 persons suspected of insanity, and the care of the interests
 
 78 ROBERT WILBUR STEELE 
 
 of those who were incompetent to care for their own, made 
 unusual demands upon his strength, which were never 
 slighted or refused. The difficulties and the thanklessness 
 of such duties are well illustrated by the once famous Daily 
 case. Daily had been sent to jail by Judge Steele for con- 
 tempt of court in refusing to pay alimony to his divorced 
 wife, but he had been released when it became evident that 
 he was unable to make the payments and that no good would 
 result from his continued imprisonment. Mrs. Daily 
 became possessed with the idea that Judge Steele was her 
 personal enemy, and, after several months of letter writing, 
 personal visits and other forms of annoyance to him and to 
 members of his family, her delusions culminated at two 
 o'clock one April morning in 1899, when she threw two 
 large stones and a heavy bottle through three large windows 
 of Judge Steele's residence. The missiles were accompanied 
 with signed notes and newspaper clippings referring to her 
 fancied wrongs and grievances. When Mrs. Daily was 
 tried upon a charge of insanity. Judge Steele had Judge 
 Jacobs come from Greeley in order that there might be no 
 doubt about the fairness of the hearing. She was sent to 
 the state asylum at Pueblo, from which she twice escaped, 
 but was soon recaptured. Even after she was released in 
 the care of friends from another state, her unreasoning 
 enmity toward those who had never injured her in any way 
 was a continued source of apprehension for the objects of 
 her hate. 
 
 Another case, which involved the rights of the mentally 
 incompetent as well as those of the widow, was that of Dr. 
 Henry Bucknum, who had a five-thousand-dollar life insur- 
 ance policy issued by a certain company. Dr. Bucknum 
 went insane and died in the Pueblo asylum. At the time 
 of his death the original policy had been replaced by one 
 for $2,000, which the company refused to pay, claiming
 
 THE TRIBUNAL OF THE PEOPLE 79 
 
 that, at the time the application was made for the second 
 policy, Dr. Bucknum was not in sound health as stated in 
 the paper he signed, but was insane. Suit having been 
 brought. Judge Steele decided that the widow was entitled 
 not merely to the $2,000 for which she sued and for which 
 he gave judgment, but for the entire amount, $5,000, of 
 the original policy, inasmuch as the doctor as an insane 
 person could not legally make a substitution of his policy 
 or a waiver of his own rights or those of the beneficiary. 
 
 In the conduct of the probate business of his court. 
 Judge Steele showed himself a vigilant protector of those 
 whose interests came under his authority, a clear-sighted 
 dispenser of justice in the intricate settlements of estates 
 under will or the general statute, and a very active and 
 stern foe of everyone, whether attorney, official or claimant, 
 who sought to gain an unfair advantage over others. Him- 
 self a man of the most scrupulous integrity, it was some- 
 times difficult for him to understand how men in positions 
 of trust and honor could allow themselves to be controlled 
 by dishonest or selfish motives. His always active sympathy 
 for the weak and the unfortunate made him the more 
 uncompromising in his resistance to all forms of injustice 
 and oppression, but the broad tolerance of his humanity 
 extended even to those against whom his indignation wa? 
 righteously aroused. He was just even to the wrongdoer. 
 
 In the famous case of the estate of Isaac Cooper, the 
 report of the administrator showed that five years after 
 Cooper's death the estate that was originally estimated to 
 amount to $100,000 or more had decreased to a balance of 
 $972.95. Judge Steele's attention having been called to the 
 matter, he appointed a referee to investigate the affairs of 
 the estate and summed up the referee's report with the 
 declaration that, while he believed that the administrator
 
 80 ROBERT WILBUR STEELE 
 
 had not been dishonest, no estate before his court had ever 
 been wronged like that of Isaac Cooper : 
 
 "Twenty-four thousand dollars paid to a portion of the fourth- 
 class claimants and bonds taken many of which are worthless and 
 the principals and sureties beyond the jurisdiction of the court; 
 twenty-five thousand dollars paid to attorneys and the estate not 
 near settlement; sixty thousand dollars paid out of the funds of the 
 estate upon orders of the judge" — a former judge of the County 
 Court — "and no records of these expenditures; seven thousand dol- 
 lars loaned to the judge; thirty-five hundred dollars mysteriously 
 disappearing for a space of two years and as mysteriously reappear- 
 ing among the moneys of the estate but without interest." 
 
 Judge Steele further said : 
 
 "A judge who receives favors in the wa}- of a loan and who of 
 his own motion appropriates the money of an estate to his own use, 
 as was shown by the testimony in this case, cannot be expected to 
 scrutinize and impartially pass on the reports of the administrator; 
 his judgment is warped; the consciousness of the wrong he has 
 committed precludes right action ; with him the paramount issue is 
 protection, and having become a wrongdoer, he closes his eyes to 
 the plundering of others." 
 
 In conclusion, Judge Steele fixed what he considered 
 to be proper compensation for the attorneys, ordered the 
 administrator to amend his report so as to show a balance 
 of $6,424.38, accepted his resignation and ordered the 
 papers of the case turned over to the clerk of the court. 
 
 The Tritch will case, involving the disposition of an 
 estate valued at more than a million dollars, was another 
 matter that attracted more than usual attention at the time 
 of its decision. Judge Steele refused to admit the will to 
 probate, mainly because it was eccentric and capricious, and 
 further because it involved apparently an unjust and 
 unreasonable discrimination among the heirs. Judge Steele's 
 decision in the Tritch case is a good illustration of the care- 
 ful attention he gave to such matters, and of his clear vision 
 of justice as well as his comprehensive grasp of the legal 
 principles involved in his judgments.
 
 THE TRIBUNAL OF THE PEOPLE 
 
 81 
 
 The case of the estate of Ezra M. Bell was another 
 matter of general public interest. In this case it was the 
 widow who was insane, and Bell, by instruments of will 
 and deed, had placed his estate in the hands of trustees for 
 the benefit of Trinity Church, with the provision that all 
 of the income, or so much of it as should be necessary, 
 should be applied to Mrs. Bell's comfortable support. 
 Application was made to the court in the name of Mrs. Bell 
 to allow her conservator to take half of the estate under the 
 statute instead of continuing the arrangement by which she 
 was receiving her maintenance from the trustees. In decid- 
 ing the case. Judge Steele said : 
 
 "I have concluded it is for the best interests of the ward that 
 the trustees retain the estate. Under the provisions of the will she 
 is entitled to support and maintenance even to the entire income of 
 the estate. She needs nothing else. If she had other property, she 
 would be unable to manage it because she is incurably insane. Even 
 if she had an estate in her own name, she would be unable to dis- 
 pose of it at her death, for an insane person cannot make a will. 
 Her brothers and sisters are not to be considered in this matter. It 
 appears that Mr. Bell wished to furnish his wife with an income 
 from the estate during her life and that it was his expressed wish 
 that none of his or her relatives should obtain any of the estate. 
 By virtue of the deed there is a possibility at least that if she accepts 
 under the statute, she will get no part of the income from the real 
 estate. The personal property has been used up. So she might lose 
 her entire estate. Therefore I rescind the order heretofore made 
 allowing the conservator to elect under the statute." 
 
 Even the domestic animals came within the scope of 
 the benevolence and humanity of Judge Steele's court. He 
 sentenced to six months in the county jail one Christopher 
 Mack, for "unlawfully, wantonly, willfully and mali- 
 ciously," and, furthermore, drunkenly, beating a horse to 
 death, refusing to allow him to escape imprisonment by 
 paying for the horse, but telling him that he would have to 
 compensate its owner, in installments, after his release from 
 jail. In later years, after Judge Steele had risen to a higher 
 position, he took a prominent part in the campaign against
 
 82 ROBERT WILBUR STEELE 
 
 the barbarous and inhumane practice of docking horses' 
 tails, and v/as largely instrumental in securing the adoption 
 of the law that has stamped out that folly in this state. 
 
 One Saturday afternoon in March, 1900, an unusual 
 scene was presented in the County Court. Eleven boys and 
 one girl between the ages of eleven and sixteen were on 
 trial, charged with various offenses. Eight were accused 
 of truancy from school attendance, one of theft, one of 
 assault and battery, one of stabbing another boy with a 
 knife, and the girl of being incorrigible. So far as the 
 mere presence of these juvenile delinquents — they called 
 them frankly criminals in those days — was concerned, there 
 was nothing unusual in the occurrence. Such compulsory 
 attendance in the minor courts of justice had been customary 
 during the judicial service of Judge Steele; boys and girls 
 had faced their accusers and their judges in many lands 
 and for hundreds of years before there was any attempt to 
 discriminate between such youthful offenders and the older 
 and more hardened criminals. But upon this eleventh day 
 of March, 1900, a new experiment in justice was being 
 tried. It was what Judge Steele had designated as his 
 "Juvenile Field Day," and he made the announcement that 
 he proposed to continue the practice during his term of 
 ofHce, or until all the children of the county should go to 
 school regularly and cease from offenses against the peace 
 and dignity of the state of Colorado. 
 
 Relatives, teachers and friends of the culprits crowded 
 the courtroom, their interest in the individuals mingled with 
 a lively curiosity to learn what new form of justice was to 
 be dispensed that day. A deputy district attorney was still 
 there to represent the power and majesty of the great state 
 of Colorado, and a truant officer was there as a sort of 
 inferior constable and witness. ("I am the truant officer; 
 God help me !" he said in an undertone to a bystander.)
 
 THE TRIBUNAL OF THE PEOPLE 83 
 
 But from the beginning it was evident that a new role had 
 been created in the judicial system, and the presiding judge 
 became the children's mediator and friend. He was there 
 not to punish, but to help ; not to condemn beyond redemp- 
 tion for past offenses, but to remove obstacles, to point out 
 error and folly and to open the way toward honorable and 
 useful citizenship. As yet the machinery of the law was 
 lacking for the full accomplishment of such a purpose, but 
 Judge Steele did the best he could with the means at hand. 
 Fred, who was charged with absence from school, vagrancy 
 and theft, came into court with two loaves of bread and 
 seven boiled potatoes in his blouse, and was sent to the 
 reform school. Roy, without home and without friends, 
 who had not been at school for a long, long time, was sen- 
 tenced to the same refuge. Clement's case was that of evil 
 associations and incorrigibility, and his parents agreed that 
 there was no other course open than to send him to the 
 reform school ; but the mother fainted in court when the 
 sentence was pronounced. Louis, who was accused of cut- 
 ting another boy, received the usual sentence, which was 
 suspended because he was defending himself from attack. 
 Eddie, abandoned by his parents, wanted to go to the reform 
 school so that he could get an education, and his case was 
 taken under advisement, with the result that he was sent to 
 a farm where he could learn to work and study. Henry, 
 Albert, John and Russell were all convicted and formally 
 sentenced to the reform school, upon which they burst into 
 tears and wished they had been good, thereby arousing the 
 smiling contempt of some of the more hardened criminals 
 present. Judge Steele then talked with each of the four 
 boys, and, having secured promises that they would attend 
 school regularly, he suspended their sentences. A second 
 Eddie, and Freddie, also received the suspended sentence 
 treatment, and Edna, a negro girl, was sentenced to the 
 state home.
 
 84 ROBERT WILBUR STEELE 
 
 A personal interest on the part of the judge in each 
 of the offenders, a personal inquiry by conversation with 
 each one in order to ascertain the causes and the conditions 
 of the development of criminal traits and acts, an individual 
 application of the legal prescription to each case, and a 
 suspension of legal punishment under promise of good 
 behavior for such as seemed to merit such consideration, 
 were the features of Judge Steele's Juvenile Field Day, and 
 these have been the principles according to which has been 
 established the structure of the juvenile courts of a later 
 day. 
 
 Of course, that was not the beginning of Judge Steele's 
 interest in youthful truants and criminals. Long before the 
 Juvenile Field Day had been inaugurated, one morning a 
 boy of eight, and small for his years, was brought into the 
 court, to determine the question of his custody between his 
 legal guardian and an aunt whom the boy had learned to 
 love. Witnesses had been heard, the learned lawyers had 
 made their pleas, and the judge had given his decision 
 according to the law and the facts presented. But the case 
 was not ended. Force would be necessary to take the crying, 
 clinging child from his aunt. Then the judge called the 
 little fellow close to him and they whispered to each other 
 for a moment, and the former decision was reversed. 
 
 Nor was the Juvenile Field Day, which Judge Steele 
 established, the end of the movement for the redemption of 
 erring and unfortunate children. Judge Steele's successor 
 on the county bench was Judge Ben B. Lindsey, who gained 
 a world-wide reputation as the judge of a court established 
 exclusively for juvenile offenders. Judge Lindsey himself 
 freely and frankly acknowledged the value and importance 
 of Judge Steele's services in this great work of reform. 
 In 1908 Judge Lindsey wrote to Justice Steele, of the 
 Supreme Court: "I wish, if you could, you would write
 
 THE TRIBUNAL OF THE PEOPLE 85 
 
 the opinion in the contributory delinquent case that is now 
 before you. It seems to me that your experience and train- 
 ing in the County Court and knowledge of the chancery 
 powers in protecting the material and physical welfare of 
 the child in that court and disposition to apply those prin- 
 ciples to protecting its moral welfare, make you more emi- 
 nently fit to expound this doctrine than any of the other 
 judges. Again, I have a little sentiment in the matter. You 
 were the first judge to enforce our law of 1899 which con- 
 tained the germ of the present Juvenile Laws, and in refer- 
 ring to the matter I want to refer to the decision by you." 
 And no one gave more hearty recognition to Judge Lind- 
 sey's splendid work in developing the Juvenile Court than 
 was bestowed by Judge Steele upon the younger man who 
 had begun his career of success and fame in the law offices 
 of Steele & Malone. Not Judge Lindsey alone, but other 
 county judges also, in Colorado Springs, in Pueblo and in 
 other Colorado cities, helped to make Colorado a conspic- 
 uous leader in the work of seeing and doing the state's duty 
 toward the bad boys and girls, and toward those that were 
 only in danger of becoming bad. And other noble men and 
 women in all the states contributed their thought and effort 
 in establishing a reform that is now almost universally 
 accepted through the civilized world.
 
 CHAPTER VI 
 
 UNOFFICIAL OPINIONS AND ACTIVITIES 
 
 Outside the employment of his official positions, as a 
 citizen and as a man Robert Steele was always actively 
 interested in whatever cause was for the welfare of the city 
 or the state, and he was always ready when called upon 
 for service that would be a benefit to someone that needed 
 his help. One of the letters of which a copy remains he 
 wrote to Mayor Van Horn, while he was district attorney, 
 in the calamitous year of 1893, urging the maintenance of 
 abundant street lights as a means of preventing highway 
 robberies, and expressing the belief that economy might 
 better be secured elsewhere. When the disastrous Iroquois 
 Theater fire occurred in Chicago, Judge Steele promptly 
 took steps to secure the safety of Denver theatergoers and 
 enforced a rearrangement of seats and exits in one of the 
 larger theaters of the city. 
 
 Robert Steele's retentive memory and his acquaintance 
 with general literature was well illustrated upon one occa- 
 sion, when he was still a law student, when he attended a 
 public meeting, at which the speaker began the quotation: 
 
 "As some tall cliff" 
 
 and was unable to continue, the following words having 
 
 eluded his memory. Judge Steele, who was seated near the 
 
 speaker, promptly relieved his embarrassment by supplying 
 
 the words, 
 
 "that lifts its awful form 
 
 Swells from the vale and midway leaves the storm." 
 
 and received the cordial thanks of the forgetful orator. 
 
 When the anti-toxin treatment for diphtheria was dis- 
 covered, it was Judge Steele's contribution of $100 that
 
 UNOFFICIAL OPINIONS AND ACTIVITIES 87 
 
 brought the lirst portion of the new remedy to Denver, for 
 use at the city hall by Health Commissioner Munn. 
 
 He liked to travel, as is the case with most men, and 
 the story of the years should include at least a reference to 
 a trip to California and another to Cuba, while visits to the 
 eastern states, for business or pleasure, were too frequent 
 for detailed mentiork. In connection with one such early 
 trip the story is told by a friend and frequent companion :* 
 
 "We were about to start to New York City together. 
 The judge asked whether I had any choice of route and I 
 told him I had none. He said that, if he were going alone, 
 he would go by the Santa Fe ( which takes six or seven 
 hours longer between Denver and Chicago than some other 
 routes), and after some discussion I found that he patron- 
 ized the Santa Fe whenever he could because in former days, 
 when he was in business and before he held a public posi- 
 tion, he had some business dealings with that company. 
 We went to the Santa Fe offices to get our tickets. The 
 agent of the company insisted upon giving him a pass, 
 which he refused, because after he was elected to the bench 
 he never rode on a pass, although it was the common prac- 
 tice for anyone with any influence whatever to ride on a 
 pass in those days. He would not take the pass, but his 
 sentiment for the road was there. He would take six or 
 seven hours longer to patronize a railroad with whose offi- 
 cials he had had friendly business relations in long gone 
 years. Frequently he acted because of a sentiment for some- 
 thing in the past, and I could tell of many instances where, 
 in the little, everyday affairs of life, Judge Steele stepped 
 out of his way to respond to a feeling of sentiment for old 
 times, or old places or old friends. But, you may ask, did 
 not this unfit him for acting in an impartial way in the 
 
 *Mr. Guy Leroy Stevick.
 
 88 ROBERT WILBUR STEELE 
 
 larger affairs of life'? No, not in the larger nor in the 
 smaller affairs of life. The larger affairs are just made up 
 of the smaller affairs. True sentiment does not do wrong. 
 True sentiment is just the great heart of humanity, and he 
 
 who truly follows it will not go wrong." 
 
 * * * 
 
 That Robert Steele's patriotism was not merely an 
 empty profession was demonstrated at the time of the war 
 with Spain, when he was County judge. He bought a 
 manual of military tactics and began to study it in prepara- 
 tion for service as a soldier. "I am going to the war if my 
 country needs me," he quietly said to a friend, but made no 
 public or general announcement of his purpose. A short 
 time later he offered his services to Governor Adams, who 
 assured him that, under the conditions then existing, his 
 services were more needed in the County courtroom than in 
 the concentration camps of the volunteers, but gave the 
 requested promise that if the need arose Robert Steele should 
 have his place in the ranks of the soldiers of liberty and the 
 nation's defenders. 
 
 While judge of the Supreme Court, Robert Steele was 
 much interested in the law library of the capitol, and he 
 helped in various ways to make that library more convenient 
 and useful to lawyers and the general public. Among other 
 things, he procured the binding, in convenient form, of a 
 large number of pamphlets, which were previously unavail- 
 able for use on account of lack of arrangement. 
 
 Another matter in which he was much interested in 
 this period was the constitution of the new state of Okla- 
 homa. The constitutional cases brought before Justice 
 Steele and his associates had impressed him with the dan- 
 gerous possibilities of misinterpretation and usurpation. 
 The makers of the Oklahoma constitution were fully awake 
 to these dangers, and some of the prominent members of
 
 UNOFFICIAL OPINIONS AND ACTIVITIES 89 
 
 the convention in that state were in consultation with Judge 
 Steele regarding the unique features of that constitution 
 which received such severe criticism, but which ought to be 
 read, in part at least, in the light of Colorado experiences 
 and of the decisions of the Colorado Supreme Court, which 
 were fresh at the time of its adoption. 
 
 * * * 
 
 That Robert Steele might have taken high rank as a 
 public speaker is the universal belief of those who knew 
 him well. From his high school days he had the ability 
 both to construct and to deliver his opinions upon matters 
 of public interest in pleasing and impressive form and 
 manner. He was much in demand as a public speaker, and 
 it was only as a result of his own avoidance of prominence 
 and publicity that he was not almost constantly engaged 
 as a political and social orator. As a matter of fact, he 
 rarely appeared as a speaker on public occasions, and the 
 subjects that commanded his support in this way give good 
 proof of the matters in which he was most interested. 
 
 On January 9, 1899, a "Jackson dinner" was held, 
 which was especially interesting as a celebration of the 
 recently consummated fusion of the Democrats, Silver 
 Republicans and Populists of Colorado. Judge Steele, who 
 had been re-elected as County judge in the preceding 
 November on the fusion ticket, was one of the speakers and 
 said in part : 
 
 "Silver Republicans are willing to join with you in 
 celebration of this great day. They recognize in Jackson a 
 peerless leader and advocate of the people against combined 
 wealth, whose crowning act was to throttle a giant corpora- 
 tion, the like of which has not been seen in the country 
 until trusts and monopolies were fostered by the infamous 
 financial policy of the party now in power. * * * ^he 
 Democratic party was born again at Chicago in 1896, and,
 
 90 ROBERT WILBUR STEELE 
 
 with the aid of the People's party and the Silver Repub- 
 lican party, cast more votes for its candidate than were cast 
 for all the candidates at any election prior to 1876. 
 
 "I believe there is a unity of purpose on the part of 
 the Democratic, the People's and the Silver Republican 
 parties and that purpose is to restore silver to its place as 
 a money metal. The monied interests will, by strategy and 
 insidious wiles, attempt to foist other issues upon us. They 
 will not succeed, and the triple fusion has, I believe, come 
 to stay. 
 
 "Jackson said : 
 
 " 'It is to be regretted that the rich and powerful too often 
 bend the acts of government to their selfish purposes. Distinctions 
 in society will always exist under every just government. Equality 
 of talents, of education or of wealth cannot be produced by human 
 institutions. In the full enjoyment of the gifts of Heaven and the 
 fruits of superior industry, economy and virtue, ever>- man is equally 
 entitled to protection by law; but when the laws undertake to add 
 to these natural and just advantages artificial distinctions, to grant 
 titles, gratuities and exclusive privileges, to make the rich richer 
 and the potent more powerful, the humble members of society — the 
 farmers, mechanics and laborers — who have neither the time nor 
 the means of securing like favors to themselves, have a right to 
 complain of the injustice of their government. There are no neces- 
 sary evils in government. Its evils exist only in its abuses. If it 
 would confine itself to equal protection, and, as Heaven does its 
 rain, shower its favors alike on the high and the low, the rich and 
 the poor, it would be an unqualified blessing.' 
 
 "To these ideas we fully subscribe. We will unite 
 with you in the essential issues, namely, the free coinage 
 of silver and the destruction of the trusts. We believe the 
 surest method of preventing the combinations of wealth is 
 to coin silver at the ratio of 16 to 1. 
 
 "We will not differ with you concerning less important 
 matters. We will ignore the differences now besetting you, 
 and will draw the veil of charity over Democracy of the 
 past, and will hail, as the coming of the dawn, the new 
 Democracy — the triple fusion — which will restore to us the 
 money of the constitution and make us prosperous and 
 happy.
 
 UNOFFICIAL OPINIONS AND ACTIVITIES 9I 
 
 "May God bless and prosper our people under the 
 administration of Charles S. Thomas as they have been 
 blessed and prospered under the administration of Alva 
 Adams." 
 
 On January 31, 1907, there was held, under the initia- 
 tive of Governor Henry A. Buchtel, what was appropriately 
 named a Good-Fellowship dinner, with the expressed pur- 
 pose of harmonizing conflicting interests, reconciling hos- 
 tilities, and forwarding united efforts for the common good. 
 One of the speakers was Justice Steele of the Supreme 
 Court, who said : 
 
 "We are here in the cause of upbuilding the state and 
 improving the condition of our people. Upon this subject 
 none need be for a party, all may be for the state, and we 
 can be as the Romans were in the good days of old. 
 
 "Realizing that many flowers of friendship never 
 bloom simply because men do not know each other, our host 
 has designed these Good-Fellowship dinners, that all who 
 stand up for Colorado may greet each other as friends. 
 While we are feasting ourselves, let me recall to your minds 
 some of the achievements of those sturdy characters who 
 braved the terrors of the wilderness and struggled with the 
 wild beasts and wild men to found at the base of these 
 mountains a city that is destined to become one of the great 
 cities of the nation, and to establish a commonwealth that 
 should become the brightest jewel in the diadem of states. 
 They were venturesome, patriotic and restless, and organ- 
 ized here, without the semblance of authority from the 
 nation, the territory of Jefferson ; elected a full set of offi- 
 cers, organized a legislature, and passed and published laws 
 for its government — an action altogether unique in the his- 
 tory of the country. Their efforts to maintain an independ- 
 ent government were romantic, but not unpatriotic ; and
 
 92 ROBERT WILBUR STEELE 
 
 when the federal government organized the territory of 
 Colorado, the officers of the territory of Jefferson grace- 
 fully gave way, and commanded recognition of the new 
 officers appointed by the federal government. When we 
 remember that many here were in sympathy with the South, 
 that others were in favor of establishing an independent 
 empire west of the Missouri, and that the government could 
 not, for some time at least, have compelled submission to 
 its authority, the action of the officers of the territory of 
 Jefferson may have changed the course of this section, and 
 we should revere them and honor them for what they did. 
 
 "The people were most constant in their demands for 
 statehood, and, responsive to that demand, congress, in 
 1864, passed an enabling act, and finally, in 1865, the 
 people ratified a constitution. John Evans and Jerome B. 
 Chaffee were elected senators of the United States, and 
 proceeded to Washington, expecting to take their seats in 
 the senate, but they were informed that they would be 
 admitted to the senate upon condition (and I have it from 
 one of the actors) that they would support the president 
 and his policy. This they declined doing, and the president 
 promptly vetoed the bill for the admission of Colorado. 
 This action delayed statehood for ten years, but not to our 
 detriment. Had these men surrendered principle for an 
 office, our progress would have been retarded for many 
 years, and we owe them a debt of gratitude. 
 
 "The promoters of the Kansas-Pacific Railroad de- 
 manded of the people here a tribute in the way of bounty 
 amounting to a large percentage of the assessed valuation 
 of all the property of this county, and threatened to cross 
 the mountains away to the south, skirting our southern 
 boundary, unless bonds were voted to aid in the building 
 of the road to Denver. The proposition was declined, and 
 Governor Evans, whose son projected our Northwestern
 
 UNOFFICIAL OPINIONS AND ACTIVITIES 93 
 
 Railroad, projected and financed, with the enthusiastic sup- 
 port of the people, the Denver Pacific Railroad, connecting 
 Denver with the Union Pacific at Cheyenne, thus compel- 
 ling the Kansas Pacific to build into Denver, settling and 
 permanently fixing not only Denver but Colorado as a 
 railroad center. 
 
 "These epochs I have mentioned are but a few of those 
 of our early history that are worthy of consideration. I 
 have mentioned them because they seem to be decisive points 
 in the career of our people, and show the loyalty, the enter- 
 prise, the courage — the character, in fact — of those who laid 
 for us a substantial foundation upon which we are building 
 a permanent superstructure that shall remain until time 
 unveils eternity. We can never pay the debt we owe to 
 these sterling characters wl o thus builded for us. 
 
 "When silver slumper', when the banks failed, when 
 mines closed, when values vanished, when debts doubled, 
 we were all in distress ; but we have passed through that 
 period and now we are on another basis. True that credi- 
 tors have the debtors' property, but on the whole we were 
 benefited by the adversity. Let us not have another such 
 boom ; it does not pay. That boom lowered the moral 
 standard and injured our reputation as a state. The more 
 buyers there were for lots in North Denver, Weld County, 
 the less there are to buy at fair prices in Denver proper. 
 The more there were who bought lots on Green Mountain, 
 thinking they were buying in Denver, the less there are now 
 to buy on Capitol Hill. We are favored as few states are, 
 in the very infancy of our development, with many millions 
 of acres of irrigable land, soon to be made productive 
 through the use of water from storage reservoirs. With 
 untouched coal fields, with undeveloped veins of precious 
 mineral, our future greatness is beyond calculation, but our 
 climate is our greatest asset. Our almost eternal sunshine
 
 94 ROBERT WILBUR STEELE 
 
 revives our spirits and preserves our health; it induces 
 open-air recreation ; it kills the germs of disease ; it affords 
 labor the healthful outdoor employment; it sweetens the 
 beet ; it brightens the bloom upon the peach ; it colors the 
 apple ; it flavors the melon ; it grants a profusion of wild 
 flowers ; it matures the grass and grain without decay. This 
 sunshine, showering its manifold blessings, charms us, and 
 makes us long to return to it and our favored land. 
 
 "The opportunities for acquiring wealth were never 
 better than now. All business and enterprises have a fair 
 field, and capital invested is assured an abundant return ; 
 but we shall be poor, indeed, if in the acquirement of wealth 
 we neglect the essentials of good citizenship. Wealth is not 
 an essential of good citizenship, nor can it alone make a 
 state ; but we must have men who know their rights and 
 have the courage to maintain them. A mind solely bent on 
 acquiring wealth accustoms the conscience to become pliable 
 to the touch of every interest, and looks with complacence 
 and indifference upon the inroads made by the wicked and 
 designing upon the liberty of the citizen. You have lately 
 heard of the proposition, publicly made, to have the constitu- 
 tion construed to meet the changed conditions, and it is said 
 with confidence that such will be done when the occasion 
 requires. Mr. Justice Brewer said but a few months ago : 
 
 " 'Never let the courts attempt to change laws or constitution 
 to meet what they think present conditions require. When they do 
 this, they clearly usurp powers belonging to the legislature and the 
 people. The most glorious product of our civilization is not the 
 entrancing beauty of the capitol, its marvelous manufacturing, min- 
 ing and other industries, but rather the individual's possession of 
 an independent, conscientious, public-spirited citizenship. Whatever 
 may be the changes of the future, whatever the new conditions of 
 social, business or political life, the time will never come when 
 anything will justify shackling the Golden Rule or striking down 
 the Declaration of Independence.' 
 
 "While we are enjoying this period of prosperity, this 
 dangerous age of commercialism, let us not forget the les-
 
 UNOFFICIAL OPINIONS AND ACTIVITIES 95 
 
 sons of the past nor our duty to our children. We should 
 have constantly before us the thought that our fathers 
 transmitted to us civil and religious liberty, to be sacredly 
 maintained to transmit to our children and our children's 
 children forevermore. If through our indifference or inat- 
 tention these gifts of liberty, or any of them, are taken 
 away from even the most wicked of us, we cannot transmit 
 them to our children, and we shall be known to history as 
 a recreant people, and faithless to a sacred trust; but if we 
 upbuild this state, cultivate the soil, extend our trade, help 
 the poor, respect the moral and civil law, preserve the con- 
 stitutional guarantees of personal rights, and maintain 
 liberty, we shall be blessed by our children and shall receive 
 the sweet approbation of Heaven." 
 
 A few days later Judge Steele received the following 
 letter : 
 
 My Dear Judge — I want to express my appreciation of the 
 remarks j'ou made at the banquet the other night. I am proud of 
 the fact that you are now the chief justice, and I am also proud of 
 the fact that the chief justice of our Supreme Court should think 
 that there is something to be boosted besides material prosperity, 
 and that there is such a thing as character which is more important 
 than dollars. Sincerely yours, 
 
 Quite a unique experience in public dinners was that 
 of the Garfield banquet, which was held in Denver June 
 20, 1907. James R. Garfield, then secretary of the interior, 
 had come to the West to allay, if possible, the rising tide 
 of popular disapproval of the conservation policy of the 
 Roosevelt administration. As head of the department he 
 was ostensibly the object of the many severe criticisms that 
 had been made, and among the prominent guests at the 
 banquet the majority had been either outspoken in con- 
 demnation or manifestly in sympathy with the critics of 
 the president and his secretary. It was Justice Steele who
 
 96 ROBERT WILBUR STEELE 
 
 was chosen to preside over a situation where the elements 
 of a social and political explosion were dangerously appar- 
 ent. With rare tact and good humor Justice Steele accom- 
 plished his difficult task. The son of the martyred president 
 found himself encircled by friends and well-wishers, and, 
 while none of the just claims of the West were abated, the 
 possibilities of a friendly understanding and compromise 
 of conflicting interests were greatly advanced. A few days 
 later Justice Steele was greatly pleased to receive from 
 Hon. J. C. Helm the following note : 
 
 "My Dear Judge — Consider yourself retained as official toast- 
 master at all of my banquets during the rest of your natural life. 
 I congratulate you. Before the entertainment I was sorry for you ; 
 when it was over I was envious of you. You did splendidly and 
 contributed in large measure to make the occasion the magnificent 
 
 success it was." 
 
 ^ ^ ^ 
 
 On December 11, 1908, a public meeting was called in 
 the Denver auditorium to protest against the surrender of 
 a Russian political refugee whose extradition had been 
 demanded by the Russian government for alleged criminal 
 offenses. The principal speaker was Mrs. Mary C. C. 
 Bradford, who was introduced by Judge Steele in these 
 words: "The next speaker is a direct descendant of a signer 
 of the Declaration of Independence. When you hear her 
 voice and her words, you will realize that the Liberty Bell 
 has not ceased to ring." 
 
 Judge Steele further said: 
 
 "We are assembled in this splendid structure, erected 
 by the command of the people of Denver, to protest against 
 the degrading of the friendly processes of extradition to the 
 base use of wringing from witnesses the secrets and the 
 names of Russian revolutionists. We are here to protest 
 against the surrender of the refugee's from political perse- 
 cution to the minions of the czar, believing from the experi- 
 ence of those who have voluntarily returned that they will
 
 UNOFFICIAL OPINIONS AND ACTIVITIES 97 
 
 not be afforded a trial and will be murdered immediately 
 upon reaching the domain of Russia. Individually I do 
 not believe that these men will be surrendered, unless under 
 the treaty they should be, and I am willing to submit to the 
 judgment of the secretary of state. He knows, as well as 
 we do, that this government was founded by revolutionists 
 for revolutionists, that this government has never surren- 
 dered a political refugee, and that to do so would merit the 
 reprobation of the civilized world. Under the guise of the 
 charge mentioned in the treaty it has been many times 
 attempted, but at no time has a political refugee been sur- 
 rendered. Great Britain has tried it; Canada has tried it; 
 Mexico before the republic tried it. But the answer always 
 has been that this country is an asylum for the political 
 refugee of every clime. So I do not fear that these men 
 will be improperly surrendered. But I would take this 
 occasion to send greeting to the Russian revolutionists and 
 say to them that our hearts throb in sympathy for them 
 and that we sincerely wish that they may, upon the ruins 
 of a despotic and tyrannical government, build a nation 
 
 dedicated to liberty." 
 
 * * * 
 
 At a celebration of the fiftieth anniversary of the dis- 
 covery of gold in the Rocky Mountains, at Idaho Springs, 
 May 7, 1909, Judge Steele delivered an address, in which, 
 after reviewing some of the early history of the region, he 
 said : 
 
 "Our fathers transmitted to us the gifts of civil and 
 religious liberty, to be kept inviolate for transmission to 
 our children. Let us, on the fiftieth anniversary of our 
 beginning — as we did at the start and upon our admission — 
 resolve to transmit to our children the liberty transmitted 
 to us. If, through indifference or inattention, these gifts 
 are lost to us, we shall be faithless to our children and
 
 98 ROBERT WILBUR STEELE 
 
 recreant to a sacred trust. We cannot maintain them invio- 
 late if the wicked among us lose theirs. They were given 
 for wicked and pure alike. Let us upbuild our state and 
 still maintain our liberties ; transmit to our children wealth 
 if we must, but grapple the gifts of liberty to your souls 
 with hoops of steel, as you should your true friend, or they 
 will escape you. The struggle is eternal. You must gather 
 the manna of liberty daily, to use it. 
 
 "If you leave your children a land governed by a 
 privileged class and not by all the people — a land where 
 the laws grind the poor and the rich men rule the law — you 
 will leave them poor indeed. But if you maintain liberty, 
 preserve the constitutional guaranties of personal rights, 
 respect the moral and civil law, your children will bless 
 you forever and forever. 
 
 "Let us express the sentiment proclaimed in the first 
 issue of the first paper published in this section : 
 
 " 'Hurrah for the land where the moor and the mountain 
 Are sparkling with treasures no language hath told; 
 Where the wave of the river and spray of the fountain 
 Are bright with the glitter of genuine gold.' " 
 
 * * * 
 
 July 14, 1909, Judge Steele, on account of the unfore- 
 seen absence of Governor Shafroth, was requested to make 
 the speech of acceptance at the unveiling of the Soldiers' 
 monument on the capitol grounds. He said : 
 
 "In the absence of the governor I have been detailed 
 to accept on behalf of the state this specimen of the crafts- 
 man's art. It is accepted as a completed work. It is not 
 my province at this time to recount the achievements of the 
 Colorado boys. The names inscribed on the monument will 
 stir the soul of everyone familiar with our history, and the 
 surmounting figure represents the soldier facing the south 
 ready to repulse the advance of the enemy. The bitterness
 
 UNOFFICIAL OPINIONS AND ACTIVITIES 99 
 
 of that struggle has been forgotten, and the Union was 
 cemented upon the appearance of a common foe, and now 
 soldiers of the North and of the South march side by side 
 to strew the wealth of spring upon the graves of the fallen 
 brave. More than forty years ago our sister, New Mexico, 
 dedicated a monument to the valorous soldiers of Valverde, 
 Apache Canon and Glorietta, and it is proper that we, 
 although tardy, should erect this memorial in commerriora- 
 tion of the Colorado soldiers who did so much to save this 
 region to the Union. 
 
 "All honor to the First Colorado, that marched across 
 the trackless waste, braving its perils and burdens to check 
 Sibley's advance upon our beautiful treasuries. All honor 
 to the Second Colorado that protected the white settlements 
 from the butcheries of the redskins. All honor to the Third 
 Colorado for its great achievements in Kansas and Missouri. 
 
 "Most of those engaged in that war between brothers 
 have spread their tents on the eternal camping grounds. 
 Let us extol the survivors while they live ; let us mourn the 
 departed, while 
 
 " 'Glory guards, with solemn round, the bivouac of the dead.' " 
 * * * 
 
 In an address, delivered before the Sons of Colorado, 
 of which society Robert Steele was an honored member, in 
 March, 19 10, he paid a tribute to the cottonwood tree. 
 Referring to the double celebration in 1876 of the centen- 
 nial of the nation and the birth of the state, he said : "We 
 knew that there would be no such pomp and military display 
 here as we had seen in the East, but we did know the temper 
 of our people, and we knew that they were patriotic and 
 true, and that they would celebrate the occasion as only 
 loyal people can. We knew that there would be no lavish 
 display of palms and smilax, of the Marechal Niel, and of
 
 100 ROBERT WILBUR STEELE 
 
 rare and beautiful orchids here ; but we did know that from 
 the profuse gifts of Nature willing and loyal hands would 
 gather our own bluebell, our own flax, columbine, aster and 
 clematis, and withal, our choicest lily, and would entwine 
 with these gifts of Nature the Stars and Stripes and deco- 
 rate the homes and public places with these and our native 
 evergreen and cottonwood. 
 
 "Let me, right here, pay a tribute to the humble cotton- 
 wood. She is unpopular now ; her more beautiful and aris- 
 tocratic sisters have taken her place ; but she was, in her 
 time, the admired of all admirers. Responsive to our 
 desires, she swiftly beautified our new cities and towns; 
 she furnished the pioneer of the plains wood for his fire; 
 her boughs afforded him a means of decoration; her shade 
 gave him a retreat at noontime on the dreary way ; she stood 
 as a beacon inviting the thirsty traveler to refreshment and 
 rest; 'like the shadow of a great rock in a weary land,' she 
 was the refuge of man and beast. How proud she stands, 
 while looking down with scorn and contempt upon the ambi- 
 tious tenderfoot tree that has been wrecked and dismantled 
 by a late snow. She was the wise and faithful friend of 
 the pioneer, and the Sons of Colorado love her. 
 
 "And now let us. Sons of Colorado, remembering the 
 environment and associations of our state's birth, reaffirm 
 our allegiance to the cause of liberty; let us display the 
 national emblem on the state birthday; let us count him as 
 an enemy to be shunned who seeks to deprive us of our 
 liberties through the transgressions of the wicked, and as 
 we pay homage to the Kohinoor of nations let us pay hom- 
 age to the bright particular gem in the diadem of states. 
 
 " 'O, make Thou us, through centuries long, 
 In peace secure, in justice strong; 
 Around our gifts of freedom draw 
 The safeguards of Thy righteous law.' "
 
 UNOFFICIAL OPINIONS AND ACTIVITIES 101 
 
 So through the years Robert Steele, as he found oppor- 
 tunity, worked for the upbuilding of the community in 
 which he lived, for the maintenance of the American ideals 
 of citizenship, for patriotism and justice, for humanity and 
 civic righteousness among men.
 
 CHAPTER VII 
 
 THE RIGHT OF PERSONAL LIBERTY 
 
 "No freeman shall be taken or imprisoned or disseized or out- 
 lawed or banished or in any ways destroyed, nor will we pass upon 
 him nor will we send upon him unless by the lawful judgment of 
 his peers or by the law of the land." 
 
 — The Magna Charta, Section 32. 
 
 "In order to assert our rights, acknowledge our duties, and 
 proclaim the principles upon which our government is founded, we 
 declare: * * * 
 
 "That all persons shall be bailable by sufficient sureties, except 
 for capital oflFenses, when the proof is evident or the presumption 
 great ; 
 
 "That excessive bail shall not be required, nor excessive fines 
 be imposed, nor cruel and unusual punishments inflicted; 
 
 "That the privilege of the writ of habeas corpus shall never 
 be suspended, unless when, in case of rebellion or invasion, the 
 public safety may require it; 
 
 "That the military shall always be in strict subordination to 
 the civil power j * * * 
 
 "The trial by jury shall remain inviolate in criminal cases; 
 
 * * * 
 
 "That the people have the right peaceably to assemble for the 
 common good, and to apply to those invested with the powers of 
 government for the redress of grievances, by petition or remon- 
 strance ; 
 
 "That no person shall be deprived of life, liberty or property 
 without due process of law." 
 
 — Colorado Constitution, Bill of Rights. 
 
 "When we deny to one, however wicked, a right plainly guar- 
 anteed by the constitution, we take that same right from everyone. 
 
 * * * We cannot change the constitution to meet conditions. We 
 cannot deny liberty today and grant it tomorrow ; we cannot grant 
 it to those theretofore above suspicion and deny it to those suspected 
 of crime, for the constitution is for all men, 'for the favorite at 
 court, and for the countryman at plow," at all times and under all 
 circumstances." 
 
 — Justice Robert W. Steele, the decision in the Moyer case. 
 
 Humanity builds upon the failures as well as upon 
 the successes of former years. Each generation is the heir
 
 THE RIGHT OF PERSONAL LIBERTY IO3 
 
 of its predecessor, and human progress is made possible by 
 the fact that a great volume of established truth and mate- 
 rial accomplishment is the birthright of mankind. This 
 mass becomes the foundation and the instrument and to a 
 large degree the material of further progress. For each 
 individual to test by his own intelligence and experience 
 the accumulated store of human knowledge is obviously 
 impossible. It would be absurd for the men of any period 
 to refuse to accept all that they have not created and estab- 
 lished and proved for themselves. Yet if every belief of 
 general acceptance were never thereafter to be questioned, 
 if every theory commonly supposed to be proven were placed 
 beyond the reach of doubt, the world would be bound fast 
 to the body of error and progress would become impossible. 
 The exceptional individual, be he great reformer or mere 
 crank, never hesitates to question any belief or test any 
 truth, however well established. In the vast majority of 
 political experiments, naturally, the consensus of human 
 opinion is sustained, the conclusion of human experience is 
 justified. But in the rare exception error is overthrown, 
 ancient truth is restored or new wisdom is developed, and 
 humanity rises to a higher level because a single man dared 
 to hurl defiance in the face of a scornful and hostile world. 
 The highest wisdom of statesmanship often consists in 
 knowing what to maintain, what to surrender, and what to 
 accept from among the continual propositions of change. 
 
 There are periods when the spirit of reorganization 
 seems to be more than usually prevalent. The foundations 
 of social and political institutions are called in question. 
 Truths that have been commonly accepted as most obvious 
 are assailed with doubts. Startling pronouncements of new 
 truth or ancient error are proclaimed with vehement dog- 
 matism. The public ear is assailed on one side by the 
 joyous shouts of the prophets of a new era and on the other
 
 104 ROBERT WILBUR STEELE 
 
 by the lamentations of those that fear that the principles as 
 well as the institutions of law, order, justice and liberty are 
 being swept away. Such a period came in Colorado in the 
 closing years of the nineteenth and the early years of the 
 twentieth century. The same spirit of doubt, unrest and 
 disturbance was generally prevalent throughout the nation, 
 but there was developed out of the peculiar conditions exist- 
 ing in Colorado certain special features that impressed them- 
 selves with dramatic intensity upon the public attention. 
 The issues here presented involved the most fundamental 
 principles of government. Their passionate discussion 
 reached the stage of civil war. Their ultimate settlement 
 gave a broad and solid basis for future development and 
 constituted a very important step in political progress. 
 
 Two forces were strongly at work in those years, either 
 of which threatened the destruction of American institutions. 
 One of these forces, and the lesser in its danger to the state, 
 was that of lawlessness and anarchy as manifested in the 
 Cripple Creek strike of 1894, the Leadville strike and riot 
 of the same year, the disturbances and riot at Telluride in 
 1900, and the Cripple Creek war of 1903. However alarm- 
 ing the threat of these disorders may have appeared, they 
 never at any time held the possibility of lasting or perma- 
 nent injury to the structure of free institutions. Riot, 
 anarchy, violence and murder, theft and the destruction of 
 property, are criminal acts that ought to receive punishment. 
 They are hostile to the principle of government. They tend 
 toward the destruction of the social organization. But these 
 crimes could never become the structure of government. 
 They were local and temporary disorders, and, whatever of 
 injustice or of cruelty they involved in individual cases, 
 there was never the least danger that they would come to be 
 the regular and established order of things. Anarchy is not 
 government; it is the absence of government.
 
 THE RIGHT OF PERSONAL LIBERTY IO5 
 
 The threat that came from another source was quite 
 different. Events and conditions had tended to make the 
 structure of one of the two great political parties of the 
 state for a short time almost the personal property of a 
 single man. They had developed in Denver and in some 
 other counties a bi-partisan machine quite independent of 
 political principles. They had made it possible for a time 
 to defy the will of the majority of the party in the nomina- 
 tion of candidates and the will of the majority of the people 
 in matters of legislation. These things constituted a usurp- 
 ation rather than a destruction of government. The logical 
 consequence of a control of the party through machine poli- 
 tics was a domination of the state through machine govern- 
 ment. A permanent establishment of machine government 
 would be oligarchy and not democracy. Such a change 
 would involve a transformation of the principles as well as 
 the structure of the American republic. It would be a viola- 
 tion in fact and in theory of the central principle of Ameri- 
 canism, the rule of the people by the free will of the 
 majority. It would be a new form of government, the 
 permanent establishment of something else in place of the 
 American republic that was founded by the makers of the 
 constitution. 
 
 It is not necessary to consider, as some have done, that 
 individual men were moved by a deliberate purpose to the 
 overthrow of democratic institutions and to the establish- 
 ment of an altered system of government for the oppression 
 of their fellow men. The primary cause and condition was 
 that the spirit of change was strong in the minds of men, 
 that old forms had become outworn, that abuses had 
 grown intolerable, that two principles of government were 
 struggling for the mastery. To honest men of one way of 
 thinking it seemed that additional means of defense must 
 be provided in order to save society and government from
 
 106 ROBERT WILBUR STEELE 
 
 the attacks of rioters, incendiaries, plunderers, demagogues 
 and visionaries. Other men, equally honest, had the clearer 
 vision that the permanent safety of the republic could only 
 be secured by keeping the field of public activities forever 
 free from those barriers of class and privilege that had been 
 destroyed at a cost of tremendous effort and suffering in 
 ancient years and by maintaining every safeguard of the 
 people's rights and liberties that had been written into the 
 constitutions of the nation and the state. One class wished 
 to make permanent the conditions of machine politics ; the 
 other to overthrow evil practices and to restore the full 
 measure of popular self-government. 
 
 While the active forces of machine politics and gang 
 government were striving with apparent success to make 
 permanent their control of public power, the will of the 
 people was inclining more and more toward a radical reform 
 of the crying evils of politics. The use of public power 
 for personal and partisan advantage against the people's 
 will and interest, the persistent refusal to enact legislation 
 continually promised in party platforms, the nomination of 
 candidates in flagrant violation of the popular preference, 
 the use of party names and party principles as mere catch- 
 words in the game of machine politics, had at first disgusted 
 the people and later roused them to an earnest purpose. 
 
 Had there been enlisted on the side of machine govern- 
 ment only the machine bosses and their subordinates, 
 together with those persons having a selfish interest in 
 securing special favors or exemptions from a government 
 which they in some way controlled, the attack upon Ameri- 
 can institutions from this side would have been scarcely 
 more dangerous than was that of the socialistic visionaries, 
 the demagogues and the rioters. The masses of American 
 citizenship, conservative, intensely patriotic, devoted to law 
 and order, were easily shocked by the vision of anarchy
 
 THE RIGHT OF PERSONAL LIBERTY IO7 
 
 revealed in the disorders at Cripple Creek, Leadville and 
 Telluride. In approving extra-constitutional measures to 
 defend the state against the flagrant assault of men that 
 openly professed an exultant disregard of the rights of 
 property and person, too many sober-minded citizens over- 
 looked the fact that they were yielding their own constitu- 
 tional rights and liberties to usurpers who were taking 
 advantage of every opportunity to strengthen their hold 
 upon the public power. 
 
 Whether unscrupulous politicians and others conspired 
 to promote disorder and sedition, from which they hoped 
 to profit, is a minor point. The important thing is that 
 the lawlessness and crimes attending the strikes in the 
 mining districts were used in the effort to fix more firmly 
 upon the people the bonds of machine government. If, on 
 the other side, men without any participation in criminality 
 or sympathy with lawlessness were led into a defense of 
 lawbreakers, or into a violent resistance of those who were 
 misusing their rights of property or their possessions of 
 public power, that was only a natural incident of this 
 troublous time. 
 
 The culmination of the struggle between these forces 
 of change was reached in the ten-year period from 1900 to 
 1910. During that time Robert W. Steele was a justice of 
 the Supreme Court of Colorado, and it was while he held 
 that high position that four cases were presented to the 
 court which involved the most fundamental and elementary 
 principles of personal liberty and of the American system 
 of free government. It is a matter of history rather than 
 of political opinion that the Supreme Court of the state 
 was packed by political machine methods in order to secure 
 decisions favorable to certain interests. There has been 
 argument as to whether this procedure was justifiable under 
 all the circumstances, but no serious denial of the fact. In
 
 108 ROBERT WILBUR STEELE 
 
 his opinions in these cases, Justice Steele was in the minor- 
 ity, not because there were no honest judges among those 
 that held a contrary opinion, but because the practices of 
 machine politics had resulted in the appointment or election 
 of a majority of judges who were known to favor political 
 principles and methods to which Justice Steele was opposed 
 and which were inconsistent with American free government 
 by the will of the people. 
 
 Robert Steele came to the Supreme Court direct from 
 his work among the boys and girls, the widows and orphans, 
 the insane, the unhappily married and others that had bene- 
 fited by his care and interest in the County Court. As was 
 his invariable custom, he made no active effort to secure the 
 nomination. Under the political conditions then existing, 
 a fusion ticket was necessary. The place of Supreme judge 
 was allotted to the Silver Republicans, and the name of 
 Robert W. Steele was presented to the convention by his 
 friends of that party. He was nominated by acclamation, 
 and in the following November was elected by a large 
 majority. His election was generally conceded from the 
 day of his nomination. His opponent on the regular Repub- 
 lican ticket was G. C. Battels, also a Denver boy and a man 
 of the highest standing as to character and ability. Between 
 him and Judge Steele from early years a warm and close 
 friendship had existed, and either of the candidates would 
 have been glad on personal grounds to see victory incline 
 to his opponent. Under the political conditions of that year, 
 however, Mr. Bartels accepted the nomination mainly as a 
 matter of form and made no active canvass. 
 
 Commenting upon Judge Steele's nomination, the 
 Rocky Mountain News of September 14, 1900, said: 
 
 "Judge Robert W. Steele, candidate for supreme judge, is at 
 present county judge of Arapahoe County, an office which he has 
 filled to the satisfaction of the bar and the public. As county judge 
 he has charge of all estates, and his record is absolutely clean.
 
 THE RIGHT OF PERSONAL LIBERTY IO9 
 
 Of Studious temperament and judicial mind, Mr. Steele has grown 
 in every direction since his elevation to the bench, and in the highest 
 court of the state will bring ability, discernment and painstaking 
 labor to the determination of every case." 
 
 The measure of Judge Steele's popularity at this time 
 is well evidenced by the following comment from George s 
 Weekly, a Denver newspaper, of January 12, 1901 : 
 
 "We believe that Bob Steele is going to make one of the best 
 judges that ever sat upon the Supreme bench. It is a fact pretty 
 generally conceded that Bob is going to do right as far as he knows 
 how, and we don't care if such men occasionally make mistakes. 
 The mistakes we object to, and the class of judges we don't like, 
 are the judges who sit upon the bench and make decisions because 
 they are paid to make them, or because their own personal interests 
 demand them to make unjust decisions. We don't believe that Judge 
 Steele will ever hand down a decision that does not agree with his 
 conscience, and we look forward to a season of justice from this 
 source that will be gratifying. Bob has a host of friends among the 
 young men of this state, and they all wish him well, and if he 
 discharges' his duty as they all think he will, there are higher honors 
 in store for him. The state of Colorado is looking for young men 
 of his class. They are needed." 
 
 Robert Steele did not go into the Supreme Court as a 
 political partisan, nor as the representative of any class 
 among the people of the state. He went there as the repre- 
 sentative of the people among whom he had grown to man- 
 hood, whom he knew and by whom he was known. He 
 was elected by citizens who had implicit confidence in his 
 integrity and his patriotism. He accepted his nomination 
 and election modestly, distrusting his own ability and merit, 
 doubtful of his own worthiness for the honor that had been 
 conferred upon him, but fully determined to do everything 
 in his power to maintain the high regard of his fellow 
 citizens, and, above all, to hold fast to his own clear ideals 
 of civic loyalty and righteousness. 
 
 Clear of partisan entanglements, free of class preju- 
 dice, fresh from the people, and without even that profes- 
 sionally judicial bias that comes from long association with
 
 110 ROBERT WILBUR STEELE 
 
 the upper courts of law, with unspotted integrity, with 
 intense patriotism and with broad and impartial humanity, 
 Justice Steele entered upon the duties of the high position 
 to which destiny and the voice of the people had called him. 
 But he had even more than those qualihcations for his task. 
 He had a judicial mind, unimpassioned and impartial. He 
 entertained no prejudices. Rich or poor, proud or humble, 
 powerful or weak, all men stood upon an equal footing 
 when they came before him, and he judged them according 
 to the three great principles of eternal justice: law and 
 equity and mercy. He never usurped powers to which he 
 was not fully entitled, but he used the authority and the 
 discretion that the laws wisely allow to the judge, according 
 to the spirit of the law, for justice and humanity. 
 
 Above all, he had that instinctive perception of right, 
 that intuitive apprehension of equity, that immediate grasp 
 of the fundamental principles involved in any matter pre- 
 sented to him, which constitute, in the highest degree, the 
 proper qualification for the judge of a court of last resort. 
 
 Having reached his conclusion according to the best 
 measure of his intellect and conscience, he never hesitated 
 to maintain it against whatever opposition it might encoun- 
 ter. He was always ready to consider the opinions of other 
 men. He often sought counsel. But, when his mind was 
 made up, he stood for what he believed to be right, regard- 
 less of all save his clear sense of duty to the people and of 
 responsibility in the high office he held. 
 
 Of all the cases that came before him in the Supreme 
 Court, the Moyer habeas corpus case was the most impor- 
 tant, both as regards the fundamental constitutional prin- 
 ciples involved and as regards its bearing upon the problems 
 foremost in the public mind during this period. The Moyer 
 case immediately concerned the security of an individual 
 from arrest and imprisonment by the arbitrary act of a
 
 THE RIGHT OF PERSONAL LIBERTY 111 
 
 military authority. The circumstances of that act seemed 
 to justify it to many minds as a necessary measure of the 
 enforcement of public authority, and of protection for the 
 public safety. Justice Steele's faultless logic reached 
 through the entanglement of local conditions and temporary 
 disorder, and recognized in the overthrow of the constitu- 
 tional safeguards of the bill of rights the abandonment 
 of the innermost citadel of liberty, the relinquishment of 
 one of the greatest prizes of the long struggle for popular 
 self-government, the surrender of a weapon with which the 
 minority might, at another time and under other conditions, 
 effectuate its overthrow of the American republic and estab- 
 lish an oligarchy by military power. 
 
 The dissenting opinion of Justice Steele in the Moyer 
 case will be found printed in full as the next chapter of 
 this book. It is so comprehensive in its statement of facts, 
 of principles and of authorities that no additional word 
 remains to be said upon those matters. The most favorable 
 comment that can be made upon the majority decision is 
 that it ignored the constitution and misrepresented the 
 authorities in order to serve a fancied passing need of 
 public safety. The least that can be said of Justice Steele's 
 opinion is that it is a clear, complete and unanswerable 
 argument in defense of a principle that runs back to the 
 beginning of a constitutional bulwark for personal liberty. 
 It is, moreover, a terrific arraignment of the forces then 
 operating toward the destruction of the basic principles of 
 American government, and a revelation to the people of the 
 dangerous situation in which they were at that time. 
 
 Justice Steele's opinion found an immediate response 
 throughout the state and the nation. No other expression of 
 a Colorado court was ever so widely heralded or commented 
 upon, and few decisions of any court have been more gen- 
 erally repeated and approved. Its central declaration, that
 
 112 ROBERT WILBUR STEELE 
 
 the citizen is safeguarded by constitutional provision against 
 arbitrary imprisonment by the military power, with its 
 attendant declarations that the military must always be 
 subordinate to the civil power, and that the legislature and 
 not the executive has the authority to declare the existence 
 of insurrection, were everywhere recognized as fundamental 
 to personal liberty and as essential to the maintenance of 
 the republic. Too many states were engaged in struggles 
 similar to that of Colorado to make it possible for the voice 
 of approval to be universal. 
 
 From among the many newspaper comments upon the 
 opinion it is possible to select only a few, choosing those 
 of special significance. 
 
 From the Detroit (Mich.) Free Press: 
 
 In the turmoil and strife that has tended Colorado for many 
 weary months, the opinion of Judge Steele shines through the smoke 
 and carnage like a ray of hope. He has refused to be blinded to 
 the purposes for which the constitutional safeguards of liberty and 
 independence were made, and, despite the distracting influences, he 
 has kept in mind the spirit of our institutions and the necessity for 
 the fullest measure of liberty consistent with the maintenance of 
 government. * » * Despite the appalling conditions, there has 
 never been any proof that it was necessary either to suspend the 
 writ of habeas corpus or to declare martial law. The protection of 
 the militia could have been afforded, peace and order maintained, 
 riots quelled and good citizenship vindicated without resort to any 
 of the methods that have aroused general indignation and have been 
 such a despotic abuse of power as has never been equaled in free 
 America. The strikers, even in the affected districts, have always 
 been in the minority. To deprive other citizens of the protection of 
 the law, to override the civil authorities and to utilize such drastic 
 measures as deportation has been tyrannical, and as a precedent 
 under judicial interpretation a misuse of power that is alarming. 
 The decision of the Colorado Supreme Court would not be regarded 
 as good law in any other state of the Union. Judge Steele's dissent- 
 ing opinion, on the other hand, stands as a clear and reasonable 
 interpretation in accord with the spirit of our institutions and 
 reassuring that Colorado has yet within its borders one man wholly 
 sane and cool-headed. 
 
 From the Pittsburgh (Fa.) Dispatch: 
 
 It is regrettable that the opinion of Justice Steele becomes only 
 a part of the record in the Moyer habeas corpus case, while a decree
 
 THE RIGHT OF PERSONAL LIBERTY II3 
 
 was based upon the decision of his two colleagues. * * * What 
 American can quarrel with the postulate that Moyer, of whatever 
 crime guilty, demands specified charge and due trial? Even now 
 he rests in some jail without further reason than that a governor 
 in exercising military power has abdicated civil, a subordination of 
 one to the other, the reverse of that which he took an oath to uphold. 
 Sowing of dragon's teeth the whole miserable Colorado story has 
 been. Foreign journals are commenting upon it with amazement 
 and lack of comprehension, and in this bewilderment they do not 
 differ from citizens in America. 
 
 From the Cleveland (Ohio) Leader: 
 
 Although he was the only justice to dissent from the recent 
 decision of the Colorado Supreme Court sustaining the governor in 
 the exercise of arbitrary power, Justice Robert W. Steele is undoubt- 
 edly right. Surely his dissenting opinion, which has just been pub- 
 lished, after nearly a month of careful consideration, will meet with 
 the approval of all fair-minded and liberty-loving people. 
 
 From the Duluth (Minn.) Herald: 
 
 Justice Steele of the Colorado Supreme Court stands alone 
 among the judges in his opposition to the arbitrary and unconstitu- 
 tional acts of Governor Peabody. But one man with God on his 
 side is in the majority, and it will be demonstrated in the final 
 show-down that Judge Steele is with a majority of the people of 
 Colorado and of the United States. 
 
 From the New York Evening Post: 
 
 Justice Steele's opinion emphasizes an open question which 
 stands much in need of settlement, namely, the powers of the courts 
 during temporary military control of a district. The decision of the 
 Colorado Supreme Court seems merely to have evaded the problem. 
 
 From the Denver (Colo.) Rocky Mountain News: 
 
 The document will meet with the approval of nine out of ten 
 of the bar of Colorado and will rank with the opinions of the most 
 learned judges of England and America in cases involving the 
 great constitutional issues of personal liberty. 
 
 The general publication of Justice Steele's opinion in 
 the newspapers brought to him a host of letters, some from 
 old friends, many from lawyers in Colorado and elsewhere, 
 and a large number from total strangers who had no other 
 purpose than to express their approval of a decision that 
 was primarily a defense of human liberty, and of a judge
 
 114 ROBERT WILBUR STEELE 
 
 that had clearly seen the right and bravely dared to main- 
 tain it. Only a few of these may be quoted here to indicate 
 how the decision was regarded by the men of that time. 
 From an old friend : 
 
 My Dear Bob — I have just finished reading your opinion in the 
 Moyer case. Have read it all very carefully — some paragraphs 
 several times. I was fully prepared to be interested, but I have 
 been more than interested — very much impressed. 1 am a little 
 afraid that I have shared in a more or less common Denver feeling 
 that Moyer is a dangerous man and that it was excusable to stretch 
 the law a bit to hold him. I am also somewhat prejudiced against 
 union men. 
 
 But I have a wholesome respect for what is right, too, even for 
 those who do not deserve any favors, and I must say that your 
 presentation of the right and wrong of this situation is simply 
 unanswerable. It reminds me of what I said this afternoon, viz.: 
 That you see the right more clearly than other people do, and you 
 have the courage to express your views without dodging. 
 
 I cannot doubt that both the governor and the other justices 
 knew from the first that the habeas corpus privilege could not be 
 suspended. But they did not want to face that view of the situation, 
 and they will not face it now. But it was there — fairly and squarely 
 — even though they shut their eyes to it. 
 
 I am sure your decision is the only law that will stand the 
 approval of time, and the only one that will live. I think you will 
 be proud of it as long as you live, and your children and grand- 
 children will be proud of it. 
 
 It takes a clear head and a sound conscience and a courageous 
 heart to take a stand like that in such a time, but it was right, and 
 it will grow, and the more I think of it the prouder I am that you 
 did it. It is the event of your lifetime up to date. 
 
 From a Denver lawyer : 
 
 My Dear Judge — Dissenting opinions, though not immediately 
 controlling, sometimes work both through unseen and practical 
 influences toward the accomplishment of great results. In questions 
 of great public moment, affecting life or liberty, judicial decisions 
 inspire the keenest interest and vigorous protests against palpable 
 fallacies sink deep into the public conscience, where, taking root, 
 they spring ultimately into life and vigor. We have had instances 
 of this sort in the past and will have them in the future. It was 
 the dissenting opinion in the Dred Scott case which gave hope to 
 the nation and from which ultimate deliverance came. And so in 
 time to come the Moyer case will be known, not by what the court 
 decided, but by the magnificent protest you have registered in the 
 cause of right and justice. I feel that you have spoken for us all, 
 that you have shown some of the depths of the abyss into which the
 
 THE RIGHT OF PERSONAL LIBERTY II5 
 
 majority opinion is haling us. And I know that those who read and 
 ponder upon it must be convinced. May you live long to adorn the 
 place you so nobly fill, is the earnest prayer of 
 
 Your Friend. 
 
 From another lawyer : 
 
 My Dear Judge — I have just finished reading your dissenting 
 opinion in the Moyer case, and wish to congratulate you upon its 
 convincing presentation of the law. I feel that the people of the 
 entire state are to be congratulated in having at least one member 
 of our Supreme Court who fearlessly makes a stand in defense of 
 those personal liberties of our citizens for which our republican 
 form of government was founded and preserved. 
 
 I cannot but feel that your opinion will live as a landmark in 
 judicial decisions when the majority opinion of the court has been 
 either forgotten or mentioned as a mere by-word. 
 
 You have handed down what I consider one of the greatest 
 opinions ever delivered by our Supreme Court and upon a question 
 that the majority opinion has not settled to the contrary and which 
 never will be settled until settled right. 
 
 The people of this state will surely never set their seal of 
 approval upon the doctrine of absolutism and despotism announced 
 in the majority opinion, but I am firmly convinced they will sustain 
 and support the principles so clearly and logically enunciated in 
 your splendid opinion. Sincerely yours, 
 
 From a Denver business man : 
 
 My Dear Judge — I know as well as you do that righteous and 
 just actions always return their full measure of reward to the actor. 
 Therefore, I know that, in your judgment in the Moyer case, you 
 did complete justice to yourself and your country, and therefore need 
 no praise of ours. Still, we cannot suppress our desire to thank you, 
 as sincerely as words can be made, to express our gratitude to you 
 for the good faith to your constituency, and the appreciation of 
 justice and equity and the foundation principles upon which our 
 government must survive, if at all, displayed in that decision. 
 
 Trusting that every blessing that can follow such righteous 
 action will come to you, as ever, 
 
 From a former Denver resident : 
 
 Portland, Ore., July 2, 1904. 
 My Dear Judge — Will you permit a good friend, well wisher 
 and admirer, even though he has left Colorado, to extend his con- 
 gratulations to you on the extremely courageous, clear and able 
 opinion which you rendered yesterday in the Moyer case? It will 
 do more for Colorado than the building of the Moffat Road, for it 
 strikes down deep into the fundamentals; and, coming from a judge 
 of a court of last resort, even though it be a minority opinion, it 
 shows a perception of safe, sane and constitutional methods that is
 
 Il6 ROBERT WILBUR STEELE 
 
 peculiarly refreshing and hopeful at a time when so many people 
 seem hopelessly adrift from their moorings. 
 Yours very truly, 
 
 An opinion from St. Louis : 
 
 St. Louis, July 6, 1904. 
 
 Dear Sir — I have just read your dissenting opinion in fhe Moyer 
 case and take this opportunity to say that, in my opinion, it is an 
 unanswerable exposition of what the law in our state was, and what 
 it should be. 
 
 I regard the decision of the majority as a calamity, and cannot 
 believe that it was well considered in all of its bearings upon the 
 future. I am highly gratified that your dissenting opinion is so full 
 that it, for all time, shows the law as the forefathers settled it and 
 makes any further citation of authority unnecessary. 
 Sincerely yours. 
 
 From a prominent citizen of Kansas : 
 
 Versailles, Mo., July 2, 1904. 
 My Dear Sir — As an American citizen who loves justice and 
 liberty, I desire to thank you for your unanswerable dissenting 
 opinion in the Moyer case. I am not a miner, nor am I a member 
 of any labor organization, but I have no hesitancy in saying that, 
 in my judgment — and I think it is the opinion of a large majority 
 of the fair-minded people of this country — the action of Governor 
 Peabody is the most infamous and outrageous assault upon the 
 constitution and liberties of the people ever perpetrated by any 
 official in the United States. The management of the labor troubles 
 in Colorado by the governor has made more anarchists during the 
 past six months than have come to this country from foreign lands 
 during the past ten years. Very truly yours. 
 
 From a lawyer of Fort Wayne, Indiana : 
 
 I read last night with great pleasure the opinion of Justice 
 Robert W. Steele on the suspension of the writ of habeas corpus by 
 Governor Peabody, and it is one of the ablest and most eloquent 
 dissenting opinions I have ever read and the conclusion reached by 
 the learned judge meets my hearty approval. I note with some 
 pride that our Supreme Court in two cases in 1863 and 1864 fully 
 supports Judge Steele. In years to come this opinion by Judge 
 Steele will be the law of Colorado also, and if you and I live a 
 reasonable time we will see this opinion cited as one of the strong- 
 est on the suspension of the writ of habeas corpus, and will prevent 
 oppression by unscrupulous or designing enemies of our government. 
 
 A letter from Brooklyn, N. Y. : 
 
 My Dear Sir — Accept congratulations upon your dissenting 
 opinion rendered in reference to refusing a writ of habeas corpus
 
 THE RIGHT OF PERSONAL LIBERTY 11 7 
 
 to Charles H. Moyer, president of the Federation of Miners, who 
 was detained and held as a military prisoner by order of the gover- 
 nor of your commonwealth. Permit me to state that I am in no way 
 interested in the matter, save from a legal and constitutional inter- 
 pretation of the law. VVe had a discussion at my office very recently 
 relative to dissenting opinions. The majority of the attorneys were 
 in favor of having no dissenting opinions written or made public, 
 they being of the opinion that the majority should determine and 
 rule the decision, and that the public should not be made aware of 
 any dissent in the final ruling of the highest courts of record of the 
 state. 
 
 Your action and opinion so recently rendered bears me out in 
 my argument, and upholds the position which I took in the recent 
 interview, and I lost no time in presenting your opinion in justifica- 
 tion of my argument. 
 
 I would further state that I fully believe that your opinion 
 would be upheld and sustained by the United States Supreme Court. 
 
 Again congratulating you upon your wisdom, keen judgment 
 and legal decision, I remain with respect, 
 
 Yours very sincerely. 
 
 Possibly the most notable tribute to the strength and 
 convincing logic of the minority opinion was that of Chief 
 Justice Gabbert, who delivered the original opinion of the 
 court, and who considered it advisable, after the minority 
 opinion had been presented, to tile an extraordinary and 
 supplementary opinion, in which he practically admits the 
 overwhelming proof of Justice Steele's main points, but 
 maintains the amazing and monstrous doctrine that, though 
 the governor may not have the power to declare martial 
 law or to suspend the privilege of the writ of habeas corpus, 
 he and his military subordinates have the right to do any- 
 thiiig they may please to do for the alleged purpose of 
 suppressing insurrection, and the judicial department has 
 no right to call them to account for their actions. 
 
 "It is not held," said the chief justice in his supplementar}^ 
 opinion, "that the governor has the power to suspend the writ of 
 habeas corpus or declare martial law. No opinion is expressed on 
 either of these propositions, and hence all that is said in the dissent- 
 ing opinion on these subjects and the voluminous excerpts are 
 foreign to the questions involved. It is determined that the peti- 
 tioner was not entitled to his discharge, not because the privilege of 
 the writ of habeas corpus was suspended, or the governor had
 
 1 l8 ROBERT WILBUR STEELE 
 
 declared martial law, but for the reason that the governor, through 
 his subordinate officers, was exercising a power conferred upon him 
 by the fundamental law of the state. * * * This power and the 
 conditions under which it may be exercised is, by the fundamental 
 law of the state, vested in the governor and in him alone. If the 
 judicial department should undertake to review the facts upon 
 which the governor acted, it would be a direct interference with his 
 authority and an assumption of power on the part of the judiciary 
 which does not exist. * * * The constitution has clothed the 
 governor with the power to take the steps he did, and he cannot be 
 called to account by the judicial department for this action, nor can 
 the latter inquire into or determine whether or not the conditions 
 existed upon which he based his action. That is a matter which, 
 in the circumstances of the case, the chief executive must determine 
 for himself, and his subordinates, acting in obedience to his orders, 
 must determine for themselves, and when so determined, is con- 
 clusive."
 
 CHAPTER VIII 
 
 THE OPINION IN THE MOYER CASE 
 
 The following is the complete text of the opinion of 
 Justice Robert W. Steele, of the Supreme Court of Colorado, 
 in the Moyer habeas corpus case, as handed down by him 
 June 30, 1904 (35 Colo., p. 170) : 
 
 No person who has the slightest claim to respectability 
 should hesitate to approve the action of the governor in 
 enforcing the law, and I am willing to uphold him and to 
 applaud him so long as he keeps within the lines of the 
 constitution. But I am not willing to uphold him when, 
 in my opinion, he breaks down the barriers erected by the 
 people for their protection, nor am I willing to accord to 
 the constitution elastic properties for the purpose of sustain- 
 ing him, nor to join in the establishment of a precedent 
 which will not apply to other classes or other conditions 
 when another governor undertakes to exercise the same arbi- 
 trary power. 
 
 I am not willing to concede the power claimed by the 
 governor and exercised by him, because, in my opinion, such 
 power is not vested in him by the constitution. The people 
 could never have intended to erect such an engine of 
 oppression. 
 
 It follows, of course, that if the present executive is 
 the sole judge of the conditions which can call into action 
 the military power of the government, and can exercise all 
 means necessary to effectually abate the conditions, and the 
 judicial department cannot inquire into the legality of his 
 acts, that the next governor may by his edict exercise the 
 same arbitrary power. If the military authority may deport 
 the miners this year it can deport the farmers next year.
 
 120 ROBERT WILBUR STEELE 
 
 If a Strike which is not a rebellion must be so regarded 
 because the governor says it is, then any condition must 
 be regarded as a rebellion^ which the governor declares to 
 be such; and if any condition must be regarded as a rebel- 
 lion because the governor says so, then any county in the 
 state may be declared to be in a state of rebellion, whether 
 a rebellion exists or not, and every citizen subjected to 
 arbitrary arrest and detention at the will and pleasure of 
 the head of the executive department. We may then, with 
 each succeeding change in the executive branch of the gov- 
 ernment, have class arrayed against class, and interest 
 against interest; and we shall depend for our liberty, not 
 upon the constitution, but upon the grace and favor of the 
 governor and his military subordinates. 
 
 In no other case presented to this court have principles 
 so important and far-reaching been involved. It was elab- 
 orately and ably argued, and the position of counsel was 
 clearly defined; yet the court has evaded the fundamental 
 questions presented, and has based its decision upon theories 
 long ago determined by jurists and statesmen to be illogical 
 and false. 
 
 On the part of the petitioner it was urged that he was 
 illegally restrained of his liberty, that a court of competent 
 jurisdiction had ordered him released on habeas corpus, and 
 that the military authorities had refused to release him and 
 had refused to permit the civil authorities to serve process 
 upon them. 
 
 On behalf of the military officers, it was said that they 
 had been ordered by the governor not to release upon writ 
 of habeas corpus, and on behalf of the governor it was 
 contended that he had declared the county of San Miguel 
 to be in a state of insurrection and rebellion, and that under 
 such conditions he had authority to enforce martial law and 
 to suspend the privilege of the writ of habeas corpus.
 
 THE OPINION IN THE MOVER CASE 121 
 
 As these propositions strike at the very foundation of 
 our government, as the court has evaded a consideration of 
 them, and as I believe they present the only questions in 
 the case, I shall discuss them and ignore for the present a 
 consideration of the opinion, with the observation that it 
 establishes a precedent that is so repugnant to my notions 
 of civil liberty, so antagonistic to my ideas of a republican 
 form of government and so shocking to my sense of pro- 
 priety and justice that I cannot properly characterize it. 
 
 We should have before us the facts. The governor of 
 the state, on March 23, 1904, by his proclamation, said: 
 
 "Whereas, there exists in San Miguel County, Colorado, a 
 certain class of individuals who are acting in conjunction with a 
 certain large number of persons outside of said county, who are 
 fully armed and acting together; and, 
 
 "Whereas, open and public threats have been made to resist 
 the laws of this state and offer violence to citizens and property 
 located in San Miguel County; and, 
 
 "Whereas, at divers and sundry other times various crimes 
 have been committed in San Miguel County, by or with the aid and 
 under the direction of said vicious and lawless persons; and, 
 
 "Whereas, threats, intimidations and violence are threatened 
 and believed will be resorted to by said lawless class of individ- 
 uals; and, 
 
 "Whereas, it is stated to me by the sheriff of said San Miguel 
 County that these forces within and without said county are about 
 to join forces within said San Miguel County, for the purpose of 
 destroying property and inflicting personal injuries upon the citizens 
 of said county; and, 
 
 "Whereas, by reason of such lawlessness and disturbances and 
 threatened acts of violence, the civil authorities are unable to cope 
 with the situation ; 
 
 "Now, therefore, I, James H. Peabody, governor and com- 
 mander-in-chief of the military forces, by virtue of the power and 
 authority in me vested, do hereby proclaim and declare the said 
 county of San Miguel, in the state of Colorado, to be in a state of 
 insurrection and rebellion." 
 
 In the petition for the writ of habeas corpus filed herein 
 the said proclamation is set forth, and it is alleged that the 
 petitioner, while he was in the county of Ouray, was 
 arrested upon a warrant issued by a justice of the peace of
 
 122 ROBERT WILBUR STEELE 
 
 said San Miguel County, and was conveyed to the county 
 of San Miguel, where he gave bond in the penal sum of 
 $500 for his appearance before the District Court of said 
 county on May 10, 1904; that upon his discharge from the 
 custody of the sheriff he was arrested by the adjutant gen- 
 eral of the state, who was then in the county of San Miguel 
 as the commander of a portion of the national guard of the 
 state; that upon March 30, 1904, a writ of habeas corpus 
 was issued by the judge of the District Court within and 
 for the county of Montrose, returnable on April 11, 1904; 
 that upon the said nth day of April, no return having 
 been made to the writ, the court ordered the discharge of 
 the petitioner, but, notwithstanding the order of the court, 
 the said respondents refused to discharge him; that the 
 petitioner is not guilty of any offense, has violated no law, 
 and that no indictment, information or complaint has been 
 filed against him except the complaint mentioned under 
 which he was admitted to bail ; that the charge in the said 
 complaint is without foundation, and the said respondents 
 have refused to file complaint against the petitioner, and 
 have refused to inform him of the charge against him. 
 
 This court thereupon issued a writ returnable April 
 21 following. 
 
 On the return day of the writ the respondent, Sherman 
 Bell, produced the body of the petitioner. At the same time 
 a return to the writ was made, in which the jurisdiction of 
 the court is challenged. The return sets forth the procla- 
 mation of the governor, and states that the respondent, 
 having been so ordered by the governor, proceeded to the 
 county of San Miguel with a portion of the national guard 
 of the state; that upon his arrival at the county of San 
 Miguel, he had good reason to believe and did and does in 
 good faith believe, and upon due inquiry in the premises 
 became personally and officially fully satisfied and con-
 
 THE OPINION IN THE MOVER CASE I23 
 
 vinced that the petitioner had been and, if discharged from 
 arrest, would continue to be an active participant in foment- 
 ing and keeping alive the said condition of insurrection and 
 rebellion, * * * and was and is a prominent leader of the 
 bands of lawless men engaged in the acts of insurrection and 
 crime mentioned in the proclamation of the governor; and 
 that, in order to accomplish the suppression of said state of 
 insurrection and rebellion, it was and is, in the judgment 
 of said governor and the respondent, absolutely necessary to 
 arrest, detain and for some time to come to restrain the body 
 of the said Charles H. Moyer, in the course of an absolutely 
 necessary step in the matter of suppressing said state of 
 insurrection and rebellion. * * * That the exigencies 
 of the military situation imperatively required the further 
 detention of said Moyer to prevent him from lending aid, 
 comfort, direction, instructions and commands to the said 
 lawless persons. 
 
 The reply denies that there exists in the county of San 
 Miguel a state of either insurrection or rebellion, and states 
 that a large number of miners, having been deported from 
 the county, had announced their intention of returning 
 peaceably to their homes, and further announced that to 
 that end they would resist any further interference with 
 their persons and would resist any attempt at their re-depor- 
 tation ; but that their mission in returning was one of peace, 
 and no force whatever would be used by them except 
 in defense of their persons from attack by the mob. That 
 this petitioner has neither been at any time, nor does he 
 now, nor would he continue to be, an active participant 
 either in fomenting or keeping alive any condition of 
 insurrection or rebellion, and that he has at all times con- 
 ducted himself in strict conformity to the laws of the land, 
 and has advised, in his capacity as president of the Western 
 Federation of Miners, that no active lawlessness should
 
 124 ROBERT WILBUR STEELE 
 
 occur upon the part of any member of said Federation, to 
 the end that no reflection might be cast upon said organi- 
 zation. 
 
 These facts present for determination the question : 
 Is the petitioner, under the conditions shown to exist, 
 entitled to the privilege of the writ of habeas corpus*? If 
 he is detained by due process of law, he is not entitled to a 
 discharge under the writ; if he is not so detained, he is 
 entitled to be discharged. If the privilege of the writ has 
 been suspended by proper authority generally or in his 
 particular case, he is not entitled to be discharged during 
 the period of suspension. The distinction is recognized 
 between the suspension of the privilege of the writ and the 
 right of a military officer to refuse obedience to its com- 
 mands. Judge Dixon, when chief justice of the Supreme 
 Court of Wisconsin, and during the period of the Civil 
 War, said : 
 
 "I agree that there is a plain distinction between the suspension 
 of the writ in the sense of the clause of the constitution, and the 
 right of a military commander to refuse obedience when justified 
 b}' the exigencies of war or the ipso facto suspension which takes 
 place when martial law actually exists. * * * But this kind of 
 suspension, which comes with war and exists without proclamation 
 or other act, is limited by the necessities of war. It applies only to 
 cases where the demands upon the officer's time are such that he 
 cannot, consistently with his superior military duty, yield obedience 
 to the mandates of the civil authorities, and to cases arising within 
 districts which are properly subjected to martial law." {In re 
 Kemp, 16 Wisconsin, 368.) 
 
 The return does not justify the detention of the pris- 
 oner upon the ground that the military exigencies are such 
 that the respondent cannot leave his command for the pur- 
 pose of yielding obedience to the writ. Moreover, it is 
 common knowledge that the commander of the army of 
 the San Miguel, when executive functions did not require 
 his attendance in other parts of the Union, has been at the 
 capital much of the time. The return not showing a state
 
 Robert Wilbur Steele 
 (From photograph, 1883)
 
 THE OPINION IN THE MOVER CASE 125 
 
 of facts which justifies disobedience of the writ, the peti- 
 tioner is entitled to his discharge unless the return shows 
 that he is held by due process of law. In the return it is 
 stated that the respondent has been ordered by the execu- 
 tive head of the state to refuse to surrender the petitioner, 
 upon writ of habeas corpus or otherwise ; and his counsel 
 contend that the governor, under the constitution, has the 
 power to suspend the privilege of the writ and that in this 
 case he has virtually done so, although no proclamation 
 that he has done so has been made and although he does 
 not expressly say so in the return. If the power to suspend 
 the privilege of the writ is vested in the executive head of 
 the state, it seems to me that it is not important how or in 
 what manner it is exercised. But it is so clear that the 
 power to suspend the privilege of the writ of habeas corpus 
 is not lodged in the executive branch of the government 
 that it seems like a waste of time to discuss the question. 
 If there is any one question positively and finally settled, 
 it is that the power to suspend the privilege of the writ of 
 habeas corpus is solely a legislative power. It is based 
 upon a very simple proposition, which is, that as the privi- 
 lege of the writ is granted by law, it requires a law to 
 suspend that privilege, and that the executive department 
 cannot legislate. But let us see what the jurists, the states- 
 men and the text writers have to say upon this subject. 
 
 Bollman and Swartout had been arrested at New 
 Orleans by General Wilkinson charged with having been 
 engaged with Burr in a treasonable conspiracy against the 
 United States. They were discharged by the Supreme Court 
 of the United States upon the ground that there was not 
 sufficient evidence to hold them upon the charge of treason. 
 In the course of the opinion in that case, Chief Justice 
 Marshall, in speaking of the power vested in the court to 
 issue the writ of habeas corpus, said :
 
 126 ROBERT WILBUR STEELE 
 
 "If at any time the public safety should require the suspension 
 of the powers vested by this act in the courts of the United States, 
 it is for the legislature to say so. That question depends on political 
 considerations on which the legislature is to decide. Until the 
 legislative will be expressed, this court can only see its dut)-, and 
 must obey the law." (4 Cranch, 23.) 
 
 "Joseph Story, a justice of the Supreme Court, says, in his work 
 on the constitution : 
 
 " 'It is obvious that cases of a peculiar emergency may arise 
 which may justify — nay, even require — the temporary suspension of 
 any right to the writ. But as it has frequently happened in foreign 
 countries, and even in England, that the writ has, upon various 
 pretexts and occasions, been suspended, whereby persons appre- 
 hended upon suspicion have suffered a long imprisonment, sometimes 
 from design, and sometimes because they were forgotten, the right 
 to suspend it is expressly confined to cases of rebellion or invasion, 
 where the public safety may require it: a very just and wholesome 
 restraint, which cuts down at a blow a fruitful means of oppression, 
 capable of being abused in bad times to the worst of purposes. 
 Hitherto no suspension of the writ has ever been authorized by 
 congress since the establishment of the constitution. It would seem, 
 as the power is given to congress to suspend the writ of habeas 
 corpus in cases of rebellion or invasion, that the right to judge 
 whether exigency has arisen must exclusively belong to that bod)'.' 
 (Story on the Constitution, section 1342.)" 
 
 General Jackson had declared martial law at New 
 Orleans and had suspended, as a military necessity, the 
 privilege of the writ of habeas corpus. The authority of 
 General Jackson was considered in the case of Johnson vs. 
 Duncan by the Supreme Court of Louisiana. Judge Martin, 
 one of the most learned jurists of his time, after citing the 
 case ex parte Bollman, said : 
 
 "Again, the power of repealing a law and that of suspending 
 it (which is a practical repeal) are legislative powers. For eodem 
 modo quo quid constituitur eodem modo de Struitnr." 
 
 Judge Derbigny, in his opinion in the same case, said: 
 
 "The constitution of the United States, in which everything 
 necessary to the general and individual security has been foreseen, 
 does not provide that in times of public danger the executive power 
 shall reign to the exclusion of all others. It does not trust into the 
 hands of a dictator the reins of government. The framers of that 
 charter were too well aware of the hazards to which they would 
 have exposed the fate of the republic by such a provision ; and had
 
 THE OPINION IN THE MOVER CASE I27 
 
 they done it, the states would have rejected a constitution stained 
 with a clause so threatening to their liberties. In the meantime, 
 conscious of the necessity of removing all impediments to the exer- 
 cise of executive power, in cases of rebellion or invasion, they have 
 permitted congress to suspend the privilege of the writ of habeas 
 corpus in those circumstances, if the public safety should require it. 
 Thus far, and no farther, goes the constitution." 
 
 And, having quoted from an English author, says 
 further : 
 
 "And can it be asserted that while British subjects are thus 
 secured against oppression in the worst of times, American citizens 
 are left at the mercy of the will of an individual, who may, in 
 certain cases, the necessity of which is to be judged of by himself, 
 assume a supreme, overbearing, unbounded power! The idea is 
 not only repugnant to the principles of any free government, but 
 subversive of the very foundations of our own." 
 
 Caleb Gushing, who was nominated by President Grant 
 for chief justice of the United States, said, while he was 
 attorney general of the United States, in an opinion to the 
 secretary of state : 
 
 "And it may be assumed as a general doctrine of constitutional 
 jurisprudence in all the United States, that the power to suspend 
 laws, whether those granting the writ of habeas corpus or any other, 
 is vested exclusively in the legislature of the particular state." 
 (8 Opinions Attorney General, 365.) 
 
 In the year 1807 President Jefferson sent to the senate, 
 in confidence, a message detailing the circumstances attend- 
 ing the arrest of persons charged with treason. On the 
 following day Senator Giles, of \'irginia, a friend and 
 supporter of the president, moved the appointment of a 
 committee to inquire whether it was expedient, in the con- 
 dition of public affairs, to suspend the privilege of the writ 
 of habeas corpus. Senator Giles forthwith reported a bill 
 authorizing the suspension of the privilege of the writ for 
 the period of three months, and the bill was immediately 
 passed by the senate and sent to the house in confidence. 
 The house declared, by a vote of 123 to 3, that the message 
 ought not to be kept secret, and a public debate upon the
 
 128 ROBERT WILBUR STEELE 
 
 subject occurred. I shall quote from the debate somewhat 
 at length, for the reason that there appears to have been 
 such a unanimity of sentiment on the subject by the states- 
 men of that period that we should accept their views as a 
 guide for our action. 
 
 Mr. Burwell, of Virginia, is reported to have said : 
 
 "He would ask gentlemen if they seriously believed the dan- 
 ger sufficiently great to justify the suspension of this most important 
 right of the citizen, to proclaim the country in peril and to adopt 
 the measure so pregnant with mischief by which the innocent and 
 guilty will be involved in one common destruction? He said this 
 was not the first instance of the kind since the formation of the 
 federal government; there had been already two insurrections in 
 the United States, both of which had defied the authority of congress 
 and menaced the Union with dissolution. Notwithstanding one of 
 them justified the calling out of 15,000 men and the expenditure of 
 1,000,000 of dollars, he had not heard of a proposition to suspend 
 the writ of habeas corpus. What, then, will be said of us, if now, 
 when the danger is over, firm in the attachment of the people to the 
 Union, with ample resources to encounter any difficulty which may 
 occur, we resort to a measure so harsh in its nature, oppressive in 
 its operation and ruinous as a precedent? * * * Nothing but the 
 most imperious necessity would excuse us in confiding to the execu- 
 tive, or any person under him, the power of seizing and confining 
 a citizen, upon bare suspicion, for three months, without responsi- 
 bility, for the abuse of such unlimited discretion. * * * The 
 people of the United States would have just reason to reproach 
 their representatives with wantonly sacrificing their dearest inter- 
 ests when, from the facts presented to this house, it seems the country 
 was perfectly safe and the conspiracy nearly annihilated. Under 
 these circumstances, there can be no apology for suspending the 
 privilege of the writ of habeas corpus and violating the constitution, 
 which declares, 'The writ of habeas corpus shall not be suspended, 
 unless when, in cases of invasion or rebellion, * * *' What, in 
 another point of light, would be the effect of passing such a law? 
 Would it not establish a dangerous precedent? A corrupt and 
 vicious administration, under the sanction and example of this law, 
 might harass and destroy the best men of the country. It would 
 only be necessary to excite artificial commotions, circulate exagger- 
 ated rumors of danger, and then follows the repetition of this law- 
 by which every obnoxious person, however honest, is surrendered 
 to the vindictive resentment of the government. It will not be a 
 sufficient answer that this power will not be abused by the president 
 of the United States. He, Mr. B. believed, would not abuse it, but 
 it would be impossible to restrain all those who are under him. 
 Besides, he would not consent to advocate a principle bad in itself 
 because it will not, probably, be abused."
 
 THE OPINION IN THE MOVER CASE I29 
 
 Mr. Elliott, of Vermont, said: 
 
 "It is, indeed, difficult for me, consistently with the sincere and 
 high respect which I entertain for the source from whence this meas- 
 ure originated, to express, in decorous terms, the hostility which I 
 feel to the proposition. I am, therefore, disposed to consider it as 
 an original proposition here; as a motion in this body to suspend, 
 for a limited time, the privileges attached to the writ of habeas 
 corpus. And, in this point of view, I am prepared to say that it is 
 the most extraordinary proposition that has ever been presented for 
 our consideration and adoption. Sir, what is the language of our 
 constitution upon this subject? 'The privilege of the writ of habeas 
 corpus shall not be suspended, except when, in cases of invasion or 
 rebellion, the public safety shall require it.' Have we a right to 
 suspend it in any and every case of invasion and rebellion? So far 
 from it, that we are under a constitutional interdiction to act, unless 
 the existing invasion or rebellion, in our sober judgment, threatens 
 the first principles of the national compact, and the constitution 
 itself. In other words, we can only act in this case with a view to 
 national self-preservation. We can suspend the writ of habeas corpus 
 only in a case of extreme emergency; that alone is salus populi 
 which will justify this lex suprema. And is this a crisis of such 
 awful moment? Is it necessary at this time, to constitute a dictator- 
 ship to save the people from themselves, and to take care that the 
 republic shall receive no detriment? What is the proposition? To 
 create a single dictator, as in ancient Rome, in whom all power 
 shall be vested for a time? No; to create one great dictator and a 
 multitude, an army of subaltern and petty despots; to invest, not 
 only the president of the United States, but the governors of states 
 and territories, and, indeed, all persons deriving civil or military 
 authority from the supreme executive, with unlimited and irrespon- 
 sible power over the personal liberty of your citizens. * * * 
 An eminent English author, and the most popular writer upon the 
 subjects of legal science, considers its suspension as the suspension 
 of liberty itself; declares that the measure ought never to be resorted 
 to but in cases of extreme emergency, and says that the nation then 
 parts with its freedom for a short and limited time, only to resume 
 and secure it forever. Hence, he compares the suspension of the 
 habeas corpus act in Great Britain to the dictatorship of the Roman 
 republic." 
 
 Mr. Eppes said : 
 
 "By this bill we are called upon to exercise one of the most 
 important powers vested in congress by the constitution of the 
 United States. A power which suspends the personal rights of your 
 citizens, which places their liberty wholly under the will, not of 
 the executive magistrate only, but of his inferior officers. Of the 
 importance of this power, of the caution which ought to be employed 
 in its exercise, the words of the constitution afford irresistible evi- 
 dence. * * * Well, indeed, may this caution have been used as
 
 130 ROBERT WILBUR STEELE 
 
 to the exercise of this important power. It is, in a free country, the 
 most tremendous power which can be placed in the hands of a 
 legislative body. It suspends, at once, the chartered rights of the 
 community, and places even those who pass the act under military 
 despotism. The constitution, however, having vested this power in 
 congress and a branch of the legislature having thought its exercise 
 necessary, it remains for us to inquire whether the present situation 
 of our country authorizes, on our part, a resort to this extraordinary 
 measure. * * * This government has now been in operation 
 thirty years; during this whole period, our political charter, what- 
 ever it may have sustained, has never been suspended. Never, 
 under this government, has personal liberty been held at the will 
 of a single individual. Shall we, sir, suspend the chartered rights 
 of the community for the suppression of a few desperadoes? * * * 
 I consider the provisions in the constitution for suspending the 
 habeas corpus as designed only for occasions of great national 
 danger." 
 
 Mr. Nelson said : 
 
 "This precedent, let me tell, gentlemen, may be ruinous, may 
 be a most damnable precedent — a precedent which, hereafter, may 
 be most flagrantly abused. The executive may wish to make use 
 of more energetic measures than the established laws of the land 
 enable him to do; he will resort to this as a precedent, and this 
 important privilege will be suspended at the smallest appearance 
 of danger. The effect will be that, whenever a man is at the head 
 of our affairs who wishes to oppress or wreak his vengeance on 
 those who are opposed to him, he will fly to this as a precedent. 
 It will truly be a precedent fraught with the greatest danger; a 
 precedent which ought not to be set except in a case of the greatest 
 necessity; indeed, I can hardly contemplate a case in which, in my 
 opinion, it can be necessary." 
 
 Mr. Randolph said: 
 
 "If the bill passes, we are told, it will be but temporary. * * * 
 As to the three months' continuance, I consider that as one of the 
 most objectionable features of the bill — as a bait to the trap — as the 
 entering wedge. If it is made reconcilable to the interests and 
 feelings of this house to pass it for three months, do you think we 
 will feel the same lively repugnance to it that we do now? No! 
 It has been truly said that no man becomes perfectly wicked at 
 once; and it may be affirmed, with equal truth, that a nation is 
 never enslaved at once. Men must be initiated by degrees, and- 
 their repugnance must be gradually overcome." 
 
 Mr. Smilie said : 
 
 "I consider this one of the most important subjects upon which 
 we have been called to act. It is a question which is neither more 
 nor less than whether we shall exercise the only power with which
 
 THE OPINION IN THE MOYER CASE I3I 
 
 we are clothed to repeal an important part of the constitution. It is 
 in this case only that we have power to repeal that instrument. A 
 suspension of the privilege of the writ of habeas corpus is, in all 
 respects, equivalent to repealing that essential part of the constitu- 
 tion which secures that principle which has been called, in the 
 country where it originated, the 'palladium of personal liberty.' 
 If we recur to England, we shall find that the writ of habeas corpus 
 in that country has been frequently suspended. But, under what 
 circumstances? We find it was suspended in the year 1715. But 
 what was the situation of the country at that time? It was invaded 
 by the son of James II. There was a rebellion within the kingdom, 
 and an army was organized. The same thing happened in the year 
 1745. On this occasion it was found necessary to suspend it. In 
 later times, when the government had grown more corrupt, we have 
 seen it suspended for an infinitely less cause. We have taken from 
 the statute book of this country this most valuable part of our con- 
 stitution. The convention which framed that instrument, believing 
 that there might be cases when it would be necessary to vest a 
 discretionary power in the executive, have constituted the legislature 
 the judge of this necessity, and the only question now to be deter- 
 mined is, does this necessity exist?" 
 
 Mr. Dana said : 
 
 "I have been accustomed to view the privilege of the writ of 
 habeas corpus as the most glorious invention of man. * * * 
 There is another principle which appears to me highly objectionable. 
 It authorizes the arrest of persons, not merely by the president or 
 other high officers, but by any person acting under him. I imagine 
 this to be wholly without precedent. If treason were marching to 
 force us from our seats, I would not agree to do this. I would not 
 agree thus to destroy the fundamental principles of the constitution 
 or to commit such an act either of despotism or pusillanimity. Under 
 this view of the subject, I am disposed to reject the bill as contain- 
 ing a proposition on which I cannot deliberate." (Annals of Con- 
 gress, Ninth Congress, Second Session, pp. 402-424.) 
 
 And the house of representatives, by a vote of 113 to 
 19, refused to refer this bill to a committee, but, upon first 
 reading thereof, indefinitely postponed it; and of the 19 
 members who voted against the motion, very many were 
 opposed to the bill. 
 
 In February following, another debate occurred, at 
 which time Mr. Broom, of Delaware, is reported to have 
 said: 
 
 "In ordinary times the laws which already exist may be suffi- 
 cient, for in such times there is no temptation to transgress the
 
 132 ROBERT WILBUR STEELE 
 
 limits of constitutional or legal privileges; but in times of turbu- 
 lence and commotion the mere formal recognition of rights will afford 
 too feeble a barrier against the inflamed passions of men in power, 
 whether excited by an intemperate zeal for the supposed welfare of 
 the country, or by the detestable motives of party rancor or indi- 
 vidual oppression. I could have wished that circumstances had 
 never occurred which would make it necessar}^ to fortify, by penal 
 laws, the constitutional privilege of habeas corpus, and that the 
 whole nation, from the first to the least, had regarded it with such 
 religious veneration that no officer, either military or civil, would 
 have dared to violate it. But recent circumstances have proved that 
 such a wish would have been in vain, and have demonstrated, more 
 powerfully than any abstract reasoning, the necessity and impor- 
 tance of further legislative provision. 
 
 "This privilege of the writ of habeas corpus has been deemed 
 so important that, by the ninth section of the first article of the 
 constitution, it is declared that it shall not be suspended unless when, 
 in cases of rebellion or invasion, the public safety may require it. 
 Such is the value of this privilege that even the highest legislative 
 body of the Union — the legitimate representatives of the nation — 
 are not entrusted with the guardianship of it, or suffered to lay 
 their hands upon it unless when, in cases of extreme danger, the 
 public safety shall make it necessary. The suspension of this privi- 
 lege upon slight pretenses, it was easily foreseen, would destroy its 
 efficacy, and if it depended on the mere will of congress it would 
 become, in the hands of the majority, the most certain and con- 
 venient means to accomplish the purposes of party persecution or 
 to gratify political or personal rancor or animosity. * * * 
 
 "In England this inestimable privilege has been for ages the 
 proud theme of exultation. There they worshipped it as a talis- 
 manic wand which could unbar the gates of the strongest prison and 
 dissolve in an instant the fetters of the captive. It was to English- 
 men as a wall of fire by night, shielding them from the arbitrary 
 sway of tyrannic power. * * * 
 
 "Yet, however important these rights may be, a few moments' 
 reflection will satisfy us that, without the writ of habeas corpus, 
 they could avail but little. The rights may exist as abstract rights, 
 but the writ of habeas corpus affords the most important, if not the 
 only means of exercising them. In vain does the law proclaim that 
 no man shall be imprisoned contrary to law, if a party has no access 
 to a tribunal to decide the question of legality. In vain does the 
 law promise a trial by peers if the imprisoned party can have no 
 access to a tribunal where he may demand such trial. In short, 
 without the writ of habeas corpus, rights of personal liberty, how- 
 ever solemnly proclaimed, would exist but in name. This writ of 
 habeas corpus is coeval with the rights which it secures. It existed 
 by force of the common law until the subtleties of lawyers had 
 nearly refined it away, when it was aided by the statute of Charles, 
 and has since been found fully adequate to produce the desired 
 effect. If, then, this privilege has been productive of the most 
 salutary effects in England in guarding the liberty of the subject,
 
 THE OPINION IN THE MOVER CASE 133 
 
 we have the strongest proof that we can require of its importance to 
 us except our own experience. It is true we live under a form of 
 government where the sovereignty is acknowledged to belong to the 
 people, but let us not vainly imagine that we have no necessity for 
 laws restrictive upon men in power. Under the fair semblance of 
 republicanism has often been practised the most detestable tyranny, 
 and the mild laws of a republic have too often afforded a shelter 
 for knaves and tyrants, instead of a shield for the virtuous and 
 oppressed. * * * 
 
 "For my own part, I wish to live under a government of laws, 
 and not of men ; for, however pure and upright be the intentions 
 of our military commanders, however virtuous and even unsus- 
 pected be their conduct, I can never agree that my right of per- 
 sonal liberty shall depend upon their forbearance and discretion. 
 I know not whether these men that have been arrested are innocent 
 or guilty of the treason with which they are charged, but, whether 
 innocent or guilty, they must be arrested and tried according to law. 
 However atrocious the crime which has been committed, the punish- 
 ment must be according to law. For, in transgressing the limits of 
 the law to revenge upon a criminal the wrongs of society, we are 
 guilty of injustice both to society and the criminal." 
 
 And Mr. Randolph said: 
 
 "I make no profession of sympathy for the men who have been 
 denounced as traitors. I argue on the supposition that they are 
 traitors. There is no need of much exertion on behalf of good men. 
 Attacks on the liberty of the people are, as has been stated before, 
 made always in the persons of the vile and worthless. But when 
 precedent is once established, in the case of bad men, who, like 
 pioneers, go before to smooth the way, good men tremble for their 
 safety. * * *" 
 
 Mr. Randolph concluded by begging pardon for detaining the 
 house so long, but he could never be indifferent on a subject like 
 this. The house were now to decide if the constitution were only 
 pen, ink and paper, and to be set aside at the whim of every mili- 
 tary commander, or whether it were unalterable by fate, and if he 
 who dared to violate it should rue the consequences. (Annals of 
 Congress, Ninth Congress, Second Session, 502-538.) 
 
 Accompanying the message of the president was a 
 letter from General Wilkinson in which he stated that he 
 had delivered one person over on habeas corpus, but that 
 he had evaded the writ as to the other two and, recognizing 
 that he had violated the law, said that he should look to 
 congress for indemnity. A day or two later the president 
 sent a second message to congress in which he stated that 
 the persons arrested at New Orleans had arrived at the seat
 
 134 ROBERT WILBUR STEELE 
 
 of government and that, immediately upon their arrival, 
 he had delivered to the proper authorities all evidence in 
 his possession and had directed that proceedings be insti- 
 tuted against them at once. 
 
 This debate should be very instructive. It was par- 
 ticipated in by members from nearly every state, and being 
 at a time so early in our history, should be regarded as 
 contemporaneous with the constitution. The congress, com- 
 posed as it was of the ablest men of the times, would not 
 consent to the proposition of suspending the writ of habeas 
 corpus for the period of three months, on the ground that 
 it would create not only a dictator in the person of the 
 president, but a horde of petty tyrants through the country, 
 and because the necessity for so doing was not so great and 
 imperious as to justify them in taking that course. From 
 the debate we learn that at no time before had the privilege 
 of the writ been suspended; that, in the opinion of the 
 members of this congress, the general of the army had 
 violated the law in not turning over to the civil authorities 
 those engaged in rebellion against the government ; that the 
 writ should not be suspended by congress except the nation 
 itself was in danger; and that, unless the privilege of the 
 writ was suspended, the military could not arrest and hold 
 citizens on suspicion. 
 
 During the period of the Civil War, John Merryman 
 was arrested by military authority upon vague and indefi- 
 nite charges, without any proof so far as it appeared. When 
 a writ of habeas corpus was served requiring the officer to 
 produce the body before the chief justice of the United 
 States, in order that inquiry might be made as to the legality 
 of the imprisonment, the officer answered that he had been 
 authorized by the president to suspend the writ of habeas 
 corpus and on that ground refused obedience to the writ. 
 The constitution of the United States contains this pro- 
 vision :
 
 THE OPINION IN THE MOVER CASE I35 
 
 "The privilege of the writ of habeas corpus shall not 
 be suspended unless when, in cases of rebellion or invasion, 
 the public safety may require it." 
 
 In the constitution of our state the following provision 
 is found : 
 
 "That the privilege of the writ of habeas corpus shall 
 never be suspended unless when, in case of rebellion or 
 invasion, the public safety may require it." 
 
 The slight difference between the federal and our state 
 constitution is shown by the italics. The provision is found 
 in our bill of rights, and the conjunction "that" connects 
 the opening sentence, which is: "In order to assert our 
 rights, acknowledge our duties, and proclaim the principles 
 upon which our government is founded, we declare :" The 
 adverb "not" of the federal law is replaced by the more 
 positive adverb "never" in ours, and the plural of the noun 
 "case" is used in the national constitution, while in ours the 
 singular appears. Otherwise the sections are identical. 
 
 In construing this section of the federal constitution 
 the chief justice of the United States held that the power 
 of suspending the privilege of the writ was solely a legis- 
 lative power. He quoted from Blackstone, Hallam, Mar- 
 shall and Story; related the incident occurring in the admin- 
 istration of Jefferson ; reviewed the history of the struggles 
 of the English speaking people which ended in the enact- 
 ment of the thirty-first chapter of Charles II — an act, as 
 he declared, of great and inestimable value, because it con- 
 tains provisions which compel courts and judges and all 
 parties concerned to perform their duties in a manner speci- 
 fied in the statute ; and closes by saying : 
 
 "I can only say that if the authority which the constitution has 
 confided to the judiciary department and judicial officers may thus, 
 upon any pretext or under any circumstances, be usurped by the 
 military power at its discretion, the people of the United States are 
 no longer living under a government of laws, but every citizen holds 
 life, liberty and property at the will and pleasure of the army
 
 136 ROBERT WILBUR STEELE 
 
 officer in whose military district he may happen to be found." 
 (Taney's Circuit Court Decisions, 246.) 
 
 The decision of the chief justice was assailed by many 
 able lawyers of the time, and the chief justice was himself 
 denounced as a sympathizer with the rebellion ; yet, not- 
 withstanding the great esteem in which the president was 
 held by the people of the North — notwithstanding the fact 
 that the life of the republic was in danger — loyal courts 
 all over the North sustained the chief justice and decided 
 that the executive had not the power under the constitution 
 to suspend the privilege of the writ. And finally, in 1863, 
 the question was settled. Thaddeus Stevens, the leader of 
 the Union party, succeeded in passing through the house of 
 representatives a bill authorizing the president to suspend 
 the privilege of the writ of habeas corpus, and to indemnify 
 him or other officers in cases where damages were awarded 
 for arbitrary arrest. The senate amended the bill and, after 
 a conference between the two houses, it became a law. Thus 
 the executive and legislative branches of the government 
 recognized the principles contended for by the judicial 
 department, and it is settled that congress only has the 
 power of suspending the privilege of the writ of habeas 
 corpus, and that it is the sole judge of the conditions which 
 require its suspension. 
 
 The language employed is so peculiarly applicable to 
 the case at bar that I shall quote from some of the opinions 
 of those judges who announced that the power to suspend 
 the writ is legislative and not executive. In the case Ex 
 parte Benedict (Federal Cases, 1292), Judge Hall, of the 
 United States Court for the northern district of New York, 
 held that the president of the United States is not vested 
 with power to suspend the privilege of the writ of habeas 
 corpus at any time without the authority of an act of con- 
 gress. In the course of the opinion he said :
 
 THE OPINION IN THE MOYER CASE I37 
 
 "Even in the midst of our present struggle we should not forget 
 the teachings and historj' of the past and regard as trivial and 
 unimportant constitutional principles, the persistent violation of 
 vs'hich led to the dethronement of kings and the overthrow of long 
 established forms of government. We should not forget the letters 
 lie cachet of the French monarchs, nor the illegal imprisonments 
 under Charles I. In our efforts to read aright and profit by the 
 terrible lesson which the present condition of our unhappy country 
 presents, we should not forget what Hume and Hallam and Black- 
 stone and Marshall and Story and Kent taught us." 
 
 Quoting from Blackstone, he says : 
 
 " 'Of great importance to the public is the preservation of this 
 personal liberty; for, if once it were left to the power of any — of 
 the highest magistrate — to imprison whomever he or his officers 
 thought proper (as in France it is daily practiced by the crown), 
 there would soon be an end of all other rights and immunities. 
 Some have thought that unjust attacks, even upon life and property, 
 at the arbitrary will of the magistrate, are less dangerous to the 
 commonwealth than such as are made upon the personal liberty of 
 the subject. To bereave a man of life, or by violence to confiscate 
 his estate without accusation or trial, would be so gross and notori- 
 ous an act of despotism as must at once convey the alarm of tyranny 
 throughout the whole kingdom; but confinement of the person by 
 secretly hurrying him to jail, where his sufferings are unknown or 
 forgotten, is a less public, a less striking, and therefore a more 
 dangerous engine of arbitrary government. And yet sometimes, 
 when a state is in danger, even this may be a necessary measure. 
 But the happiness of our constitution is, that it is not left to the 
 executive power to determine when the danger of the state is so 
 great as to render this measure expedient; for it is the parliament 
 only, or legislative power, that, whenever it sees proper, can author- 
 ize the crown, by suspending the habeas corpus act for a short and 
 limited time, to imprison suspected persons without giving any 
 reason for so doing, as the senate of Rome was wont to have recourse 
 to a dictator, a magistrate of absolute authority, when they judged 
 the republic in any imminent danger.' " 
 
 Judge Hall then speaks of the opinion of Attorney 
 General Bates, whose views have been adopted in large 
 measure by this court : 
 
 "For that gentleman I entertain the highest respect. His purity 
 of motive and character, his great legal acquirements and his 
 undoubted patriotism and ability are unquestioned; but, even in 
 these respects, that excellent gentleman would not want his friend 
 to claim more than that he was the equal of the learned chief 
 justice of the United States. Placing their opinions upon the same 
 footing, they would only neutralize each other, and then the delib-
 
 138 ROBERT WILBUR STEELE 
 
 erate opinions of Marshall and Story and Martin and other justices 
 of the Supreme Court who concurred in the opinion of their chief in 
 the case of Ex parte Bollman (4 Cranch, 75), supported, as they are, 
 by unanswerable argument, are decisive of the question, and con- 
 strain me to decide that the president, without the authority of 
 congress, has no constitutional power to suspend the privilege of the 
 writ of habeas corpus in the United States." 
 
 And Judge Hall ordered the discharge of the prisoner. 
 In the case In re Kemp (16 Wis,, p. 382), Chief Jus- 
 tice Dixon said : 
 
 "I think the president has no power, in the sense of the ninth 
 section of the first article of the constitution of the United States, 
 to suspend the privilege of the writ of habeas corpus. It is, in my 
 judgment, a legislative and not an executive act; and the power is 
 vested in congress. Upon this question it seems to me that the 
 reasoning of Chief Justice Taney, in Ex parte Merryman, is unan- 
 swerable." 
 
 And Justice Cole, in the same case, said : 
 
 "To suspend, annul or take away a right given by law is, under 
 our system of government, essentially a legislative function. To 
 deprive a citizen of the privilege of the writ of habeas corpus is to 
 take from him one of the highest and most sacred rights secured to 
 him by the constitution and laws of the land. It is a change of the 
 law which, from the nature of things, belongs to the power which 
 can make the law." 
 
 Justice Paine, in answering the question, "Where is 
 the power to suspend the writ lodged ^" said : 
 
 "From its very nature it would not naturally be entrusted to a 
 single man, and that man at the head of the military. It is a 
 power dangerous anywhere. It delivers over the nation, for the time 
 being, to the control of the executive. It makes him substantially 
 what the Roman dictator was. No single officer should be allowed 
 to assume such powers upon his own judgment only. The nation 
 that is to be subjected to them should have some voice in deter- 
 mining when the necessity arises for their existence. And as in 
 Rome there was no officer who could assume the power of the dic- 
 tator upon his own judgment, but such officer had to be appointed 
 by a vote of the senate, so here the power to suspend the writ of 
 habeas corpus would naturally have been entrusted to the legisla- 
 ture, and not to the executiv'e alone. There the constitution has 
 placed it. So the Supreme Court of the United States has declared. 
 So it has been held by every judicial decision, and every elementary 
 writer on constitutional law."
 
 THE OPINION IN THE MOVER CASE I39 
 
 In Griffin vs. Wilcox (21 Ind., 270) and Warren vs, 
 Paul (22 Ind., 276), the Supreme Court of Indiana said 
 that the section of the constitution authorizing the suspen- 
 sion of the writ of habeas corpus, in case of invasion or 
 rebellion, was a delegation of power to the legislature, and 
 not to the executive authority. 
 
 In the Circuit Court of the United States for the dis- 
 trict of California, and in the case of McCall vs. McDowell, 
 Judge Deady, delivering the opinion, said, with reference 
 to the power of the president to suspend the writ of habeas 
 corpus : 
 
 "I do not propose to argue the question. There are some things 
 too plain for argument, and one of these is that by the constitution 
 of the United States the president has not the power to suspend the 
 privilege of the writ, and that congress has. The power of the 
 president is executive power — a power to execute the laws, but not 
 to suspend them. The latter is a legislative function, and so far as 
 it exists, belongs naturally and by force of the constitution exclu- 
 sively to congress." (I Abbott's U. S. Rep., 212.) 
 
 A motion for a new trial was argued before Justice 
 Field, of the United States Supreme Court, and Judge 
 Hoffman, and was denied. 
 
 In re Moore (64 N. C, 802), the chief justice says: 
 
 ■'I declare my opinion to be, that the privilege of the writ of 
 habeas corpus has not been suspended by the action of his excel- 
 lency; that the governor has the power, under the constitution and 
 laws, to declare a county to be in a state of insurrection, to take 
 military possession, to order the arrest of all suspected persons, and 
 to do all things necessary to suppress the Insurrection, but he has 
 no power to disobey the writ of habeas corpus, or to order the trial 
 of any citizen otherwise than by jury. * * * It niay be that the 
 arrest and also the detention of the prisoner is necessary as a means 
 to suppress the insurrection. But I cannot yield my assent to the 
 conclusion; the means must be proper, as well as necessarj', and 
 the detention of the prisoner as a military prisoner is not a proper 
 means, for it violates the Declaration of Rights: 'The privilege of 
 the writ of habeas corpus shall not be suspended.' (Constitution, 
 article I, section 21.) 
 
 "This is an express provision and there is no rule of construc- 
 tion or principle of constitutional law by which an express provision 
 can be abrogated and made of no force by an implication from any 
 other provision of the instrument."
 
 140 ROBERT WILBUR STEELE 
 
 Upon the subject of martial law the authorities do not 
 appear to be divided. In nearly every case I have cited the 
 question of the right of the president to declare a commu- 
 nity to be under martial law was under consideration. In 
 the case Johnson vs. Duncan, decided in the year 1815, the 
 Supreme Court of Louisiana decided that the military com- 
 mander had no authority to declare and enforce martial law, 
 and that his act in so doing was illegal and void. In a note 
 to the case is the following : 
 
 "The doctrine established in the first part of the opinion of the 
 court in the above case is corroborated by the decision of the District 
 Court of the United States for the Louisiana district in the case of 
 The United States vs. Jackson, in which the defendant, having 
 acted in opposition to it, was fined $1,000. In Lamb's case, Judge 
 Bay, of South Carolina, recognized the definition of martial law 
 given by this court, expressing himself thus: 'If bj^ martial law is 
 to be understood that dreadful system, the law of arms, which, in 
 former times, was exercised by the king of England and his lieuten- 
 ants, when his word was the law, and his will the power by which 
 it was exercised, I have no hesitation in saying that such a monster 
 could not exist in this land of liberty and freedom. The political 
 atmosphere of America would destroy it in embryo. It was against 
 such a tyrannical monster that we triumphed in our revolutionary 
 conflict. Our fathers sealed the contest by their blood, and their 
 posterity will never permit it to tarnish our soil by its unhallowed 
 feet, or harrow up the feelings of our gallant sons by its ghastly 
 appearance. All our civil institutions forbid it, and the manly 
 hearts of our countrymen are steeled against it.' " 
 
 This case was reported in the year 1816. But the case, 
 above all others, which settles, until reversed, the question 
 of the powers of the military, is that of ex parte Milligan 
 (4 Wall, 2). The case involved the right of a military 
 commission to try a citizen of the state of Indiana under the 
 act of congress referred to herein. The opinion was written 
 by David Davis, the associate, the friend, the appointee of 
 Lincoln. It is so logical, so patriotic and so convincing that 
 I cannot conceive of a condition or change of thought that 
 will cause its reversal ; and it should, in my opinion, be a 
 guide for all courts — a sure and safe guide — which, if
 
 THE OPINION IN THE MOVER CASE I4I 
 
 followed, will protect the citizen and enforce the law. Judge 
 Davis said, speaking of the bill of rights : 
 
 "These securities for personal liberty thus embodied were such 
 as wisdom and experience had demonstrated to be necessary for the 
 protection of those accused of crime, and so strong was the sense of 
 the country of their importance and so jealous were the people that 
 these rights, highly prized, might be denied them by implication, 
 that when the original constitution was proposed for adoption it 
 encountered severe opposition ; and, but for the belief that it would 
 be so amended as to embrace them, it would never have been rati- 
 fied. Time has proven the discernment of our ancestors; for even 
 these provisions, expressed in such plain English words that it 
 would seem the ingenuity of man could not evade them, are now, 
 after the lapse of more than seventy years, sought to be avoided. 
 Those great and good men foresaw that troublous times would 
 arise when rulers and people would become restive under restraint 
 and seek by sharp and decisive measures to accomplish ends deemed 
 just and proper and that the principles of constitutional liberty 
 would be imperiled unless established by irrepealable law. The 
 history of the world had taught them what was done in the past 
 might be attempted in the future. The constitution of the United 
 States is a law for rulers and people, equally in war and in peace, 
 and covers with the shield of its protection all classes of men, at 
 all times and under all circumstances. No doctrine involving more 
 pernicious consequences was ever invented by the wit of man than 
 that any of its provisions can be suspended during any of the great 
 exigencies of government. Such a doctrine leads directly to anarchy 
 or despotism, but the theory of necessity on which it is based is 
 false; for the government, within the constitution, has all the powers 
 granted to it which are necessary to preserve its existence, as has 
 been happily proved by the result of the great effort to throw off its 
 just authority. * * * 
 
 "It follows from what has been said on this subject that there 
 are occasions when martial rule can be properly applied. If, in 
 foreign invasion or civil war, the courts are actually closed, and it 
 is impossible to administer criminal justice according to law, then, 
 on the theater of active military operations, where war prevails, 
 there is a necessity to furnish a substitute for the civil authority 
 thus overthrown, to preserve the safety of the army and societv; 
 and as no power is left but the military, it is allowed to govern by- 
 martial rule until the laws can have their free course. As necessity 
 creates the rule, so it limits its duration; for, if this government is 
 continued after the courts are reinstated, it is a gross usurpation of 
 power. Martial rule can never exist where the courts are open and 
 in the proper, unobstructed exercise of their jurisdiction." 
 
 In another place Judge Davis says : 
 
 "It is claimed that martial law covers with its broad mantle 
 the proceedings of this military commission. The proposition is
 
 142 ROBERT WILBUR STEELE 
 
 this: That in the time of war the commander of an armed force 
 (if, in his opinion, the exigencies of the country demand it, and of 
 which he is to judge) has the power, within the lines of his mili- 
 tary district, to suspend all civil rights and their remedies and 
 subject citizens as well as soldiers to the rule of his will, and in 
 the exercise of his lawful authority cannot be restrained except by 
 his superior officer or the president of the United States. If this 
 position is sound to the extent claimed, then when war exists, foreign 
 or domestic, and the country is subdivided into military departments 
 for mere convenience, the commander of one of them can, if he 
 chooses, within his limits, on the plea of necessity, with the approval 
 of the executive, substitute military force for and to the exclusion 
 of the laws, and punish all persons, as he thinks right and proper, 
 without fixed or certain rules. The statement of this proposition 
 shows its importance ; for, if true, republican government is a fail- 
 ure, and there is an end of liberty regulated by law. Martial law 
 established on such a basis destroys every guarantee of the consti- 
 tution, and effectually renders the 'military independent of and 
 superior to the civil power' — the attempt to do which by the king of 
 Great Britain was deemed by our fathers such an offense that they 
 assigned it to the world as one of the causes which impelled them 
 to declare their independence. Civil liberty and this kind of martial 
 law cannot endure together; the antagonism is irreconcilable; and, 
 in the conflict, one or the other must perish. * * * Wicked men, 
 ambitious of power, with hatred of liberty and contempt of law, 
 may fill the place once occupied by Washington and Lincoln; and 
 if this right be conceded, and the calamities of war again befall us, 
 the dangers to human liberty are frightful to contemplate. If our 
 fathers had failed to provide for just such a contingency they would 
 have been false to the trust reposed in them. They knew — the 
 history of the world told them — the nation they were founding, be 
 its existence short or long, would be involved in war. How often 
 or how long continued human foresight could not tell; and that 
 unlimited power, wherever lodged at such a time, was especially 
 hazardous to freemen. For this and other equally weighty reasons, 
 they secured the inheritance they had fought to maintain by incor- 
 porating in a written constitution the safeguards which time had 
 proved were essential to its preservation. Not one of these safe- 
 guards can the president, or congress, or the judiciary disturb, 
 except the one concerning the writ of habeas corpus. * * * 
 
 "The illustrious men who framed that instrument were guard- 
 ing the foundations of civil liberty against the abuse of unlimited 
 power; they were full of wisdom and the lessons of history informed 
 them that a trial by an established court, assisted by an impartial 
 jury, was the only sure way of protecting the citizen against oppres- 
 sion and wrong. Knowing this, they limited the suspension to one 
 great right, and left the rest to remain forever inviolable. But, it 
 is insisted that the safety of the country in time of war demands 
 that this broad claim for martial law shall be sustained. If this 
 were true, it could well be said that a country preserved at the 
 sacrifice of the cardinal principles of liberty is not worth the cost 
 of preservation. Happily it is not so."
 
 THE OPINION IN THE MOVER CASE I43 
 
 It seems to me that everything has been said that can 
 be said, and that the expounders of the constitution have 
 laid out a path that leads to peace and security. And I 
 have quoted from these authorities for the purpose of dem- 
 onstrating that the civil liberty of these great men and the 
 civil liberty of Colorado today are of different species. 
 
 But it is said that the governor has greater powers 
 under our constitution than the president has under the 
 national constitution ; that because he is given power to 
 suppress insurrection and repel invasion, power sufficient to 
 accomplish the purpose is necessarily implied ; that the 
 executive is the sole judge of the means to be employed 
 and that the bill of rights must give way when the governor 
 is engaged in exercising this power. It was because of the 
 fear that the guarantees of personal liberty would be denied 
 by implication that the bill of rights was made a part of 
 our constitution, and it was the intention of the people 
 when they adopted the constitution to declare their rights 
 in such plain English that they could not be construed away 
 nor frittered away by implication or evasion. The author- 
 ity is overwhelming that the position of the governor cannot 
 be sustained; that the power of suspending the writ of 
 habeas corpus is legislative and not executive ; that 
 martial law can only prevail in places where the civil 
 law is overthrown by force, and that it exists only 
 so long as it is necessary to reinstate the courts ; that 
 martial law cannot prevail where the courts are open 
 and exercising their functions; that the judicial department 
 will take notice whether the courts are open or have been 
 overthrown by superior force. This court has not under- 
 taken to declare that the position taken by the governor and 
 his special counsel is correct, but has said that the right of 
 the governor to declare and enforce martial law and to sus- 
 pend the privilege of the writ of habeas corpus is not
 
 144 ROBERT WILBUR STEELE 
 
 involved. The court would have sustained the governor, 
 under the authorities, if it were possible to do so; but, find- 
 ing it impossible to sustain him under the authorities, it 
 has sustained him in spite of them. All courts are in duty 
 bound to sustain the co-ordinate departments of the govern- 
 ment when they can be sustained ; and I should sustain the 
 executive department if any doubt lingered in my mind as 
 to the right of the head of that department to exercise the 
 great power that he asserts. But I believe that the consti- 
 tution has been "unnecessarily assailed and rudely violated" 
 by the head of the executive department, and I further 
 believe that this court has removed the landmarks which 
 our fathers have set ; and my duty requires me to withhold 
 my approval. 
 
 This leads us to a discussion of the opinion in the case. 
 The holding of the court that the respondent is not required 
 to deny the allegations of the petition but to answer to the 
 writ, which requires him to show by what authority he 
 detains the prisoner, I do not regard as very important, in 
 view of the disposition made of the case. The chief justice 
 of the United States in the Merryman case appears to have 
 considered the averments of the petition in deciding the 
 case ; and I shall, for the purposes of this, consider one or 
 two facts stated in the petition which I think have a bearing 
 upon the case. The petitioner was not in the county of San 
 Miguel at the time it was declared to be in a state of insur- 
 rection and rebellion. He did not go to the county of San 
 Miguel voluntarily, but was taken there by the sheriff upon 
 a warrant charging him with a misdemeanor. The petition 
 alleges that the charge was unfounded, and that it was made 
 and the warrant issued for the purpose of taking him to the 
 county of San Miguel to enable the military authorities to 
 detain him. He was allowed bail, but was, on the following 
 day, arrested by the military officers. If it be true that such
 
 THE OPINION IN THE MOVER CASE I45 
 
 acts were committed in this case — and we are precluded 
 
 from making an investigation of the facts, then any person 
 
 in any part of the state can be carried into the county where 
 
 it is alleged an insurrection exists and kept there without 
 
 bail until the commanding officer chooses to release him. 
 
 This was done in Illinois by the federal officers, and the 
 
 legality of the arrest was passed upon by the Supreme Court 
 
 of that state in the case of Johnson vs. Jones (z|4 111., 143). 
 
 The court said : 
 
 "It is a fearful power that is claimed for the government by 
 the counsel for the appellee, and one which no free government 
 ought to possess. Even in England, in the latter part of the last 
 century, when secret political societies were formed hostile to the 
 government and in league with the French revolutionists or sup- 
 posed to be so, although the country was at war with France, yet, 
 while the high Tory administration of Mr. Pitt arrested, prosecuted 
 and punished with a pitiless vigor, it acted only through the ordi- 
 nary agencies of the civil courts, and made no use of the military 
 arm under the pretense that the offending persons were belligerents 
 or public enemies. If this plaintiff was guilty of the charges made 
 in the plea he merited arrest and a severe punishment, but he should 
 have been punished in conformity to law. It is to be remembered 
 that the question before us is one of power, simply, on the part of 
 the executive, and not of deserving on the part of the plaintiff. If 
 the president could rightfully arrest him by military force and 
 confine him without process or trial to a fortress in the harbor of 
 New York, he could do the same thing to any other person in the 
 state of Illinois, however innocent of crime. * * * As no charge 
 is made, no judicial investigation had, it is left entirely to the 
 caprice of the government to determine what persons shall be seized. 
 The power to thus arrest being once conceded, every man in the 
 state * * * vvould hold his liberty at the mercy of the military 
 officer in command." 
 
 In a separate opinion by Justice Breese, it is said : 
 
 "I cordially concur in the sentiment that the constitution of 
 the United States was designed by its framers, and has been hitherto 
 so understood by the people, to be the same protecting instrument 
 in war as in peace; that a state of war does not enlarge the powers 
 of any one department of the government established by it, nor has 
 any one of these departments any right to urge 'necessity' or 'extraor- 
 dinary emergencies' as a plea for the usurpation of powers not 
 granted. The first is the tyrant's plea, and the other places the 
 dearest rights of the citizen at the mercy of a dominant party, who 
 have only to declare the 'emergency,' which they can readily create, 
 pretexts for which bad men are keen to find and eager to act upon."
 
 146 ROBERT WILBUR STEELE 
 
 And the marshal who made the arrest was held liable 
 for damages. And so it seems to me that when one alleges 
 that he is not an insurgent, that he was not in the county 
 where the insurrection was alleged to exist, but that he was 
 carried there by force for the purpose of being placed in the 
 custody of military authorities — conceding everything in the 
 opinion to be a correct statement of the law — there is power 
 in the civil authority to examine the question and determine 
 whether the petitioner is in fact guilty. 
 
 It is held by the court that as the governor, under the 
 constitution, is empowered to suppress insurrection or repel 
 invasion, that the recitals in his proclamation that an insur- 
 rection exists cannot be controverted because it becomes his 
 duty to determine as a fact when a condition exists that 
 demands the exercise of his power, and that the judicial 
 department cannot substitute its judgment for that of the 
 executive department in matters calling for the exercise of 
 discretion. As I have before stated, I do not regard the 
 proclamation as of great importance. It does not seem to 
 me to be necessary to proclaim an insurrection before under- 
 taking to suppress it, and I am satisfied that the proclama- 
 tion is not a condition precedent to the exercise of the power. 
 An insurrection may or may not exist, notwithstanding the 
 proclamation of the governor; as an insurrection may con- 
 tinue long after the governor declares it to have been sup- 
 pressed, so it may cease long before his declaration of peace. 
 The proclamation may determine the status of the militia, 
 and may be necessary for the purpose of ordering them to 
 the scene of insurrection ; and the governor has, in my 
 opinion, the undoubted power to call out the militia at such 
 time to enforce such laws as in his judgment are proper 
 for the protection of persons and property ; and it is entirely 
 probable that the act of the governor in calling to his aid 
 the military arm of the government cannot be questioned.
 
 THE OPINION IN THE MOVER CASE I47 
 
 but when it comes to superseding the civil power and exer- 
 cising martial law, to disobeying the writ of habeas corpus 
 or other process of the court, to detaining citizens upon sus- 
 picion, then the question of whether an insurrection exists is 
 not to be determined by the governor's proclamation. If 
 such is not the law, then, as Justice Breese says, it "places 
 the dearest rights of the citizen at the mercy of the dominant 
 party, who have only to declare the 'emergency,' which they 
 can readily create, pretext for which bad men are keen to 
 find and eager to act upon." 
 
 I therefore do not assent to the doctrine announced. 
 
 The doctrine announced in the other parts of the opin- 
 ion I regard as establishing a more dangerous precedent, of 
 more far-reaching consequences, if possible, than the pre- 
 ceding one. And, in order to properly discuss that branch 
 of the case, we should keep constantly before us the words 
 of the Supreme Court of the United States : 
 
 "The constitution * * * is a law for rulers and people, 
 equally in war and in peace, and covers with the shield of its pro- 
 tection all classes of men, at all times and under all circumstances. 
 No doctrine involving more pernicious consequences was ever 
 invented by the wit of man than that any of its provisions can be 
 suspended during any of the great exigencies of government. Such 
 a doctrine leads directly to anarchy or despotism, but the theory of 
 necessity on which it is based is false." (4 Wall, 2.) 
 
 The court then, as prefatory to a discussion of ques- 
 tions involving various provisions of the constitution, says 
 that "Laws must be given a reasonable construction which, 
 so far as possible, will enable the end thereby sought to be 
 attained. So with the constitution." 
 
 The sentence is rather obscure. If the court means 
 that it will not be presumed that the legislature intends 
 what is unreasonable, then I agree with it; but if it means 
 that the dearest right preserved by our constitution — free- 
 dom from arbitrary arrest and imprisonment — can be argued 
 away, as impliedly repealed by the authority given to the
 
 148 ROBERT WILBUR STEELE 
 
 governor to execute the laws and suppress insurrection, I 
 
 do not agree with it. The court has not construed the 
 
 constitution — it has ignored it; and the result is that it has 
 
 made greater inroads on the constitution than it intended, 
 
 and that not one of the guarantees of personal liberty can 
 
 now be enforced. The Supreme Court of the United States, 
 
 speaking of the bill of rights, says : 
 
 "So jealous were the people that these rights, highly prized, 
 might be denied them by implication, that when the original consti- 
 tution was proposed for adoption it encountered severe opposition ; 
 and, but for the belief that it would be so amended as to embrace 
 them, it would never have been ratified. Time has proven the 
 discernment of our ancestors ; for even these provisions, expressed in 
 such plain English words that it would seem the ingenuity of man 
 could not evade them, are now, after the lapse of more than seventy 
 years, sought to be avoided." 
 
 The court then proceeds to give to the constitution 
 what it terms a reasonable construction. After declaring 
 that the petitioner can be restrained of his liberty without 
 warrant and on suspicion only, until such time as the mili- 
 tary authority declares the insurrection at an end, it says : 
 
 "Nor do these views conflict with section 22 of the bill of 
 rights, which provides that the military shall always be in strict 
 subordination to the civil power. The governor, in employing the 
 militia to suppress an insurrection, is merely acting in his capacity 
 as the chief civil magistrate of the state, and, although exercising 
 his authority conferred by the law through the aid of the military 
 under his command, he is but acting in a civil capacity. In other 
 words, he is but exercising the civil power vested in him by law 
 through a particular means which the state has provided for the 
 protection of its citizens." 
 
 This was the argument advanced by Attorney General 
 Bates, more than forty years ago, but it has not found its 
 way into the reported decisions of the courts. When the 
 court says that because the governor is the head of the exec- 
 utive department of the state, when he takes command 
 of the military forces he is still at the head of the civil 
 power, and that the section of the bill of rights that declares 
 "that the military shall always be in strict subordination to
 
 THE OPINION IN THE MOVER CASE I49 
 
 the civil power" has no other meaning than that the military 
 shall always be under the command of the governor, it is 
 simply annulling that section of the bill of rights. The 
 section referred to must have some meaning. It can have 
 no meaning if it is construed as the court construes it. I 
 think it has a meaning. The language used is not obscure 
 or ambiguous. It undoubtedly means that the civil power 
 shall control at all times, in war and in peace. The Supreme 
 Court of the United States has said that the attempt to make 
 the military independent of, and superior to, the civil power 
 by the king of Great Britain was deemed by our fathers 
 such an offense that they assigned it to the world as one of 
 the causes which impelled them to declare their independ- 
 ence. (4 Wall, 2.) 
 
 Again, the court says : 
 
 "To deny the right of the militia to detain those whom they 
 arrest while engaged in suppressing acts of violence and until order 
 is restored would lead to the most absurd results." 
 
 This sentence inflicts a fatal wound upon civil liberty, 
 suspends indefinitely the privilege of the writ of habeas 
 corpus, annuls that section of the constitution which declares 
 that no person shall be deprived of liberty without due 
 process of law, and characterizes the declaration of the 
 Supreme Court of the United States as an absurdity. I say 
 this because the opinion declares that the governor is the 
 sole judge of the conditions which impel him to call forth 
 the militia and to withdraw it, and of the necessity to 
 imprison and detain ; and this without regard to the guilt 
 or innocence of the person imprisoned. This was the doc- 
 trine the Supreme Court had in mind when it declared : 
 "No doctrine involving more pernicious consequences was 
 ever invented by the wit of man." 
 
 A Union congress declined to invest the beloved 
 Lincoln with such enormous power, and, although it author-
 
 150 ROBERT WILBUR STEELE 
 
 ized the suspension of the privilege of habeas corpus, it 
 declared the superiority of the civil power by requiring the 
 release of prisoners unless indictment was returned within 
 a limited time. 
 
 Again, the court says : 
 
 "If, as contended by counsel for petitioner, the military, as soon 
 as a rioter or insurrectionist is arrested, must turn him over to the 
 civil authorities of the county, the arrest might, and in many 
 instances would, amount to a mere farce. He could be released on 
 bail and left free to again join the rioters or engage in aiding and 
 abetting their action, and if again arrested, the same process would 
 have to be repeated, and thus the action of the military would be 
 rendered a nullity." 
 
 Expressed otherwise, the statement is that we should 
 deny the prisoner one constitutional right because, unless 
 we do, he may take advantage of another. Is it the law of 
 this land that one who has committed a bailable offense 
 shall not be admitted to bail because he may repeat the 
 offense? I think not — I know it is not. 
 
 Again, the court says : 
 
 "The arrest and detention of an insurrectionist either actually 
 engaged in acts of violence or in aiding and abetting others to 
 commit such acts, violates none of his constitutional rights. He is 
 not tried by any militarj' court, or denied the right of trial by jur}'; 
 neither is he punished for violation of law, nor held without due 
 process of law. His arrest and detention in such circumstances are 
 merely to prevent him from taking part or aiding a continuation of 
 the conditions which the governor, in the discharge of his official 
 duties and in the exercise of the authority conferred by law, is 
 endeavoring to suppress." 
 
 I know of no authority that vests in the governor the 
 power to arrest one who he may think will commit an 
 offense. No such power is granted by the constitution nor 
 bestowed by statute. The courts of the state are open and 
 in the unobstructed performance of their functions. Most 
 persons would regard restraint of liberty for the period 
 of nearly ninety days as a punishment ; and when the court 
 says that the petitioner, by his detention, loses none of his
 
 THE OPINION IN THE MOVER CASE I5I 
 
 constitutional rights, it ignores, it seems to me, that section 
 of the constitution which provides that no person shall be 
 deprived of his liberty without due process of law. For, 
 suppose it should transpire that the petitioner is not guilty 
 of any offense, would not his imprisonment without charge 
 and for the purpose of preventing him from committing an 
 offense be an injustice? The court has presumed that this 
 man is an insurgent; the presumption of law is that he is 
 innocent. He asserts that he is not guilty, and no one has 
 charged that he is guilty. The only statement made which 
 in any way implicates him is that of the adjutant general, 
 who says that he became convinced by inquiry that he was 
 the leader of a band of lawless men. Moyer may be guilty 
 of the most heinous offenses. It may be that he deserves to 
 linger in prison the remainder of his natural life. But he is 
 entitled to his liberty unless some one in proper form and 
 before a proper tribunal charges him with violation of the 
 law. But the court says he is held by due process of law. 
 Whatever war power the governor may have, this power is 
 not due process of law. Justice Paine, of the Supreme Court 
 of Wisconsin, in the case In re Kemp (16 Wis., 419), says: 
 
 "The executive, as such, can only execute the politics of the 
 nation — that is, he executes the laws. Undoubtedly, the constitution 
 and laws do in many instances trust matters to the discretion of 
 the executive. In such instances no other department can control 
 the exercise of that discretion, but all are bound by it. But the 
 difficulty in applying that doctrine in the manner attempted by the 
 attornev general is that the constitution and the laws have not 
 entrusted to the executive, unless in cases where the writ of habeas 
 corpus is legally suspended, any political discretion to imprison the 
 people. On the contrary, that matter was deemed of such vital 
 importance that the people regulated it in the fundamental law of 
 their politics, and provided that 'no person shall be deprived of his 
 life, liberty or property without due process of law.' The constitu- 
 tion knows no 'political' process, no 'political' cause of imprison- 
 ment. There must be a 'process of law,' a legal cause of restraint. 
 And the power to determine what is a legal imprisonment, and to 
 discharge from any that is illegal, is, except when the writ Is sus- 
 pended, a power conferred on the judicial department."
 
 1^2 ROBERT WILBUR STEELE 
 
 Again the court says : 
 
 "If, then, the military may resort to the extreme of taking 
 human life in order to suppress insurrection, it is impossible to 
 imagine upon what hypothesis it can be successfully claimed that 
 the milder means of seizing the persons of those participating in the 
 insurrection or aiding and abetting it may not be resorted to." 
 
 The power to take the life of an insurgent does not 
 include the power to take the life of a person not an insur- 
 gent. And, if that be true, then by the process of reasoning 
 that the court adopts, if the military authority may not take 
 the life of one not an insurgent, they may not imprison a 
 person who is not an insurgent. The question is, may the 
 military authorities, when a county is declared to be in a 
 state of rebellion, arrest any person, whether guilty or inno- 
 cent, and detain him until the executive declares that order 
 has been restored*? This question is not answered by the 
 assertion that as the military "may resort to the extreme of 
 taking human life in order to suppress insurrection, it is 
 impossible to imagine upon what hypothesis it can be suc- 
 cessfully claimed that the milder means of seizing the 
 persons of those participating in the insurrection or aiding 
 and abetting it may not be resorted to." The question can 
 be answered in the affirmative in no other way than by 
 declaring that the executive has the power to suspend the 
 privilege of habeas corpus, or by declaring that martial law 
 prevails whenever the executive so proclaims. The decision 
 has applied the articles of war to conditions that do not 
 justify their application. Whatever may be said of the 
 deplorable condition in San Miguel County that resulted 
 in foul assassinations, in murder and in plunder, so revolt- 
 ing to the law-abiding citizen, these conditions were past 
 at the time the petitioner was taken there. The civil author- 
 ities of the county, with the aid of the military, had full 
 possession and control ; and if the petitioner was in any way 
 implicated in the commission of these foul crimes, it should 
 have been so charged.
 
 THE OPINION IN THE MOYER CASE I53 
 
 The court then says : 
 
 "No case has been cited where the precise question under con- 
 sideration was directly involved and determined, but in cases where 
 the courts have had occasion to speak of the authority of the mili- 
 tary to suppress insurrection and the means which may be employed 
 to that end, it has been stated that parties engaged in riotous con- 
 duct render themselves liable to arrest by those engaged in quell- 
 ing it." 
 
 Chancellor Kent, at page 8 of volume 2 of his Com- 
 mentaries, says : 
 
 "It requires more than ordinary hardiness and audacity of 
 character to trample down principles which our ancestors cultivated 
 with reverence, which we imbibed in our early education, which 
 recommend themselves to the judgment of the world by their truth 
 and simplicity, and which are constantly placed before the eyes of 
 the people, accompanied with the imposing force and solemnity of a 
 constitutional sanction." 
 
 What connection there is between the right of a mili- 
 tary officer to arrest a person on suspicion only and hold him 
 ;yithout preferring any charge against him, because he fears 
 he may commit an offense, and the right of an officer to 
 arrest a rioter caught red-handed, I cannot comprehend. 
 Although it is true, as stated by the court, that the precise 
 point upon which the decision rests has never been deter- 
 mined by other courts, it is not because that point was not 
 presented and urged by counsel, nor because the opportunity 
 for so deciding was not afforded the judges; and it must be 
 that the reason the point has not been sustained by some 
 other court is that no other court could concede to the exec- 
 utive all the power he would have if the privilege of the 
 writ of habeas corpus were suspended without determining 
 that he had the power to suspend the writ. During the 
 great rebellion, when millions of soldiers were in the field 
 and when hundreds of persons in the loyal states were sus- 
 pected of actively aiding those engaged in the rebellion, and 
 arrested, the courts might have held that the necessity for 
 putting down the rebellion carried with it the power to
 
 154 ROBERT WILBUR STEELE 
 
 arrest and detain suspected persons, notwithstanding the 
 guarantees of the constitution, but not one of them did so. 
 There is no dearth of authority in this country or in Eng- 
 land directly contrary to the ruling of this court. 
 
 I can find no middle ground to stand upon ; and I 
 most certainly cannot assent to the novel doctrine announced 
 by this court. If one may be restrained of his liberty with- 
 out charge being preferred against him, every other guar- 
 antee of the constitution may be denied him. For, as said 
 by the Supreme Court of Illinois : 
 
 "It is undeniable, if the government have the right to arrest 
 him without a warrant and imprison him without a trial or charge 
 of any criminal offense, it had an equal right to send his case before 
 a court martial or military commission. The right to do the one 
 necessarily implies the right to do the other, because both rest on 
 the same theory of power to be exercised by the government in time 
 of war. If it was lawful to arrest and imprison the plaintiff without 
 any form of judicial investigation, it would certainly have been 
 not less lawful to do the same thing upon the finding and sentence 
 of a military tribunal. It can hardly be said that the laws of war 
 could be applied to the plaintiff for the purposes of punishment, but 
 not for the purposes of trial." (Johnson vs. Jones, 44 111., 156.) 
 
 The constitutional privileges are not, in the nature of 
 things, separable. It was intended by our fathers that all 
 should be inviolable except one, and that to be suspended 
 by the legislature only in case of great emergency. Martial 
 law exists or it does not exist. When it exists there is no 
 civil law. Martial law and civil law cannot exist together. 
 If the civil law can enforce one guarantee, it can enforce 
 all. If the civil law is overthrown it is powerless to enforce 
 any right. When martial law does not prevail, unless the 
 privilege of the writ of habeas corpus is suspended, every 
 right guaranteed by the constitution is enforceable; and the 
 constitution is violated, rudely violated, when one is 
 deprived of liberty without due process of law. 
 
 Habeas corpus is a proper remedy to release from arbi- 
 trary arrest, and, unless its privileges have been suspended,
 
 THE OPINION IN THE MOYER CASE 155 
 
 one is not subject to arrest on suspicion merely, and deten- 
 tion beyond the time fixed by statute for return to the writ. 
 As the privilege of the writ has not been suspended, as the 
 courts are open, as martial law does not prevail, and as no 
 charge has been preferred against the petitioner, he should 
 be discharged. 
 
 The greatness of this country consists in being able to 
 protect, by the shield of its constitution, the humble and the 
 exalted, the pure and the wicked. We gave the wretched 
 Guiteau, Prendergast and Czolgosz trials by due form of 
 law, and by so doing we strengthened the nation at home 
 and abroad. Had we departed from the principles declared 
 by our fathers, we should have lessened the liberty of every 
 citizen and imperiled the title to all property. 
 
 When we deny to one, however wicked, a right plainly 
 guaranteed by the constitution, we take that same right from 
 everyone. When we say to Moyer, "You must stay in 
 prison because, if we discharge you, you may commit a 
 crime," we say that to every other citizen. When we say 
 to one governor, "You have unlimited and arbitrary power," 
 we clothe future governors with that same power. We 
 cannot change the constitution to meet conditions. We 
 cannot deny liberty today and grant it tomorrow ; we cannot 
 grant it to those theretofore above suspicion and deny it to 
 those suspected of crime ; for the constitution is for all men 
 — "for the favorite at court, for the countryman at plow" — 
 at all times and under all circumstances. 
 
 We cannot sow the dragon's teeth, and harvest peace 
 and repose; we cannot sow the wind and gather the restful 
 calm. 
 
 Our fathers came here as exiles from a tyrant king. 
 Their birthright of liberty was denied them by a horde of 
 petty tyrants that infested the land — sent by the king to 
 loot, to plunder and to oppress. Arbitrary arrests were
 
 156 ROBERT WILBUR STEELE 
 
 made; and judges, aspiring to the smile of the prince, 
 refused by "pitiful evasions" the writ of habeas corpus. 
 Our people were banished; they were denied trial by jury; 
 they were deported for trial for pretended offenses ; and they 
 finally resolved to suffer wrong no more, and pledged their 
 lives, their property and their sacred honor to secure the 
 blessings of liberty for themselves and for us, their children. 
 But if the law is as this court has declared, then our vaunted 
 priceless heritage is a sham, and our fathers stood "between 
 their loved homes and the war's desolation" in vain.
 
 CHAPTER IX 
 
 FREE SPEECH AND A FREE PRESS 
 
 "That no law shall be passed impairing the freedom of speech; 
 that every person shall be free to speak, write or publish whatever 
 he will on any subject, being responsible for all abuse of that 
 liberty; and that in all suits and prosecutions for libel the truth 
 thereof may be given in evidence, and the jury, under the direction 
 of the court, shall determine the law and the fact." — Colorado 
 Constitution, Bill of Rights, section 10. 
 
 "That newspapers sometimes indulge in unwarranted criticism 
 of the courts cannot be denied. In some instances they construe 
 liberty of the press as a license to engage in wholesale abuse of the 
 court, but these instances are rare and do not warrant a departure 
 from the well settled principles of law as declared by congress and 
 construed by the courts. If judges charged with the administration 
 of the law are not to be criticised on account of their official con- 
 duct, the liberty of the press is abridged and the rights of individ- 
 uals are imperiled." — Judge Pritchard, U. S. Circuit Court North 
 Carolina, July, 1904. 
 
 "For no judge and no court, high or low, is beyond the reach 
 of public and individual criticism." — Justice Brewer, when judge of 
 the Supreme Court of Kansas. 
 
 "I do not contend that one who in open court charges a judge 
 with corruption may justify his act by proof that his charge is true, 
 but I do contend that when the alleged contempt consists of the 
 publication in a newspaper of defamatory accusations, such publica- 
 tion is not contempt, but libel, and that the constitution intervenes 
 to prevent that offense from being tried by judges who are smarting 
 under a sense of injury; and that when a court takes cognizance of 
 a newspaper libel, either directly or remotely connected with a 
 pending case, upon the ground that the publication was calculated 
 and intended to influence its action, it ought, nevertheless, to prose- 
 cute and convict only for the contempt, and not for the libel ; and 
 that, so far as the libel is concerned, the truth is always a justifica- 
 tion, no matter what the court is pleased to call the offense." — 
 Justice Robert W. Steele, the dissenting opinion in the Patterson 
 case. 
 
 In the latter part of the year 1905 there came into the 
 Supreme Court of Colorado a case which was, in its prac- 
 tical effect if not in its legal significance, an arraignment 
 of the newspapers of Colorado. Primarily an action for 
 contempt against the News-Times Publishing Company and
 
 158 ROBERT WILBUR STEELE 
 
 former Senator Thomas M. Patterson, it involved in its 
 discussion and its decision the constitutional right of free 
 speech, the privilege of the public newspaper to criticise 
 public officials, and in a measure the entire subject of the 
 rights, the duties and the relations of newspapers, their 
 editors and proprietors, toward the courts, the government 
 and the people of the state. 
 
 An opinion had been prevalent for some time among 
 the people that the average daily newspaper was to be 
 counted among the forces of disorder and lawlessness, and 
 this opinion had been strengthened by glaring examples of 
 sensationalism and partisanship on the part of some news- 
 papers and also by earnest efforts on the part of those who 
 had personal reasons for shunning the light of newspaper 
 publicity. Yet it is easy to show that the newspapers of 
 that time were in far greater danger of becoming the con- 
 trolled organs of machine politicians and of the great finan- 
 cial and corporate interests than they were of catering to 
 the passions of the mob and aiding the forces of anarchy. 
 
 It is a long step in human progress from Benjamin 
 Franklin's "letters" and his hand press to the complicated 
 typesetting machines and the web perfecting presses that 
 turn out many-paged and many-colored newspapers, a thou- 
 sand copies in a single minute. To start or to conduct a 
 newspaper in modern days requires much more than an 
 ardent desire and a few dollars. A linotype machine costs 
 $3,500. A perfecting press represents an investment of 
 $20,000 or more, in addition to the expensive electrical 
 equipment necessary to supply motive power. Even tht 
 reporter writes with a hundred-dollar typewriter instead of 
 with a five-cent lead pencil. And that is far from being all 
 the difference between the old and the new. A nose for 
 news and a pair of shears still have their important place in 
 newspaper work, but a real daily newspaper has to have the
 
 FREE SPEECH AND A FREE PRESS I59 
 
 service of the great co-operative news gathering association, 
 and that is a matter not merely of a regular payment of a 
 large amount of money, but also of a right of membership 
 that is jealously guarded and exorbitantly valued. 
 
 The modern newspaper is enormously capitalized. It 
 is not, and it cannot be, a free press in the sense of being 
 an open medium for the expression of the opinions of every- 
 one that has a craving to sound his thoughts in the public 
 ear. Its freedom is limited by the sources of its capital and 
 of its income, by its stockholders on one side and by its 
 advertisers or its subsidizers — if it has any — on the other. 
 Under such conditions there is comparatively small danger 
 that the modern nev/spaper will become the vehicle of such 
 folly, vituperation and ailarchism as characterized the pla- 
 card, the pamphlet and the cheaply produced newspaper of 
 early days. There is far greater danger that it may become 
 allied with the forces of inordinate wealth and special privi- 
 lege. A daily newspaper in an American city of a hundred 
 thousand people may easily represent a capitalized invest- 
 ment of a half million dollars. Almost inevitably it must 
 be a defender of law and order and an advocate of the 
 rights of property, for it belongs in the ranks of moderate 
 wealth, law and order are a necessity for its own business, 
 and the rights of property are its own rights. 
 
 That the modern newspaper has been the center of a 
 great struggle for its possession and control everyone knows 
 who knows anything about the inside of newspaper work in 
 recent years. On one side a persistent effort has been made 
 to subjugate the newspaper to the forces of machine politics. 
 Public advertisements, such as tax lists, election notices 
 and lists of nominations, paving and sewer notices, financial 
 statements, laws and ordinances proposed or passed, and 
 other similar forms of publicity, controlled by political 
 machines, have been used to whip newspapers into line for
 
 l60 ROBERT WILBUR STEELE 
 
 partisan uses. Laws have been passed, nominally in the 
 interest of non-partisanship, by which partisan loyalty was 
 made the qualification for public advertising. 
 
 From another side there has been in many cases a 
 strong and purposeful effort to bring the newspapers under 
 the control of large business interests and to make them the 
 voice, not of public opinion, but of special interests, and the 
 methods by which this purpose was forwarded have ranged 
 from outright purchase, through innumerable forms of sub- 
 sidies, loans and contributions. 
 
 In general, the American newspaper has resisted these 
 attempts at its subjugation to a surprising degree, but the 
 reason for this is a very simple matter of business. Inas- 
 much as its success is dependent upon the favor with which 
 it is received by the public, it must represent the opinions 
 and the desires of at least a considerable portion of the 
 people of the community in which it circulates. If there 
 ever was a time when the average reader was willing to 
 accept a newspaper statement as authoritative, without con- 
 sideration of the personal source of the utterance or the 
 motives that lay back of it, that time is long past. The 
 average newspaper reader of today is both skeptical and 
 critical, and, with all due credit to the "power of the press," 
 which is undeniably great, the supreme skill of the modern 
 editor lies in interpretation and not in prophecy. The 
 modern newspaper reader does not want to be told what he 
 ought to think, but what he already thinks. The newspaper 
 that seems to have the strongest influence is merely the one 
 that has the greatest skill in forecasting what the people 
 are going to think and to do, and in agreeing with them, in 
 advance. 
 
 The modern newspaper is not unpurchasable in the 
 sense that its material possessions cannot be bought. Com- 
 pany stock, name, press, typesetting machines. Associated
 
 FREE SPEECH AND A FREE PRESS l6l 
 
 Press membership and all the minor items of its inventory 
 may be sold. But the good will of the public cannot be 
 sold or transferred, except in a minor and limited degree ; 
 for the good will and confidence of the people are depend- 
 ent upon the skill and fidelity with which the directors of 
 a newspaper are able to discern and to express and to pro- 
 mote the wishes and the opinions and the interests, not of 
 their owners, not directly and primarily of their advertisers, 
 but of their readers. 
 
 The modern newspaper is unpurchasable, not because 
 of any superior virtue of its owners and editors above their 
 fellow men, but because the power of the modern newspaper 
 is not inherent in a material instrument and machine that 
 can be transferred from one ownership to another to serve 
 the selfish purpose of its temporary possessor or master. 
 
 If such be the case — if the modern newspaper, save 
 for rare exceptions, is inseparably bound in its interests 
 with the forces of law and order and to the rights of prop- 
 erty ; if it is far more seriously threatened by the control 
 of wealth and privilege than by the passions of the mob ; 
 and if it retains through the inevitable circumstances of its 
 business existence the confidence of a large portion of the 
 people and thereby serves its legitimate function as a voice 
 of public sentiment — its constitutional liberties ought not 
 to be abridged. The power of the press, as a factor in 
 business, politics and government, has increased with the 
 passing years ; but in the exercise of that power it is the 
 people, rather than the public officials, or the great corpora- 
 tions, or the political bosses, who need additional safeguards. 
 The recognition of this need has brought the recent require- 
 ment of a periodic statement of owners, editors and bond- 
 holders as a condition of second class mail privileges. 
 
 In the case against the News-Times and Senator Pat- 
 terson questions of constitutional right, of the liberties of
 
 l62 ROBERT WILBUR STEELE 
 
 the people, and broad and far-reaching principles of public 
 policy were involved, and it is for that reason that Justice 
 Steele's dissenting opinion in this case deserves to rank with 
 such a fundamental argument for liberty as was presented 
 in the Moyer case. The right of free speech and of a free 
 press must always remain as a priceless instrument and 
 safeguard of liberty, and a great judge could render but 
 few services of greater importance than to perceive when 
 this right was impaired or endangered, and to set himself 
 resolutely to its defense. 
 
 In its decision the Supreme Court ruled that the articles 
 and cartoons constituted constructive contempt, that the 
 offense consisted in the publication of such matter, and that 
 it was entirely immaterial whether the matter published was 
 true or false. It should be noted in passing that the use 
 of the word "contempt" in this connection is both unfortu- 
 nate and misleading to the ordinary reader. Even the 
 honorable judges of many courts seem to have found it 
 hard to understand that personal depreciation of their 
 ability, their wisdom or their integrity is not an offense that 
 they have a right to punish. A judge as an individual may 
 be utterly contemptible, and every honest citizen may feel 
 for him that contempt which he merits without coming 
 under any prohibition of the law. A citizen may even 
 cherish, if he please, a profound and utter contempt of a 
 judge who is wholly unworthy of such disesteem, without 
 incurring any legal penalty. Furthermore, a citizen has 
 the same right to express his disapproval of a judge, by 
 word of mouth or by publication in a newspaper or else- 
 where, that he has to express his contempt of any citizen, 
 or of any public official, subject to the law of libel and 
 subject to the further condition that he shall not interfere 
 with the course of justice in the conduct of the courts. That 
 freedom of speech and of writing is a constitutional right.
 
 FREE SPEECH AND A FREE PRESS 163 
 
 guaranteed to him by the constitutions of the nation and 
 the state, and committed to the keeping of the judicial 
 department together with other rights that constitute the 
 written charter of liberty. 
 
 "Contempt," as a crime against the courts, involving 
 punishment by fine or imprisonment, is an interference with 
 the course of justice — that and nothing else. Primarily it 
 is an act committed in the presence of the court tending to 
 disturb its proceedings, to weaken its authorit)' or to affect 
 its decisions ; or a disobedience to its rules, orders or proc- 
 esses. Secondarily it is such an act, wherever committed, 
 as will interfere with the free and impartial acts and judg- 
 ments of the courts, and this secondary contempt is what 
 the lawyers call "constructive contempt." A judge, as a 
 judge, properly comes within the protection of contempt 
 proceedings, for he is a part of the machinery of the law, 
 and an interference with him when acting officially is an 
 interference with the course of justice. The judge as an 
 individual or as a political partisan or candidate does not 
 properly stand within the scope of that protection. The 
 power to punish for contempt is given to the judge in order 
 to enforce his official authority and to prevent interference 
 with the course of justice, and the judge has no more right 
 to use that power to salve his wounded self-love, or to pro- 
 mote partisan advantage, or to protect himself from per- 
 sonal or political criticism, or to serve any other personal 
 and selfish interest, than he has to send his enemy to the 
 gallows for cause of personal hatred or to appropriate the 
 furnishings of the courtroom to his private use. 
 
 There is no dispute about these principles, for they are 
 universally acknowledged, at least in theory. But construc- 
 tive contempt, which is to say a secondary and indirect 
 interference with the course of justice, covers a vast field 
 of doubtful and debatable ground, and it is in that field
 
 164 ROBERT WILBUR STEELE 
 
 that the decision in the Patterson case is to be located. The 
 majority opinion in that case, which is the decision of the 
 court, holds that the publication of certain articles and 
 cartoons published in the Times and the News in the year 
 1905 constituted an interference with the court, and that the 
 truth of those articles could not be alleged as a justification 
 for such interference. Upon the law and the facts that 
 decision stands as the supreme legal authority in this state, 
 and the Supreme Court of the United States has upheld the 
 right of this court to act within its jurisdiction in this mat- 
 ter. The view of the case from the opposite side is fully 
 and most ably set forth in the dissenting opinion of Justice 
 Robert W, Steele, which is printed in full as the following 
 chapter of this book. There is nothing that can be added 
 to its clear exposition of the legal and constitutional prin- 
 ciples involved, to the weight of authorities cited or to the 
 powerful and illuminating exposition of the public interests 
 concerned. 
 
 The student and historian of current events may well 
 consider the Patterson case in a wider light than is proper 
 or convenient for the lawyer or the judge. It would not 
 be justifiable to assert as a fact what was believed by many 
 at that time, that the contempt proceedings against Senator 
 Patterson were the result of a deliberate purpose to punish 
 him for his partisan activities, or that they represented an 
 intentional step toward fixing the control of a group of 
 large corporations upon the newspapers as a part of a great 
 conspiracy to seize and hold the government. It is a fact 
 that there has been manifested a tendency, nation-wide in 
 its extent, to commercialize and to control the great daily 
 newspapers by large and powerful special interests, and in 
 particular by the public utility corporations, and the full 
 significance of the Patterson case cannot be understood 
 except in this connection.
 
 FREE SPEECH AND A FREE PRESS 165 
 
 It is true, further, that the Patterson case, in the criti- 
 cisms to which objection was made, and in the opinions 
 rendered by the majority and the minority of the court, was 
 the outgrowth of other controversies, mainly partisan as 
 well as political in their nature. In his formal answer to 
 the charge of contempt, which will be found on page 283 
 et seq. of volume 35 of the Colorado Reports, Senator 
 Patterson avers that a large number of public utility and 
 industrial corporations, specified by name, with the mine 
 owners' association of Cripple Creek, determined through 
 their agents and representatives to secure the renomination 
 and re-election of Governor Peabody, in order that they 
 might, among other inducements, secure from him the nomi- 
 nation of two Supreme judges whom the governor was 
 authorized to appoint, to the end that the utility corpora- 
 tions might obtain decisions from the Supreme Court con- 
 firming, extending and securing to them immensely valuable 
 franchises, and that the railroad and other corporations 
 might obtain decisions favorable to them in the many cases 
 in which they were being constantly involved ; that the said 
 Peabody and the said agents and representatives of said 
 corporations entered into a contract and agreement that if 
 he should be renominated and re-elected through and by the 
 agency of the said corporations and the money they might 
 expend therefor he would permit them to name the persons 
 for the two judgeships. On information and belief he fur- 
 ther averred that these corporations contributed $40,000 to 
 secure the renomination of Peabody, and that they contrib- 
 uted $200,000 to secure his re-election ; that after Peabody 
 had been defeated in the election these corporations under- 
 took to induce the legislature to change the returns so as to 
 show the election of Peabody; that the supervision of the 
 general election of November, 1904, by the Supreme Court, 
 was a part of this corporation conspiracy, as was the further
 
 l66 ROBERT WILBUR STEELE 
 
 direction of that court regulating the canvassing of the 
 returns ; and that the Adams-Peabody contest in the legis- 
 lature, and the final arrangement by which the lieutenant 
 governor became acting governor, and the appointment of 
 two judges of the Supreme Court, were a part of the devel- 
 opments of this conspiracy. 
 
 "And the respondent avers that to state the truth is not and 
 cannot be a criminal contempt of this honorable court, and he avers 
 upon information and belief that the allegations and statements in 
 the said published articles for which he is arraigned, omitting the 
 innuendoes inserted therein, in the information, by the attorne}' 
 general, are true, and this respondent especially sets up and claims, 
 under the constitution of the United States and under the constitu- 
 tion and laws of the state of Colorado, the right and privilege of 
 introducing witnesses to prove the truth of such allegations, aver- 
 ments and statements in said published articles contained, and of 
 the things set up herein as his justification and defense. All of 
 which matters and things hereinabove contained this respondent 
 stands ready to maintain and prove." 
 
 The Moyer case, involving the basic right of personal 
 liberty ; the Adams-Peabody controversy ; the then pending 
 matter of the right of cities to local self-government; the 
 assumption of judicial control of state elections; the domi- 
 nation of the state government by the system of machine 
 politics through which the bosses of the political machine 
 nominated, elected and in large measure controlled all 
 branches of the state government, executive, judicial and 
 legislative — formed the subject matter with which Senator 
 Patterson flayed those justices of that high tribunal who 
 were under the power of his lash. Much of that criticism 
 was shocking to the sober-minded citizens of the state, 
 regardless of its truth or falsity ; some of it, perhaps, was 
 libelous, though that has not been determined; much of it 
 was constructively contemptuous, for upon that the highest 
 legal authority of the state has recorded its formal decision 
 and has enforced its punishment therefor in a fine of one 
 thousand dollars. But the decision of the court, however
 
 FREE SPEECH AND A FREE PRESS 167 
 
 great its authority is in matters of law, is not supreme in 
 matters of public policy. The judges say what the law is; 
 but the people make both the law and the judges, provided 
 always that the American system of popular self-govern- 
 ment by the will of the majority of the people is in full 
 force and effect. 
 
 For the judge who acknowledges his commission from 
 the people and not from the machine, who invariably holds 
 his official conduct to the standard of the public welfare, 
 who. never uses his official authority to serve the ends of 
 partisan advantage or selfish interest, who is untiringly 
 vigilant for the maintenance of every safeguard of popular 
 liberty which the fathers have established, and who is 
 serenely and sincerely conscious of his own integrity of act 
 and motive, "constructive contempt," as a method of protec- 
 tion for personal or official dignity, seems but a poor and 
 shabby cloak. From the invulnerable shield of his integrity 
 the shafts of envy and malice fall broken to the ground, 
 while the weapons of partisan calumny only rebound to 
 strike down, amid the popular applause, those that wield 
 them. 
 
 "The truth is no defense in a proceeding for contempt 
 against the publisher of a newspaper for publishing articles 
 charging a court or the judges thereof with being influenced 
 by corrupt motives in their actions with reference to a pend- 
 ing cause." That is the law, for the judges of the Supreme 
 Court of Colorado (Mr. Justice Steele dissenting), with 
 full authority, have so ruled. 
 
 And the people of the state of Colorado since that 
 decision have written into the organic law of the state both 
 the recall of judges and the recall of judicial decisions. 
 And that also is the Law.
 
 CHAPTER X 
 
 THE OPINION IN THE PATTERSON CASE 
 
 On February 6, 1906, the Supreme Court of Colorado 
 handed down its decision in the case against the News- 
 Times Publishing Company and Thomas M. Patterson. 
 This opinion was written by Justice Julius C. Gunter, and 
 it was approved by Justices Gabbert, Campbell, Bailey, 
 Maxwell and Goddard. At the same time a minority opin- 
 ion was returned by Justice Robert W. Steele. Both these 
 opinions are to be found in volume 35 of the Colorado 
 Reports, beginning on page 253. The majority opinion 
 occupies 142 printed pages, and its principal conclusions 
 are thus summarized in that volume: 
 
 "7. Articles published in a newspaper of general circulation 
 charging the Supreme Court and certain of its judges with having 
 been influenced by corrupt motives in their rulings theretofore made 
 in pending causes, and that they would be so influenced in the final 
 disposition of the same, constitute criminal constructive contempt. 
 
 "8. In a proceeding for contempt against the publisher of a 
 newspaper for publishing articles charging a court or the judges 
 thereof with being influenced by corrupt motives in their actions 
 with reference to a pending cause, the truth of the publication is no 
 defense. Neither is it a defense to show that there was no intent 
 to commit contempt. Nor to show that the court was not affected 
 by the contemptuous language." 
 
 Justice Steele's dissenting opinion may be found in 
 the same volume, beginning on page 395, and it is as fol- 
 lows : 
 
 Mr. Justice Steele, dissenting: 
 
 The court has punished the respondent for a mere 
 libel, under a proceeding for contempt; and has held that 
 the truth is not a justification, and that, when the truth is 
 pleaded as a justification, the pleading of it is a direct 
 contempt and as such is punishable summarily. To do this
 
 THE OPINION IN THE PATTERSON CASE 169 
 
 it was necessary for the court to set aside acts of the legis- 
 lature and to hold that that section of the bill of rights 
 which declares that "every person shall be free to speak, 
 write or publish zohatever he zuill on any subject, being 
 responsible for all abuse of that liberty; and that in all 
 suits and prosecutions for libel, the truth thereof may be 
 given in evidence, and the jury, under the direction of the 
 court, shall determine the law and the fact," is inapplicable. 
 As I am of opinion that it is not a crime in this state to 
 speak, write or publish the truth of or concerning the official 
 conduct of public officers, I must dissent from the judg- 
 ment. 
 
 The respondent's purpose in publishing the articles 
 complained of is briefly stated in his reply to the question 
 by the chief justice whether he had anything further to say 
 why the judgment of the court should not be pronounced. 
 He said : 
 
 "I feel, if your honors please, that, without having the slightest 
 idea what punishment the court will inflict, under the circumstances 
 of this very peculiar case I should say something why I should not 
 be punished for contempt. 
 
 "Certain articles were published in The Neivs and T/ie Times 
 for which the writing or publication, or both, I was and am respon- 
 sible. 
 
 "The chief justice, in his own way, saw fit to initiate contempt 
 proceedings by reason of these articles, and as a result of his steps 
 the attorney general filed this information, commanding that I 
 should show cause why I should not be punished for contempt, the 
 allegations in the information being that these articles were con- 
 temptuous of the Supreme Court and certain of its judges. 
 
 "This court can rest assured that when that information and 
 citation were served upon me I was confronted with perhaps as 
 serious a situation as I have ever been face to face with in all the 
 years of my manhood. I have felt, if the court pleases, the impor- 
 tance of maintaining the honor and dignity, not only of this court, 
 but of minor courts, as keenly and as sincerely as any other citizen 
 of the commonwealth; and one of the most gratifying episodes in 
 my life was when Mr. Justice Campbell, now upon the bench to 
 try me, but a few years ago commended me in the warmest terms 
 for the respect I had always shown to courts with which he was 
 associated, whether sitting as a Jiisi priiis judge or as a member of 
 this great body.
 
 lyO ROBERT WILBUR STEELE 
 
 "I want to say to the court that I realize as keenly as any man 
 in the United States the importance of an unsullied judiciary, and 
 the importance of that judiciary ever maintaining the respect and 
 the confidence of the people, for, if all else fails, it may be that 
 the people of this country must depend upon the justice, the integ- 
 rity and the patriotic spirit of our highest courts to preserve the 
 liberties of the country. 
 
 "But, if your honors please, I have always felt that there should 
 be reciprocity between courts and the people. While the courts 
 should receive the respect and confidence of the people, there is a 
 duty devolving upon the courts to ever maintain the law and the 
 integrity of the constitution, and to keep within the limits pre- 
 scribed by the constitution and laws of the state and the country; 
 and in every one of their judgments, as their consciences tell them, 
 to do the very right, and nothing but the right. If these relations 
 exist between the people and the bar upon the one side and the 
 courts of the country upon the other, there will be little need of 
 contempt proceedings, and there will be little provocation for criti- 
 cism either of the courts, or by the courts, of the public press. 
 
 "So far as these articles are concerned, I want to say that I 
 never wrote or published articles in my life the justice of which I 
 was more sincerely convinced of; not only convinced of the justice 
 was I, but of the necessity for their publication, and when this 
 citation was served upon me, as I said, I was confronted with the 
 most serious situation in which I had ever found m\'self in all of 
 either my public or my private life. From all the information I 
 could obtain after careful investigation — from those whose word 
 could not be doubted — I felt that whatever was in those articles 
 was justified, and the question was then up to me: Shall I, to 
 escape the wrath of the court, say that I have been a slanderer, a 
 libeler? Shall I proclaim to the public that I am infamous, in that 
 I falsely charge the Supreme Court of my state with such things as 
 are supposed to be contained in those articles? Or should I do 
 what any true man ought to do, firmly believing that he spoke the 
 truth — say that he had spoken the truth and offer to establish the 
 verity of the articles? 
 
 "That, mav it please the court, was the reason for the answer 
 I filed. 
 
 "The attorney general tells the court that this court should not 
 for a moment sit to investigate charges against its membership. I 
 can only say, if your honors please, that is the most stupendous 
 indictment that can be framed against this whole doctrine of con- 
 structive contempt; or, has it come to this in the United States, that 
 the publisher of a newspaper, because men are judges, may not 
 speak the truth of them as to their official actions, except at the 
 peril of confinement in the com.mon jail, the payment of heavy 
 monetary penalties, or both ? 
 
 "I realize, if your honors please, that so far as the legislature 
 of this state is concerned, it has done everything in its power to 
 change that condition. It has declared what shall be contempt, and 
 has omitted ever} thing with reference to constructive contempt;
 
 THE OPINION IN THE PATTERSON CASE I7I 
 
 therefore, so far as the legislature is concerned, it has eliminated 
 proceedings in constructive contempt from the powers of the court. 
 The legislature has further provided for answers in contempt pro- 
 ceedings, for investigations, for juries, has fixed a limit to the 
 power of the court in assessing punishments for contempts, and if 
 constructive contempt is to be maintained, as it has been maintained 
 by this court, it can simply mean — and I speak it in a thoroughly 
 impersonal way, so far as the membership of this court is concerned, 
 I speak it as though I were addressing an impartial jury with no 
 duty devolving upon its membership except to find and declare the 
 truth — if this is to be maintained it simply means that we have in 
 each of the states of this Union a chosen bod\' of men who may 
 commit any crime, who may falsify justice, who may defy constitu- 
 tions and spit upon laws, and yet no man dare make known the fact. 
 
 "So far as I am concerned, if the court please, I am unwilling 
 to be bound by such a system, and, therefore, if no other result is 
 to come from these proceedings beyond my own punishment than 
 the arousing of the public to the danger of such a power in the 
 hands of any body of men, a great good will have been accom- 
 plished; more, perhaps, than is necessary to compensate for what I 
 may suifer. And I only desire to say, further, before I sit down, 
 that no matter what penaltj' the court maj- inflict, from this time 
 forward I will devote myself — by constitutional amendment if nec- 
 essary, and by the decisions of the court it has become necessary — 
 to deprive every man and every body of men of such tyrannical 
 power, of such unjust and dangerous prerogative, of the ability to 
 say to publishers of newspapers: 'While about everybody else you 
 may speak the truth, no matter what our offenses may be, you speak 
 the truth with the open door of the jail staring you in the face, or 
 the depletion of what you may possess of this world's goods, and 
 probably of both.' 
 
 "If the court please, I am now ready to receive the judgment of 
 the court." 
 
 The opinion of my brother Gunter, which, I am 
 pleased to note, is based upon the doctrine of stare decisis, 
 rather than his own opinion, declares : First — That an affi- 
 davit is not essential to the jurisdiction of the court in cases 
 of constructive contempt. Second — That the offense of con- 
 structive contempt was committed by the respondent by 
 publishing the articles set out in the information and that 
 a direct contempt was committed by filing the answer. 
 Third — That it is immaterial whether the articles or the 
 averments of the answer were true or false. 
 
 I shall discuss these matters in their order, and shall 
 endeavor to demonstrate that the court, instead of announc-
 
 172 ROBERT WILBUR STEELE 
 
 ing the law applicable to the conditions of the people and 
 the institutions of this country, has revived the oppressive 
 and tyrannical doctrines of the star chamber. In no case 
 found in the Colorado Reports was the proceeding begun 
 without affidavit; and in every one, as I read them, where 
 the subject is mentioned, it is stated that an affidavit is 
 essential to the jurisdiction of the court. The attorney 
 general appears to have regarded an affidavit as necessary ; 
 for, before the return day of the order to show cause, he, 
 under leave of court, attached his verification to the infor- 
 mation. This, of course, did not cure the defect, if any 
 existed; for, if an affidavit is essential to give the court 
 jurisdiction, it must be filed as the initial step in the pro- 
 ceedings. The opinion correctly states that up to the time 
 of the decision in People vs. Wyatt, 17 Colo., 252, there 
 appears to have been no distinction made in the opinions 
 between civil and criminal contempts ; but I do not agree 
 with the court in its statement that the case of Thomas vs. 
 The People, 14 Colo., 254, which holds that an affidavit is 
 essential to the jurisdiction, has been overruled by the deci- 
 sion in the Wyatt case. The holding that an affidavit is 
 essential has been expressly affirmed; and in the Wyatt 
 case it is held that an affidavit is required by the common 
 law. The court says, in the Wyatt case : 
 
 "Constructive contempts — those not committed in the presence 
 of the court — must, of course, in some regular and legitimate way 
 be brought to the court's knowledge; until this is done the process 
 of attachment will not issue." * * * And in Gandy vs. The 
 State, supra, it is said that such proceedings must be commenced 
 by a sworn information. But the practice generally recognizecT 
 throughout the United States, and according to Blackstone fre- 
 quently followed in England, is for some proper official or inter- 
 ested party to set forth by affidavit the material facts relied on. 
 A little contrariety of opinion exists as to whether the warrant of 
 commitment or the order of court must recite the jurisdictional facts. 
 But the overwhelming weight of authority in this country sustains 
 the proposition that the affidavit upon which the proceeding for a 
 constructive contempt is based must state facts which, if estab- 
 lished, would constitute the offense; and that if the allegations of
 
 THE OPINION IN THE PATTERSON CASE 1 73 
 
 the affidavit are not sufficient in this respect the court is without 
 jurisdiction to proceed. Rapaije on Contempts, sections 93-94, and 
 cases cited; Mullin vs. The People, supra; Thomas vs. The People, 
 supra; Cooper vs. The People, supra; Wilson vs. The Territory, 
 1 Wyoming, 155; ex parte Peck, 3 Blatch. (C. C), 113; McConnell 
 vs. The State, 46 Indiana, 98; Phillips vs. Welch, 12 Nevada, 158; 
 Gandy vs. State, supra; Batchelder vs. More, 43 California, 412. 
 Some of the opinions above cited refer the authority for the affidavit 
 to statutes similar to section 322 of our civil code. But the statute 
 mentioned and others of like tenor are simply declaratory in this 
 particular of what may fairly be termed the modern common law 
 practice. And the rule concerning the materiality of the affidavit 
 should prevail to the same extent in the absence of statute. * * * 
 "The position of those authorities which hold that where the 
 contempt is constructive the affidavit must show the offense com- 
 mends itself with irresistible force. A proper regard for the liberty 
 of the citizen forbids the arrest of parties upon criminal attachment 
 charged with this kind of contempts, without information under 
 oath touching the precise character of the alleged offenses." 
 
 Wyatt was discharged for the reason that the court 
 was without jurisdiction. This, although the judgment of 
 the court recited the fact essential to jurisdiction, the affi- 
 davit failing to set forth such fact. This does not appear 
 to overrule the case of Thomas vs. The People, but appears 
 to approve it. The case is cited with approval and holds, 
 as does the Wyatt case, that unless an affidavit showing 
 facts constituting contempt is presented the court is without 
 jurisdiction; and the practice of instituting the proceeding 
 by affidavit in cases of contempt not committed in the 
 court's presence has been invariably followed in this juris- 
 diction. 
 
 In reviewing the Wyatt case the court says : 
 
 "The question that the court considers is not whether the infor- 
 mation filed in the court as a basis for the attachment should have 
 been verified, but whether or not it stated facts sufficient to consti- 
 tute a contempt of court. It held that it did not do so, not because 
 the court could not punish for constructive contempt, but for certain 
 facts omitted from the information not material to this ruling, as, 
 for example, an order of the court requiring the grand jury to make 
 the inspection refused by the respondent. The court then considers 
 the question as to whether the missing matter is supplied by the 
 answer, and while not holding whether it could or could not be so 
 supplied, held that the information was not aided in such particular 
 by the answer."
 
 174 ROBERT WILBUR STEELE 
 
 The proceeding was commenced by affidavit, not by 
 information. The court, of course, did not hold that the 
 information must be verified, but it did hold that the over- 
 whelming weight of authority sustains the position that 
 the affidavit must state facts which, if established, would 
 constitute the offense. It also holds that the principle gen- 
 erally recognized throughout the United States is for some 
 proper official or interested party to set forth by affidavit 
 the material facts relied upon, and the word "affidavit" is 
 italicized. Mr. Justice Helm, writing the opinion, says : 
 
 "It is not necessar\- to consider whether this jurisdictional 
 defect could be waived, or could be cured by answer or other sub- 
 sequent proceeding; for certain it is that such waiver or correction 
 did not take place. The judgment, it is true, says that an order of 
 court was disobeyed, and also that the grand jury was investigating 
 a criminal offense. But this judgment was rendered upon the 
 pleadings wherein no such order or its disobedience was alleged 
 or admitted. * * * There is absolutely nothing in the record, 
 save the judgment, intimating the existence of this order. To say 
 that such recitals in the judgment are sufficient would be to nullify 
 all attempts by appellate tribunals to inquire into the jurisdiction of 
 the court pronouncing the same. It would be to make that court the 
 sole arbiter as to what does or does not constitute a contempt, and 
 render the judgment itself conclusive of this jurisdictional question." 
 
 This decision, it seems to me, does not sustain the 
 contention of the court that it is not necessary that an affi- 
 davit be presented, but clearly says that an affidavit must 
 be presented, and that unless an affidavit is presented the 
 court is without jurisdiction. 
 
 As a reason for holding that an affidavit is not neces- 
 sary, the court says : 
 
 "This court has no power to compel the verification of an infor- ' 
 mation for contempt — People vs. Court of Sessions, supra — to hold 
 the verification of the information essential would be to deprive this 
 court of the power in many cases to punish for criminal constructive 
 contempts, which power, as we have seen, has been by our decisions 
 declared to be inherent and essential to the existence of the court." 
 
 This means that there may be times when no one — the 
 ever vigilant counsel, the ethical Bar Association, the zeal-
 
 THE OPINION IN THE PATTERSON CASE I75 
 
 ous friend, or the officer designated by law to represent the 
 authority of the state — would be willing — because no con- 
 tempt had in fact been committed, because it would escape 
 attention, or because the criticism was truthful and just — 
 to initiate proceedings in contempt, and that the court should 
 therefore have power to proceed ; that whenever no one else 
 is willing to maintain the dignity and honor of the court in 
 this manner that it is essential that the court itself should 
 have the power to act. It is difficult to conceive of a case in 
 which there would not be some one willing and anxious to 
 become the court's champion — although, in this instance, 
 the court proceeded upon its own motion ; and it would 
 seem to be wise for the court to ignore publications or 
 speeches charging its members with corruption and political 
 intrigue. In the case reported in 46 Kan., 613, the court, 
 in discussing this branch of the subject, uses this language: 
 
 "And a careful examination of the authorities satisfies us that 
 in all cases of constructive contempt, whether the process of arrest 
 issues in the first instance, or a rule to show cause is served, a pre- 
 liminary affidavit or information must be filed in the court before 
 the process can issue. This is necessary to bring the matter to the 
 attention of the court, since the court cannot take judicial notice of 
 an offense out of court and beyond its power of observation. There 
 are a few cases in the books where the courts have taken notice of 
 constructive contempts, and issued process without any affidavit or 
 information having been filed to bring the subject matter of the 
 contempt to the attention of the court; but such cases are very rare 
 in th's country, and the practice is nearly or <)uite obsolete. The 
 great weight of authority is certainly opposed to such practice. 
 Courts should never be required to go about looking for contempts 
 of their authority. To do so is sufficient to lower their dignity and 
 bring them into contempt." 
 
 The court in the Stapleton case was careful to say : 
 
 "This proceeding was not instituted or instigated by this court 
 of its own motion. A party whose cause was pending in this court 
 presented his sworn petition complaining of the articles published 
 by respondents, and praying protection from such assaults pending 
 the consideration and determination of his cause. We were thus 
 bound to take cognizance of his petition or give some reason for 
 refusing so to do. If we refused, what reason could we give? 
 Could we say to petitioner: 'You are a convicted criminal and
 
 176 ROBERT WILBUR STEELE 
 
 therefore you have no rights which this court is bound to 
 respect ?' * * * 
 
 "It is true this court could have disposed of the petition in this 
 case by quietly declining to take cognizance of it. Only petitioner, 
 his counsel and a few of their confidential friends, perhaps, would 
 have known of our refusal. But we should always have been 
 conscious that we had been wanting in courage to meet a disagree- 
 able issue, and that we had declined to hear a suitor because he 
 was under the ban of a public newspaper's displeasure. The only 
 just and honorable way, therefore, was to take jurisdiction of the 
 proceedings and require respondents to show cause, if any they had, 
 why they had thus deliberately and repeatedly assailed the honesty 
 and integrity of this court in and about petitioner's cause." 
 
 The court has not only taken unto itself a power which 
 most of the courts of the country do not regard as essential, 
 but it has added another section to the enumeration of 
 powers heretofore taken by the court, so that it is now essen- 
 tial to the very existence of the court that, in the event no 
 one else is willing to take«the initiative, it may proceed of 
 its own motion to attach and punish those who incur its 
 displeasure. In its struggle for existence, its necessities 
 would seem to be without limit. To assert that such a 
 power is necessary is the assertion of weakness, and inability 
 to otherwise maintain dignity and the respect of the people. 
 Of course, it is not essential to the existence of the court, 
 notwithstanding the assertion to the contrary. If it is essen- 
 tial to the existence of the court, how does it happen that 
 only a very few of the courts of the country have taken 
 this power ; that none of the federal courts could take it if 
 they would; and that the Supreme Court of the United 
 States has never regarded such a power as essential to its 
 existence ? What the court really means is this : not that 
 it is essential, but that it is convenient. That, as the 
 respondent made charges against the court which it did not 
 relish (there being no one who would voluntarily present 
 the matter), it was essential to the court's convenience and 
 satisfaction that it should proceed sua sponte.
 
 THE OPINION IN THE PATTERSON CASE I77 
 
 The respondent's plea to the jurisdiction is said to be 
 a general appearance, and it is held that by filing his plea 
 he waived the right to question the jurisdiction. The 
 respondent, even if it be conceded that by moving to quash 
 the information he entered a general appearance, could not 
 confer jurisdiction upon the court except of his person. 
 But, according to the authorities, the court has no jurisdic- 
 tion of the subject-matter unless an affidavit is presented 
 setting forth the facts constituting the alleged contempt; 
 and it will not be seriously contended that jurisdiction of 
 the subject-matter can be conferred by waiver or consent. 
 The subject under discussion has no very important bearing 
 upon the case at bar ; for the court might have sustained 
 the motion to quash and granted leave to refile, and ordered 
 respondent to answer by the return day of the order to show 
 cause. I dissent from the order overruling the motion, not 
 so much because the respondent's rights and privileges have 
 been infringed, as upon the ground that the court has, in 
 my judgment, changed the practice that has always pre- 
 vailed in this jurisdiction. 
 
 The following citations clearly declare that, unless the 
 cause is pending and the articles are calculated and intended 
 to influence the court in its decision, the court is without 
 authority to punish for contempt. They not only bear upon 
 the very subject under consideration, but discuss generally 
 the whole matter, including the liberty of the printing press 
 and the freedom of speech, and I quote at length from them 
 because they seem to controvert every conclusion reached by 
 the court. 
 
 In the case of Stuart vs. The People, 3 Scammon, 395, 
 
 after quoting from several authorities upon the subject of 
 
 constructive contempt, Mr. Justice Breese said: 
 
 "Into this vortex of constructive contempts have been drawn, 
 by the British courts, many acts which have no tendency to obstruct 
 the administration of justice, but rather to wound the feelings or
 
 178 
 
 ROBERT WILBUR STEELE 
 
 offend the personal dignity of the judge, and fines imposed, and 
 imprisonment denounced, so frequently and with so little question 
 as to have ripened, in the estimation of many, into a common law 
 principle; and it is urged that inasmuch as the common law is in 
 force here, by legislative enactment, this principle is also in force. 
 But we have said, in several cases, that such portions only of the 
 common law as are applicable to our institutions and suited to the 
 genius of our people can be regarded as in force. It has been 
 modified by the prevalence of free principles and the general 
 improvements of societj^, and whilst we admire it as a system, 
 having no blind devotion for its errors and defects, we cannot but 
 hope that in the progress of time it will receive many more improve- 
 ments and be relieved from most of its blemishes. Constitutional 
 provisions are much safer guaranties for civil liberty and personal 
 rights than those of the common law, however much they may be 
 said to protect them. 
 
 "Our constitution has provided that the printing presses shall 
 be free to every person who may undertake to examine the proceed- 
 ings of any and every department of the government, and he may 
 publish the truth, if the matter published is proper for public infor- 
 mation and the free communication of thoughts and opinions is 
 encouraged. 
 
 * * * "The right to punish for contempts committed in the 
 presence of the court is acknowledged by our statute; and while it 
 affirms a principle that is inherent in all courts of justice to defend 
 itself when attacked, as the individual man has a right to do for 
 his own preservation, it may also, with great propriety, be regarded 
 as a limitation upon the power of the courts to punish for other 
 contempts. In this power would necessarily be included all acts 
 calculated to impede, embarrass or obstruct the court in the admin- 
 istration of justice. Such acts would be considered as done in the 
 presence of the court. So of rules entered by the court prohibiting 
 the publication of the evidence or other matters while the case is 
 pending and undecided. The limitation of the power to such cases 
 only is better calculated to strengthen the judiciary and fasten it in 
 the affections and esteem of the people, who have so large a stake 
 in its purity and efficiency, than the enlarging the power to the 
 extent claimed. 
 
 "An honest, independent and intelligent court will win its way 
 to public confidence in spite of newspaper paragraphs, however 
 pointed may be their wit or satire, and its dignity will suffer less 
 by passing them unnoticed than by arraigning the perpetrators, 
 trying them in a summary way and punishing them by the judg- 
 ment of the offended party. ♦ 
 
 "It does not seem to me necessary, for the protection of courts 
 in the exercise of their legitimate powers, that this one, so liable to 
 abuse, should also be conceded to them. It may be so frequently 
 exercised as to destroy that moral influence which is their best 
 possession, until finally the administration of justice is brought into 
 disrepute. Respect to courts cannot be compelled; it is the volun- 
 tarj' tribute of the public to worth, virtue and intelligence, and
 
 THE OPINION IN THE PATTERSON CASE I79 
 
 whilst they are found upon the judgment seat, so long, and no 
 longer, will they retain the public confidence. 
 
 "If a judge be libeled by the public press, he and his assailant 
 should be placed on equal grounds, and their common arbiter should 
 be a jury of the country; and if he had received an injury, ample 
 remuneration will be made. 
 
 "In restricting the power to punish for contempts to the cases 
 specified, more benefits will result than by enlarging it. It is at 
 best an arbitrary power, and should only be exercised on the pre- 
 servative and not on the vindictive principle. It is not a jewel of 
 the court, to be admired and prized, but a rod rather, and most 
 potent when rarely used." 
 
 In speaking of Liberty of Speech and of the Press, 
 
 Cooley, in his work on Constitutional Limitations, at page 
 
 520, says : 
 
 "Except so far as those guaranties relate to the mode of trial 
 and are designed to secure to every accused person the right to be 
 judged by the opinion of a jury upon the criminality of his act, their 
 purpose has evidently been to protect parties in the free publication 
 of matters of public concern, to secure their right to a free discus- 
 sion of public events and public measures and to enable every 
 citizen at any time to bring the government and any person in 
 authority to the bar of public opinion by any just criticism upon 
 their conduct in the exercise of the authoritj' which the people have 
 conferred upon them. To guard against repressive measures by the 
 several departments of the government, by means of which persons 
 in power might secure themselves and their favorites from just 
 scrutiny and condemnation, was the general purpose, and there was 
 no design or desire to modify the rules of the common law which 
 protected private character from detraction and abuse, except so 
 far as seemed necessary to secure to accused parties a fair trial. 
 The evils to be prevented were not the censorship of the press 
 merely, but any action of the government by means of which it 
 might prevent such free and general discussion of public matters 
 as seems absolutely essential to prepare the people for an intelligent 
 exercise of their rights as citizens." 
 
 Seymour D. Thompson, in reviewing the decision in 
 
 the Stapleton case, said, in 28 American Law Review, 
 
 page 1 22 : 
 
 "The whole case, including the statement of facts and the 
 opinion of the court, furnishes very painful reading. A considerable 
 portion, both of the statement and of the opinion, is devoted to a 
 vindication of the court against insinuations and charges made in 
 language so reckless and extreme as to be unworthy on its face of 
 the slightest credit. We are not commenting on the decision for 
 the purpose of offering any opinion upon the proprietj' of the con-
 
 l80 ROBERT WILBUR STEELE 
 
 elusion of the court. Undoubtedly, the publications quoted in the 
 statement of the case constitute contempts at common law, and 
 contempts which no editor in England would dare to commit, for 
 the judges in that country would deal very severely with the authors 
 of such a publication. It must also be said that such publications 
 are a great public evil, for they tend to impair the just confidence 
 which the public should possess in the integrity of their judges — a 
 confidence which in the United States, as in the parent country, has 
 seldom been misplaced. If the constitution and statute law of 
 Colorado throw no restraints upon the power which judges possess 
 at common law to punish contempts committed against their own 
 dignity and authority, then undoubtedly the court reached the cor- 
 rect conclusion; and if the proceeding has resulted in imposing a 
 severe punishment upon the authors of those wanton and malicious 
 libels upon the integrity of the judges, no right-minded citizen will 
 regret the fact. 
 
 "But what we want to draw attention to is this: That the 
 offense thus committed, in so far as it was an offense personally to 
 the judges, should have been redressed, if worthy of notice at all, 
 in an action for damages for libel ; and that, in so far as it con- 
 sisted of public offense — an offense against the people of Colorado — 
 it should have been redressed in a proceeding by indictment against 
 the offenders, in which proceeding all questions of law and fact 
 would have been, under the principles of American constitutions, 
 committed to the decision of twelve disinterested and impartial 
 citizens, instead of being decided by the judges who themselves 
 were smarting under the sense of injury and outrage. Except so 
 far as is absolutely necessary to protect their proceedings from 
 interruption and their process from obstruction, the judges of a 
 court, whenever they arraign a person for contempt of their court, 
 present to the public the unseemly spectacle of a judge sitting in 
 his own cause. In this case it was that and little else. We doubt 
 whether the confidence of the people in the administration of public 
 justice is not more deeph' wounded by such a spectacle than by the 
 publication of the libel and the passing it by unnoticed. It is, more- 
 over, to be observed that in states where, as in Colorado, the people 
 elect their judges, it is in accordance with the spirit of our institu- 
 tions that the newspaper press should possess the same right to 
 criticise the conduct of the judges which they possess to criticise the 
 conduct of any other public officer. No sound reason can be urged 
 for exempting the judges from public criticism for their official acts 
 which will not equally apply to the officers of the legislative and. 
 executive departments of the state. The article of Mr. Pingrey in 
 a former number of this publication, which attracted attention in 
 England, contains valuable suggestions upon this question. The 
 right publicly to criticise public officers and candidates for public 
 office is a valuable popular right, which ought not to be unreason- 
 ably curtailed. But those who abuse the privilege by the publica- 
 tion of wanton and unfounded libels ought to be punished, but they 
 ought to be punished not by the officers against whom the libels are 
 written, but by the verdicts of impartial juries."
 
 THE OPINION IN THE PATTERSON CASE l8l 
 
 In the case ex parte Steinman, 95 Pa. St., 220, Chief 
 Justice Sharswood, speaking of a former opinion of that 
 court, said : 
 
 "Some of the remarks in the opinion in that case have been 
 much relied on by the learned counsel who argued as amid curiae 
 in support of the action of the court below. But there are two con- 
 siderations bearing upon the question which now exist, but did not 
 at the time that decision was rendered. The first is the new 
 provision on the subject of the liberty of the press which has been 
 introduced into the bill of rights of the constitution of 1874, and the 
 second is that at that time the judiciary was not elective. Judges, 
 in 1835, were appointed by the governor, and their tenure of office 
 was during good behavior. There might then be some reason for 
 holding that an appeal to the tribunal of popular opinion was in all 
 cases of judicial misconduct a mistaken course and unjustifiable in 
 an attorney. The proceedings by impeachment or address were the 
 course and the only course which could be resorted to effectually to 
 remedy the supposed evil. To petition the legislature was then the 
 proper step. To appeal to the people was to diminish confidence in 
 the court and bring them into contempt without any good result. 
 We need not say that the case is altered and that it is now the right 
 and the duty of a lawyer to bring to the notice of the people who 
 elect the judges every instance of what he believes to be corruption 
 or partisanship. No class of the community ought to be allowed 
 freer scope in the expression or publication of opinions as to the 
 capacity, impartiality or integrity of judges than members of the 
 bar. They have the best opportunities of observing and forming a 
 correct judgment. They are in constant attendance on the courts. 
 Hundreds of those who are called on to vote never enter a court- 
 house, or if they do, it is only at intervals as jurors, witnesses or 
 parties. To say that an attorney can only act or speak on this sub- 
 ject under liability to be called to account and to be deprived of 
 his profession and livelihood by the very judge or judges whom he 
 may consider it his duty to attack and expose, is a position too mon- 
 strous to be entertained for a moment under our present system." 
 
 The editor of the Central Law Journal, in discussing 
 the decision of the Michigan court in the case of in re Chad- 
 wick, reported in 109 Michigan, and cited with approval by 
 this court, says, on page 403 of volume 57 of that journal: 
 
 "In view of this decision it may be well to emphasize the 
 opinion which we expressed of this dictum in the case of In re 
 Chadwick, 57 Cent. L. J., 102. If, as we have said, the dictum in 
 that case was an 'unprecedented and revolutionary extension of the 
 court's jurisdiction,' how much more so is it in a case which actually 
 decides that point and attempts to sustain it by argument and the 
 citation of ancient authority. The individual members of the court
 
 l82 ROBERT WILBUR STEELE 
 
 should have no greater rights in cases of libel than the governor or 
 other officers of the state government in matters of libel. No halo 
 of immunity from public criticism should surround the heads of the 
 state's judiciary while other servants of the people, equally as 
 honorable, must stand forth in the broad light of day open to attacks 
 of adverse criticism and searching investigation on the part of the 
 press and the people. The judiciary are but men, and therefore are 
 as open to corrupting influences as those in control of any other of 
 the co-ordinate branches of government, and, like them, need the 
 deterring influence of free public criticism. Like them, also, they 
 should have their individual actions for libel. Certainly no greater 
 right to shut off adverse criticism can be given to them without 
 throwing wide open the door to the corruption of the judiciary. 
 The argument that it is the court and not the members thereof that 
 has been libeled is purely metaphysical and does not rest on the 
 facts. Every contempt of this kind that is ever committed is not 
 against the court as a court, but against the court as then consti- 
 tuted; in other words, against the particular members of the court. 
 No one but an avowed anarchist would denounce the court as an 
 institution. A good judge will make the court highly respected, 
 while a Jeffreys will bring it into contempt, but in both cases, in 
 reality, it is the judge himself who is either respected or held in 
 contempt. Any criticism not in regard to a case pending, therefore, 
 alleged to constitute a contempt, must, in nearly every instance, 
 constitute merely a libel on the judge or judges composing the 
 court, for which, like other citizens, they should have their right of 
 action, but no greater rights." 
 
 In State ex rel. Ashbaugh vs. Circuit Court, reported 
 in 39 L. R. A., page 554, the court, in considering the ques- 
 tion of constructive contempt, said : 
 
 "Important as it is that courts should perform their grave 
 public duties unimpeded and unprejudiced by illegitimate influ- 
 ences, there are other rights guaranteed to all citizens by our con- 
 stitution and form of government, either expressly or impliedly, 
 which are fully as important and which must be guarded with an 
 equally jealous care. These rights are the right of free speech and 
 of free publication of the citizen's sentiments 'on all subjects' 
 (Const. U. S., Amend. 1; Const. Wis., art. 1, sec. 3) ; the right of 
 trial by jury (Const. Wis., art. 1, sec. 5, 7), also the right to freely 
 discuss the merits and qualifications of a candidate for public office, 
 being responsible for the abuse of such right in a proper action at 
 law. In the present case it is of the utmost importance to bear in 
 mind that Judge Bailey was a candidate before the people for 
 re-election. Had he been a candidate for any other office, it would 
 not be contended by anyone that the publications in question would 
 afford ground for any other legal action than an action for libel in 
 the regular course of the law; but the claim is that because he was 
 a judge, and was holding court at that time, such unfavorable
 
 THE OPINION IN THE PATTERSON CASE 183 
 
 criticism of his past actions may be summarily punished by the 
 judge himself as for contempt. Truly, it must be a grievous and 
 weighty necessity which will justify so arbitrary a proceeding, 
 whereby a candidate for office becomes the accuser, judge and jury, 
 and may within a few hours summarily punish his critic by impris- 
 onment. The result of such a doctrine is that all unfavorable criti- 
 cism of a sitting judge's past official action can be at once stopped 
 by the judge himself, or, if not stopped, can be punished by imme- 
 diate imprisonment. If there can be any more effectual way to gag 
 the press, and subvert freedom of speech, we do not know where to 
 find it. Under such a rule the merits of a sitting judge may be 
 rehearsed, but as to his demerits there must be profound silence. 
 In our judgment, no such divinity as this 'doth hedge about' a 
 judge; certainly not when he is a candidate for public office. 
 
 "In our opinion, it is not admissible, under our constitution, that 
 a publication, however libelous, not directly calculated to hinder, 
 obstruct or delay courts in the exercise of their proper functions, 
 shall be treated and punished summarily, as a contempt of court." 
 (Storey vs. People, 79 111., 45.) 
 
 If the publication was intended to influence the decision 
 in a pending case, so as to prevent litigants from having a 
 fair and impartial trial upon the merits, it should be pun- 
 ished as contempt of court. (Sturoc's case, 48 New Hamp- 
 shire, 428.) 
 
 Mr. Justice Brewer, when a judge of the Supreme 
 
 Court of Kansas, said : 
 
 "It will be borne in mind that the remarks we have made apply 
 only while the matters which give rise to the words or acts of the 
 attorney are pending and undetermined. Other considerations apply 
 after the matters have finally been determined, the orders signed 
 or the judgment entered. For no judge, and no court, high or low, 
 is beyond the reach of public and individual criticism. After a 
 case is disposed of, a court or judge has no power to compel the 
 public, or any individual thereof, attorney or otherwise, to consider 
 his rulings correct, his conduct proper, or even his integrity free 
 from stain, or to punish for contempt any mere criticism or ani- 
 madversion thereon, no matter how severe or unjust. Nor do we 
 wish to be understood as expressing any opinion as to the power to 
 punish other than attorneys and officers of the court for language or 
 conduct even while the matter is pending and undetermined." {In 
 re Pryor, 18 Kan., 72.) 
 
 In Telegram Newspaper Company vs. Commonwealth, 
 
 172 Mass., 294, the court stated that 
 
 "The publications contained statements of facts, evidence of 
 which was not competent at the trial and was not introduced at the
 
 184 ROBERT WILBUR STEELE 
 
 trial, and they were so made that it was likely that the presiding 
 justice and the jurors would read them during the trial, and the 
 natural and probable effect of them would be improperly to influ- 
 ence the justice and the jury in the determination of the cause. 
 
 "The general rule is that to constitute any publication a con- 
 tempt it must have reference to a matter then pending in court, and 
 be of a character tending to the injury of pending proceedings upon 
 it and of the subsequent proceeding." (Percival vs. State, 45 
 Neb., 741.) 
 
 Wharton, in his work on Criminal Pleading and Prac- 
 tice, speaking of constructive contempts, says : 
 
 (Sec. 958.) "But in any view, to justify a committal, it must 
 plainly appear that the effect of the publication is to interfere with 
 the due administration of justice. 
 
 "We should remember, however, that summary conviction is a 
 process only to be used when no other remedy can protect public 
 justice from obstruction. For a judge, who supposes himself 
 insulted, to fine and imprison his supposed insulter may be neces- 
 sary, as where the insult is in open court and is of such a character 
 that unless it is summarily stopped and punished the court cannot 
 proceed with its duties; but to enable a judge to punish by summary 
 procedure contempts other than those just mentioned is to set at 
 naught, without adequate reason, some of our highest constitutional 
 sanctions. Such a process dispenses with a grand jury. It inflicts 
 punishment without conviction of a petit jury. It permits the party 
 who supposes himself injured to be the tribunal which binds over, 
 finds the bill, decides both the law and fact, convicts and sentences. 
 We are also told, though, as will be seen, erroneously, by those who 
 advocate the prerogative to its full extent, that the process is subject 
 neither to writ of error, nor to revision by habeas corpus, nor pardon. 
 But the prerogative rests on a vicious line of reasoning. The sup- 
 posed contempt is such that the judge will or will not be intimi- 
 dated or swerved by it in the discharge of his duty. If not, then 
 there is no reason for such an extraordinary remedy. If otherwise, 
 then for the judge to confess his weakness in this respect, and to 
 make this confession in so conspicuous a way, is at least as injurious 
 to public justice as is the publication in which the objectionable 
 matter is contained. But there is another view beyond this. We 
 can conceive not only of a weak judge who dreads intimidation, but 
 of a corrupt judge who dreads exposure. To give a bad, bold 
 man of this class an engine so potent as this is to take away one of 
 the few means by which he can be exposed. Certainly a preroga- 
 tive so violent and so damaging should not be exercised except in 
 case of necessity. 
 
 i(e * * * * * * 
 
 "It may well be asked why, if such an extreme remedy is neces- 
 sary in case of the judiciary, it is not in case of the executive. The 
 executive, in cases of application for pardon, exercises a semi- 
 judicial function, in which, equally with the judge trying the case,
 
 THE OPINION IN THE PATTERSON CASE 185 
 
 it is important that he should be kept free from the influence of 
 fear, favor or affection. The executive, when dealing with great 
 questions of war, or almost equally great questions of currency 
 expansion or contraction, should be in an eminent degree superior 
 to the clamor of ignorant or timid or fanatical declaimers, and to 
 the false public sentiment generated by a real but baseless panic. 
 Who, however, would consider it consistent with either law or 
 liberty for the executive to summarily arrest and imprison, without 
 the relief of bail, without the interposition of a responsible prose- 
 cutor, without examination of witnesses, without the right of subse- 
 quent revision by habeas corpus, those from whom such publications 
 should issue? Or, to take an alternative still more applicable, is 
 such a prerogative safely to be claimed for the legislature? The 
 legislature is co-ordinate in power and dignity with the judiciary. 
 The legislature, either federal or state, has, no doubt, power to 
 punish summarily for contempts by which the exercise of its dis- 
 tinctive functions is physically impeded ; but can we rightfully 
 claim for the legislature power to commit summarily persons criti- 
 cising, no matter how unfairly or corruptly, measures over which it 
 is still deliberating? But if the exercise of such a power is not 
 permitted to executive or legislature, why should it be conceded to 
 the judiciary? Or, if so conceded to the judiciary, why should we 
 withdraw from the prerogative those general considerations of 
 policy already noticed, which, while retaining for libels common 
 law prosecutions, invoke, in the institution of such prosecutions, 
 peculiar caution, tenderness and reserve? But, however these ques- 
 tions may be determined, two points remain : First, the doctrine 
 of constructive contempt is of recent introduction, not being part of 
 the common law brought with them to this country by our colonists; 
 and, secondly, it is a violent remedy, justifiable only in cases not 
 reached by bindings over to keep the peace, or bindings over for 
 trial." 
 
 The case of Myers vs. The State, 46 Ohio St., 473, 
 was the review of a cause originating in the Circuit Court 
 at Columbus. Myers and another had been jointly indicted, 
 and, upon the trial of the person joined with him in the 
 indictment, Myers caused to be published in a newspaper 
 circulated at the place of trial an article in which it was 
 charged that the indictment was returned for partisan pur- 
 poses, that the jury was never honestly drawn, and that the 
 judge, clerk and prosecutor had packed the grand jury. 
 The Supreme Court of Ohio, in considering the case, said : 
 
 "It was not the libel against the judge which constituted the 
 offense for which the respondent was liable as for a contempt of 
 court. The offense consisted in the tendency of his acts to prevent
 
 l86 ROBERT MHLBUR STEELE 
 
 a fair trial of the cause then pending in the court. It is this offense 
 which constitutes the contempt, and for which he could be punished 
 summarily; and the fact that in committing this offense he also 
 libeled the judge, and may be proceeded against by indictment 
 therefor, is no reason why he may not and should not be punished 
 for the offense against the administration of justice." 
 
 In applying the doctrine of a "pending case" the court 
 has indulged in a mere fiction and has enlarged its powers 
 as heretofore declared in the Cooper and Stapleton cases, 
 where the court held that the articles were clearly calculated 
 and intended to improperly influence a decision, and has 
 punished for contempt a publisher who criticised the past 
 action of the court. No party or person interested brought 
 the matter to the attention of the court, and those in whose 
 favor the judgments were rendered appear to have been 
 entirely satisfied that their rights would be protected and 
 that the mental poise of the court would not be affected by 
 the publications. No one will seriously contend, I think, 
 that the respondent had any intention or expectation of 
 influencing the ruling upon a motion for rehearing. The 
 parties were lost sight of completely. The judgments, while 
 affecting individuals, in effect declared a constitutional 
 amendment unconstitutional ; and the respondent con- 
 demned the judges and impugned their motives. He was 
 guilty of libel, and not of contempt, if the articles pub- 
 lished were false. That the judges regarded themselves, 
 and not the parties, and proceeded against the respondent 
 for libeling them, rather than for intermeddling in a pend- 
 ing cause, is apparent from the fact that he is the only 
 publisher in Denver against whom proceedings were com-- 
 menced, although another journal, during the period cov- 
 ered by the articles in question, was in unmeasured terms 
 commending the alleged patriotic action of the court, and 
 announced that, although petitions for rehearing would be 
 filed, they would be filed as a mere matter of form and 
 without hope of favorable action.
 
 THE OPINION IN THE PATTERSON CASE 187 
 
 The court says : 
 
 "While such causes were before tlie court upon the petition for 
 rehearing they were, as to the law of contempts, pending causes." 
 
 They were pending — theoretically. The court had 
 rendered judgment. The opinions were filed, giving reasons 
 for the judgments, as required by law. No petition for 
 rehearing had been filed when the articles were published. 
 The opinions were given out for publication, and, as they 
 involved great public questions, they were published. By 
 giving out the opinions, the court invited criticism, and 
 should have expected that would happen which did happen 
 — that they would be freely discussed in the public journals. 
 It was not only the right of these journals to criticise at 
 this most opportune time, but it was the right of the public 
 to read and hear concerning them. Moreover, under our 
 practice, nothing that has been presented will be considered 
 by the court on petition for rehearing ; so that, unless it is 
 designed to stifle and prevent criticism at the time when it 
 is intended the public should hear what judgments its judges 
 are rendering, the rule announced by the court is unjust. 
 But, whether it was so designed or not, its effect is the 
 same; for it is left to the judges to determine when they 
 will pass upon a petition for rehearing, and it may be a 
 year or more after the judgment is rendered before the 
 petition for rehearing is granted or denied. In a case filed 
 by one Moyer in which the decision was rendered in the 
 spring of 1 904, leave to withdraw the petition for rehearing 
 was not granted until the summer of i^O^, although leave 
 was asked in the summer of 1904. This was a case in 
 which the people were vitally interested and the public had 
 a right to hear the questions involved discussed, yet the 
 court withheld its permission to withdraw the petition for 
 nearly a year.
 
 l88 ROBERT WILBUR STEELE 
 
 The judgment clothes every judge in the state with a 
 power he should not possess ; that it was never intended by 
 our people that he should possess ; and to possess which is 
 altogether at variance with our free institutions. The judges 
 should court criticism, not stifle it. The surest way to lose 
 the confidence of the people is to render a judgment the 
 effect of which is to suppress the truth, particularly if it 
 affects the judge personally. The people want to respect 
 the judges, and probably do respect them more than they 
 do the officers of any other department; but they cannot be 
 driven to respect them by oppressive and tyrannical judg- 
 ments. They may, for the time, sullenly obey judgments 
 such as this, but they have a right that is quite as sacred as 
 the individual right of the printer or speaker, and that is 
 the right to hear and know about all their servants, and it 
 will require more than one judgment to effectually deprive 
 them of the right to hear and know about their judges. 
 
 The so-called "auditorium case" was pending, and if 
 the judgment had been based upon the article in which that 
 case is mentioned I should have undertaken to show that 
 under the decisions no contempt was in fact committed. 
 But the court has punished the respondent, not because he 
 has undertaken to unduly influence a decision and to pre- 
 vent the litigants from having a fair trial, but because he 
 has impugned the judges' motives and because when he 
 filed his answer he reasserted his charges. 
 
 The court cites one case in support of the proposition 
 that the causes were pending for the purposes of contempt.. 
 The general doctrine is that after the judgment is rendered 
 the people are at liberty to discuss it; and this is particu- 
 larly true where, as under our statute, the court is required, 
 when it announces its judgments, to file an opinion stating 
 its reasons therefor. In the two cases from Colorado the 
 causes were both pending. The writer of the article not
 
 THE OPINION IN THE PATTERSON CASE 189 
 
 only libeled the judges, but he stated facts concerning the 
 parties which had a tendency to influence the community 
 and the judges with respect to their causes. In the Ohio 
 case which we have cited, People vs. Myers, it was expressly 
 held that the defendant was not punished for libel upon the 
 judge, but because he had undertaken to publish matters in 
 the presence of the court and the jurors which might have a 
 tendency to affect the decision in the case. In the Massa- 
 chusetts case, it will be observed that the newspaper articles 
 published contained facts which, the court remarks, would 
 not be admissible in evidence, and therefore the publisher, 
 inasmuch as such facts were brought to the attention of the 
 court and jury, was held for contempt. In a South Dakota 
 case, on the day after the trial of a criminal case, the pub- 
 lisher condemned the court and its judgment, but the 
 Supreme Court of South Dakota said : 
 
 "The object of contempt proceedings is not to enable the judge, 
 who deems himself aggrieved, to punish the supposed wrongdoer to 
 gratify his own personal feelings, but to vindicate the dignity and 
 independence of the court, and to protect himself and those neces- 
 sarily connected with it while a matter is pending before it from 
 insolent and contemptuous abuse calculated to intimidate, influence, 
 embarrass, or prevent a fair and impartial trial. If the judge was 
 unjustly assailed by the article in question he had the same, and 
 only the same, remedies for the redress of the wrong which belong 
 to all other citizens. After the conclusion of a trial the right of the 
 press, without fear of punishment by contempt proceedings, in the 
 interest of the public good, to challenge the conduct of the judge, 
 parties, jurors or witnesses and to arraign them at the bar of public 
 opinion in connection with causes that have been fully determined, 
 cannot be denied by a court in any other manner than by the ordi- 
 nary proceedings in courts of justice. It would be a perversion of 
 the salutary doctrines governing the proceedings of courts and their 
 power to punish for contempts to permit a judge to summon before 
 him and punish by fine and imprisonment one who challenges his 
 learning, integrity or impartiality as a judge in a public newspaper, 
 except when the interests of the state demand it, to vindicate the 
 independence and integrity of the courts and to protect them from 
 publications directly calculated to embarrass, impede, intimidate or 
 influence them in the due administration of justice in proceedings 
 pending before them."
 
 190 ROBERT WILBUR STEELE 
 
 The New Hampshire case mentioned in the opinion as 
 sustaining the decision of the court was a case in which a 
 publisher, while jurors were in attendance upon the court, 
 ready to be summoned to try the cause, published articles 
 reflecting upon one of the parties to the suit and commenting 
 in severe terms upon the prosecution ; and the court held 
 that, as the articles had a direct bearing upon the cause that 
 was then pending, and rjnight influence the jurors in the 
 determination of that cause, it was a contempt of court. 
 
 In the case State vs. Dunham, reported in 6th Iowa, 
 245, the court says, speaking of newspaper articles the pub- 
 lication of which have been held to be contempt of an 
 inferior court : 
 
 "Nor are we to be understood as sanctioning the propriety of 
 the course pursued by respondent in his comments and references 
 to the proceedings of the court. If his attack was libelous, then it 
 seems to us that he and the judge assailed should be placed on the 
 same grounds, and 'their common arbiter should be a jury of the 
 country.' No court can or should hope that its opinions and 
 actions can escape discussion or criticism. When a case is disposed 
 of, and the decision announced, such decision becomes public prop- 
 erty, so to speak. The construction given to a statute — the reasoning 
 and conclusion of the court upon the facts — all go to the public, and 
 become subject to public scrutiny and investigation. In such cases, 
 it is perfectly competent and lawful for anyone to comment upon 
 the decision, and expose its errors and inconsistencies. If such 
 comments do not correct errors, they will, at least, lead to renewed 
 caution and circumspection upon the part of those whose duty it is 
 to declare the law. It would be a fruitless undertaking in this 
 country — where the freedom of speech and the press is so fully 
 recognized, and so highly prized — to attempt to prevent judicial 
 opinions from being as open to comment and discussion as an opin- 
 ion or treatise upon any other subject. It is well, and fortunate 
 that it is so. This right is fully recognized in England, and it 
 would be strange if, under our institutions, we should be less toler- 
 ant. To investigate and discuss the opinion of the court, and to 
 disobey its mandates or orders, are quite different things. All men 
 may rightfully make their comments, but none should disobey, 
 except upon pain of suffering the penalty attached for violation. 
 And should those thus commenting leave the subject, and impute 
 dishonesty or base motives to the judge, he may be punished by 
 indictment for a libel, he may be answerable in damages in a civil 
 action, or he may be liable to both prosecutions."
 
 THE OPINION IN THE PATTERSON CASE I9I 
 
 But in none of the cases I have cited is language more 
 applicable than that of Mr. Justice Helm in the case of 
 People vs. Green, 7 Colo., 244, where he says : 
 
 "But respondent undertakes to shield himself under the plea of 
 freedom of speech, and a right to criticise. In this country, and in 
 England also, the utmost liberty of speech is guaranteed by statute 
 and enforced by the courts; the right to discuss all matters of 
 public interest or importance is everywhere fully recognized; judi- 
 cial decisions and conduct constitute no exception to the rule; the 
 judge's official character and his acts in cases fully determined 
 are subject to examination and criticism; in most states the office is 
 elective, and it is proper and right that the people should be 
 informed of the occupant's mental and moral fitness. True, under 
 the guise of criticism in the public press and otherwise, judges are 
 often compelled to endure the sting of misrepresentation and 
 calumny with no other redress than an ordinary civil action; and 
 doubtless it sometimes happens that their efficiency in office is 
 thereby lessened, to the detriment and injury of the public service; 
 but it is widely considered better that these wrongs and injuries 
 should be tolerated than that the sacred liberty of speech, printed 
 or spoken, should be abridged by lodging an arbitrary power to 
 interfere therewith in the hands of the court or judge, so long as 
 such criticism is not designed to influence the mind of the judge in 
 a cause still undetermined." 
 
 It is, as Wharton says, "a confession of weakness" for 
 a judge to confess in so conspicuous a way as punishment 
 for contempt that criticism of his opinions handed down 
 may influence a decision on a petition for rehearing if one 
 is filed. And it is "at least as injurious to public justice as 
 is the publication in which the objectionable matter is con- 
 tained." 
 
 But the court makes the plea that it is one of the essen- 
 tial powers of the court — essential to its very existence and 
 absolutely necessary to maintain dignity and command 
 respect. I concede that power to punish for contempt is 
 essential to a proper enforcement of the decrees of a court, 
 for this is recognized by the legislature ; but I deny that it 
 is essential and necessary, to maintain dignity and com- 
 mand the respect of the people, that the power should 
 extend to contempts of this character. Instead of com-
 
 192 ROBERT WILBUR STEELE 
 
 manding respect, it has the opposite effect. The respect 
 must be earned by honest judgments and upright conduct 
 of the judges; and when this arbitrary power is used the 
 people regard it as an element of weakness rather than as 
 an evidence of integrity. The people themselves will rally 
 to the support of the court. The newspapers will be first 
 of all to resist an unwarranted attack upon the court. Pub- 
 lic opinion will discountenance unjust assaults, and when 
 the court is unreasonably assailed the persons who thus 
 assail it will in the end suffer. For a court having the 
 confidence and esteem of the public cannot be harmed by 
 unjust criticism. 
 
 Lord Erskine, in speaking upon the subject of free 
 speech and fundamental rights, said : "Engage the people 
 by their affections, convince their reason — and they will be 
 loyal from the only principle that can make loyalty sincere, 
 vigorous or rational — a conviction that it is their truest 
 interest, and that their government is for their good. Con- 
 straint is the natural parent of resistance, and a pregnant 
 proof that reason is not on the side of those that use it. 
 You must all remember Lucian's pleasant story : Jupiter 
 and a countryman were walking together, conversing with 
 great freedom and familiarity upon the subject of heaven 
 and earth. The countryman listened with attention and 
 acquiescence while Jupiter strove only to convince him ; but, 
 happening to hint a doubt, Jupiter turned hastily around 
 and threatened him with his thunder. 'Ah, ha !' says the 
 countryman ; 'now, Jupiter, I know that you are wrong ; 
 you are always wrong when you appeal to your thunder.' " 
 
 So I say. Whenever we exert this arbitrary and des- 
 potic power, as pelting and petty officers always do — this 
 power not given by the constitution or by legislative enact- 
 ment, but taken and exercised because of its alleged neces- 
 sity — we convince no one; and that unless our judgments
 
 THE OPINION IN THE PATTERSON CASE I93 
 
 are wise and just, and our members are themselves honest 
 and incorruptible, we shall receive the just censure of the 
 public, through the exercise of the right of free speech and 
 through the medium of the printing press, notwithstanding 
 our thunder. 
 
 For nearly thirty years the judges of the federal court 
 have held sessions here and have determined great and 
 momentous cases of public import. Yet, in the face of the 
 fact that they have not the power to punish as for contempts 
 the publishers of articles or for spoken words defaming the 
 judges, no one that I now recall has ever attacked the 
 integrity of the judges or impugned their motives. During 
 this time one of the judges has resided here in Denver, and, 
 notwithstanding the fact that he is forbidden by statute to 
 entertain proceedings of this nature, he holds the respect 
 and confidence of the people and the motives of his judg- 
 ments are not questioned. 
 
 In a recent work on constructive contempt by John L. 
 Thomas, former judge of the Supreme Court of Missouri, 
 this subject is so convincingly presented that I shall quote 
 what he says upon the "Law of Necessity" at length. This 
 eminent jurist says : 
 
 "The courts base their power to punish for contempt chiefly 
 upon the law of necessity, which is the law of self-defense. To 
 some extent that may be true. That the courts should have power, 
 by summary process, at the time to keep the peace within their own 
 precincts; to protect themselves and the parties concerned in the 
 business before them from insult and interference, and enforce their 
 orders and judgments, is too axiomatic to admit of proof by argu- 
 ment; but acts or words, done or said or published away from the 
 courts, and not in their presence, stand upon different grounds 
 entirely, because the law of necessity does not apply in these, there 
 being other more appropriate remedies for any wrong growing out 
 of them. 
 
 "It is submitted that the law of necessity cannot be invoked in 
 support of the power of the court to try and punish for contempt 
 anyone for the publication of a libel upon them or for other acts 
 not done in their presence. An abstract theory, though in appear- 
 ance it may be most plausible and beautiful, is sometimes flatly
 
 194 ROBERT WILBUR STEELE 
 
 contradicted by experience and the facts of history, and that is the 
 case with the theory upon which this power is made to rest by its 
 advocates. It is asserted that this power is an essential attribute 
 of constitutional courts only — that a statutory court may be deprived 
 of this essential attribute and yet continue to exist as a court. This 
 is the rule generally applied by the courts. This was done by the 
 Supreme Court of the United States in ex parte Robinson, 19 Wall., 
 505; in the Frew case, 24 W. Va., 416; in the Shepherd case and 
 many others. So that it seems that the law of necessity is the sup- 
 port of some courts and some courts have to stand without that law. 
 The reason for such a distinction is not apparent to the writer. To 
 my mind that so-called law of necessity is no law at all, for if it 
 were no court could exist without it. 
 
 "But this is not all. This theory of the law of necessit}', as 
 applicable to the punishment for contempt for newspaper publica- 
 tions, is flatly contradicted by the facts of history. The Supreme 
 Court of the United States has never exercised, or attempted to 
 exercise, such a power, though it has at times, for one hundred 
 years or more, been vilified, abused and libeled in an outrageous 
 manner. It has been libelously criticised by the public press for its 
 decisions in the national bank cases, the Dartmouth College case, 
 the Dred Scott case, the reconstruction cases, the legal tender cases, 
 and we all remember the vituperative and libelous attacks made by 
 the press and many public speakers upon that high tribunal for its 
 decision in the income tax and insular cases; and yet the court 
 remained silent and passive; but it still exists in all its vigor. That 
 court, in 1873, in ex parte Robinson, decided that under the act of 
 congress of March 2, 1831, the courts inferior to the Supreme Court 
 of the United States have no jurisdiction in a contempt proceeding 
 for acts not committed in their presence; and yet there are no courts 
 of the states of this Union that stand higher or are more respected 
 than the United States Court of Appeals, the United States Circuit 
 Courts and the United States District Courts. The members of the 
 Supreme Court often sit in some of these and aid in the administra- 
 tion of the law in the trial of causes. These courts are absolutely, 
 so far as their power to punish as for a contempt a newspaper pub- 
 lication, at the mercy of the slanderers and libelers of this country, 
 which our Supreme Court stands so much in dread of. And yet 
 those courts continue to exist as courts. And our state Supreme 
 Court, the Court of Appeals and the Circuit Courts never exercised 
 this extraordinary prerogative prior to 1903, and yet they continued 
 to exist. The same may be said of ninety-nine per cent of all the 
 courts in our country. Lords Erskine and Campbell did not think 
 the power essential to a court. 
 
 "Speaking upon this very point, the Supreme Court of Illinois, 
 in the Storey case, supra, quoting from a former decision of the 
 same court, said: 
 
 " 'It does not seem necessary for the protection of courts 
 in the exercise of their judicial power, that this one (con- 
 tempt for libelous publication), so liable to abuse, should
 
 THE OPINION IN THE PATTERSON CASE I95 
 
 be conceded to them. It may be so frequently exercised as 
 to destroy that moral influence, which is their best posses- 
 sion, until finally the administration of justice is brought 
 into disrepute. Respect for courts cannot be compelled. 
 It is the voluntary tribute of the public to worth, virtue 
 and intelligence, and while they are found upon the judg- 
 ment seat, so long, and no longer, will they retain the 
 public confidence. If a judge be libeled by the public 
 press, he and his assailant should be placed on equal 
 grounds, and their common arbiter should be a jury of the 
 county.' 
 
 "The Supreme Court of Wisconsin, speaking on the same sub- 
 ject, in State ex rel. vs. Court, 44 L. R. A., 554, said: 
 
 " 'Is it necessary that a court should possess this power? 
 We feel bound to hold that, considering the rights of the 
 citizen just referred to, no such power as this is necessary 
 for the due administration of justice. It may be fully 
 admitted that under the common law as administered in 
 England the mere writing contemptuously of a superior 
 court of justice has been declared a constructive contempt. 
 (4 Bl. Com., 285.) We, however, adopted no part of the 
 common law which was inconsistent with our constitution 
 (Cons. Wis. Schedule, sec. 131), and it seems clear to us 
 that so extreme a power is inconsistent with and would 
 materially impair the constitutional right of free speech 
 and free print.' 
 
 "To the same effect is the opinion of the court in Mississippi, 
 in ex parte Hickey, 4 Smedes & M., 751, and it has been the firm 
 conviction of the people of this coimtrj' for over a hundred years 
 that this power is not necessary, but that it is a power so arbitrary 
 and so liable to abuse that it ought not to be intrusted to the court, 
 but that cases involving the abuse of freedom of speech and the 
 press ought to be tried by an impartial jury before courts that have 
 and can have no personal interest in the result. Hence this power 
 in this respect, not being based on the law of necessity, can be taken 
 away from or not conferred on the courts at the will of the legis- 
 lature. Whether the power to protect themselves from insult and 
 keep the peace in their ov^n precincts and enforce their own judg- 
 ments can be taken away from the courts or given to some other 
 judicial tribunal has not arisen in this countrv' yet, for no legisla- 
 ture has ever, up to this time, attempted to go that far, and until 
 such an attempt is made so improbable a contingency need not enter 
 into the discussion. 
 
 "Our contempt statute not only recognizes, but, in terms, con- 
 fers the power on the courts to punish for contempts committed in 
 their presence, and for refusing to obey the process or orders of the 
 court, and beyond these the law of necessity, if it exists at all, does 
 not extend."
 
 196 ROBERT WILBUR STEELE 
 
 This plea of necessity has always been urged as the 
 reason for the exercise of arbitrary power not sanctioned by 
 law. All tyrants take refuge behind it. It is the reason 
 urged for misgovernment everywhere. The constitution is 
 ignored and the statutes disregarded mainly upon the plea 
 of necessity. The power of judging of the necessity is, by 
 this same doctrine of necessity, as a matter of course lodged 
 in the person making the plea. 
 
 Judge Thomas further says, page 41 : 
 
 "Those who opposed proceedings, based on attachment for con- 
 tempt of court for newspaper publications, did not deny that courts 
 ought to be protected against unjust and malicious criticism, but 
 they did deny the propriety, if not the right of the judge to try any 
 issue in which his personality must of necessity more or less enter, 
 and which, they felt, can but influence his decision. This objection, 
 however, applies only where the contempt proceeding is for criti- 
 cism of the judge by print, writing or picture, and does not apply 
 to the enforcement of the orders of the court, for in this the person- 
 ality of the judge does not enter in the slightest degree, and hence 
 personal bias in such cases can have no appreciable influence over 
 the decision of a just judge. Lord Erskine, at the close of his great 
 career, gave it as his opinion that there ought to be a jury trial 
 when a person is charged with libeling a court or judge; and Lord 
 Campbell, one of the chief justices of England, in a note to the 
 case of Rex. vs. Almond, Wilm. Op., 243, third volume of his Lives 
 of the Lord Chief Justices, 190, says: 'In consequence of the resig- 
 nation of Sir Fletcher Norton, who as attorney general had made 
 the motion, it (the Almond case for contempt) was dropped after 
 cause shown while the court was considering its judgment; and 
 although there can be no doubt as to the power to proceed by attach- 
 ment in such a case — if a prosecution for libel on judges be neces- 
 sary — the preferable course is to proceed by information or indict- 
 ment, so as to avoid placing them in the invidious situation of 
 deciding where they may be supposed to be parties.' " 
 
 The court says that the case of Hughes vs. The People 
 is authority for holding, as it does, "that the truth of the 
 matter charged as contemptuous is not justification to the 
 charge of contempt." The court further says that the court 
 very briefly disposed of the offer of Hughes to prove the 
 truth of his charges, and quotes the following language 
 used by the court :
 
 THE OPINION IN THE PATTERSON CASE I97 
 
 "It is further assigned for error that the court rejected testi- 
 mony offered to prove the truth of the matter charged in the writ- 
 ings. After what we have already said it is scarcely necessary to 
 add that this assignment is untenable." 
 
 I cannot place such construction on this portion of 
 Justice Stone's opinion. He had already said : 
 
 "A contempt consists as well in the manner of the person 
 committing it as in the subject matter of its foundation; matters 
 which, if true, would in their very nature be scandalous, may be 
 presented, hinted at or brought to the attention of the court in so 
 respectful a manner that no judge would ever think to construe a 
 contempt therefrom; while, on the other hand, it is easy to see, 
 when under the guise and pretense of setting out privileged and 
 necessary matters, circumstances are detailed and scandalous and 
 insulting charges and innuendoes are made and insinuated upon 
 pretended 'information and belief in a manner that bears the 
 unmistakable earmarks of malice and deliberate contempt. 
 
 "These remarks, we think, will indicate sufficiently clear the 
 path which each attorney is expected to advise and follow in choos- 
 ing the language he employs in papers filed in court, as well as in 
 speech addressed directly to the judge." 
 
 This explains the words quoted as declaring that the 
 proof of the truth of the matter charged in an alleged con- 
 temptuous paper filed in the court is not a justification. 
 Taken all together it is not authority for the opinion in this 
 case, but is simply a holding that the attorney who presents 
 a paper to a court must use language, if possible, that is 
 not scandalous; and that he should, rather than relate a 
 plain, unvarnished tale, hint at such matters and gloss them 
 in such a way that a discriminating judge will not deem 
 the language contemptuous. But it is not possible to 
 use this case as authority for holding that under no circum- 
 stances is the truth a justification; for, suppose that an 
 attorney has merely hinted at a scandalous matter, and the 
 judge has cited him for contempt, and as a justification the 
 attorney offers to prove the truth. There is positively noth- 
 ing in the opinion which would justify the court in denying 
 the attorney the right to prove such matters in justification.
 
 igS ROBERT WILBUR STEELE 
 
 In the case Mullin vs. People, 15 Colorado, 437, 
 MuUin had prepared a petition for a change of venue, 
 wherein he set forth, among other things, that the wife of 
 the judge had, just before the trial of a certain cause, told 
 him that she must return home at once and see the judge 
 and arrange with him to have Mrs. Davis win her case; 
 that Mrs. Davis did win the case ; and that, as he was inter- 
 ested in the same litigation, although in another suit, he 
 feared that the judge would be prejudiced against him and 
 he asked to have the venue of the cause changed. After 
 stating that the statute requires the petitioner, in cases where 
 the change of venue is asked on account of the prejudice of 
 the judge, to set forth the facts upon which he bases his 
 fears that he will not receive a fair trial, Mr. Justice Hayt, 
 who delivered the opinion of the court, said : 
 
 "Assuming, then, for the purposes of this case, that the wife of 
 the presiding judge made the statement attributed to her, plaintiff 
 in error had the undoubted right to embody such statement in his 
 petition for a change of venue without subjecting himself to being 
 punished for contempt. The principal ground relied upon to sus- 
 tain the action of the court below therefore fails. Had it been 
 charged that the affidavit was false in this respect, and that such 
 false statements were made willfully and maliciously, as argued, a 
 different case would have been presented." 
 
 This case seems to hold that in a petition for change 
 of venue the party seeking the change may set out the rea- 
 sons upon which he bases his fears that he will not receive 
 a fair trial, and that, if the statements therein contained are 
 true, he is not subject to punishment for contempt. 
 
 John Peter Zenger was tried for a defamatory publica- 
 tion of certain public officials in New York in 1735. 
 Andrew Hamilton defended him. Speaking of the effect of 
 censuring those in power, Hamilton said : 
 
 "It is said that it brings the rulers of the people into contempt 
 so that their authority is not regarded, and so that in the end the 
 laws cannot be put into execution. These, I say, and such as these, 
 are the general topics insisted upon by men in power and by their
 
 THE OPINION IN THE PATTERSON CASE I99 
 
 advocates. But I wish it might be considered at the same time how 
 it often has happened that the abuse of power has been the primary 
 cause of these evils, and that it was the injustice and oppression of 
 these great men which has commonly brought them into contempt 
 with the people. The craft and art of such men are great, and 
 who that is the least acquainted with history or with law can be 
 ignorant of the specious pretenses which have often been made use 
 of by men in power to introduce arbitrary power and destroy the 
 liberties of a free people? * * * 
 
 "But, to conclude, the question before the court and you, gentle- 
 men of the jury, is not of small nor private concern; it is not the 
 cause of a poor printer nor of New York alone which you are now 
 trying. No! It may, in its consequences, affect every free man 
 that lives under a British government on the main continent of 
 America. It is the best cause; it is the cause of liberty; and I make 
 no doubt but your upright conduct this day will not only entitle 
 you to the love and esteem of your fellow citizens, but every man 
 who prefers freedom to a life of slavery will bless and honor you 
 as men who have baffled the attempt of tyranny, and, by an impar- 
 tial and uncorrupt verdict, have laid a noble foundation for secur- 
 ing to ourselves, our posterity and our neighbors that to which 
 nature and the laws of our country have given us a right — the 
 liberty of exposing and opposing arbitrary power (in these parts 
 of the world, at least) by speaking and writing truth." 
 
 Through the efforts of Hamilton, Zenger was acquitted 
 in spite of the judge's efforts ; and this at a time when the 
 truth was not a defense to such an action. Gouverneur 
 Morris is said to have stated that, instead of dating Ameri- 
 can liberty from the Stamp act, he traced it to the persecu- 
 tion of Zenger; because that event revealed the philosophy 
 of freedom, both of thought and speech as an inborn human 
 right, so nobly set forth in Milton's speech for the liberty 
 of unlicensed printing. 
 
 Harry Croswell, the publisher of a newspaper at Hud- 
 son, N. Y., was convicted for libeling Thomas Jefferson, 
 the then president of the United States. The case was taken 
 to the Supreme Court. It has attracted great attention, not 
 only because of the importance of the questions raised, but 
 because of the eminence of court and counsel. The 
 lower court had refused to instruct the jury that it was the 
 judge of the law and fact, and that the truth was a justi-
 
 200 ROBERT WILBUR STEELE 
 
 iication. The case is reported in 3 Johnson's Cases, page 
 
 323. In opening the case, counsel for Croswell said : 
 
 "The opposite doctrine, which maintains that a writing is 
 equally libelous, whether true or false, originated in a polluted 
 source, the despotic tribunal of the star chamber. (Moore, 627, 5 
 Co., 125.) * * * The star chamber had no authority to alter 
 the common law. Our ancestors, when they emigrated to this coun- 
 try, brought with them the common law as their inheritance and 
 birthright, and one of the earliest acts of our colonial legislature 
 was to assert their claim to the enjoyment of the common law. 
 * * * The doctrine which will be contended for on the other 
 side, that the truth cannot be given in evidence, and is in no case to 
 justify libel, although it should be promulgated with the purest 
 motives, is repugnant to the first principles of policy and justice 
 and contrary to the genius of a free representative public. Freedom 
 of discussion and a freedom of the press, under the guidance and 
 sanction of truth, are essential to the liberties of our country, and 
 to enable the people to select their rulers with discretion and to 
 judge correctly of their merits." 
 
 General Alexander Hamilton appeared for Croswell. 
 He said, in the closing argument : 
 
 "The liberty of the press consists, in my idea, in publishing the 
 truth, from good motives and for justifiable ends, though it reflect 
 on government, magistrates or individuals. If it be not allowed it 
 excludes the privilege of canvassing men and our rulers. It is in 
 vain to say you may canvass measures. This is impossible without 
 the right of looking to men. To say that measures can be discussed, 
 and that there shall be no bearing on those who are the authors of 
 those measures, cannot be done. The very end and reason of dis- 
 cussion would be destroyed. Of what consequence to show its 
 object? Why is it thus to be demonstrated, if not to show, too, who 
 is the author? It is essential to sa}', not only that the measure is 
 bad and deleterious, but to hold up to the people who is the author, 
 that, in this our free and elective government, he may be removed 
 from the seat of power. If this be not done, then in vain will the 
 voice of the people be raised against the inroads of tyranny. * * * 
 But if, under the qualifications I have mentioned, the power be 
 allowed, the liberty for which I contend will operate as a salutary 
 check. In speaking thus for the freedom of the press, I do not say 
 there ought to be an unbridled license, or that the characters of 
 men who are good will naturally tend eternally to support them- 
 selves. I do not stand here to say that no shackles are to be laid 
 on this license. 
 
 "I consider this spirit of abuse and calumny as the pest of 
 society. I know the best of men are not exempt from the attacks of 
 slander. Though it pleased God to bless us with the first of char- 
 acters, and though it has pleased God to take him from us and this 
 band of calumniators, I say that falsehood eternally repeated would
 
 THE OPINION IN THE PATTERSON CASE 201 
 
 have affected even his name. Drops of water, in long and contin- 
 ued succession, will wear out adamant. This, therefore, cannot be 
 endured. It would be to put the best and the worst on the same 
 level. 
 
 "I contend for the liberty of publishing truth, with good motives 
 and for justifiable ends, even though it reflect on government, mag- 
 istrates or private persons. I contend for it under the restraint of 
 our tribunals. When this is exceeded let them interpose and pun- 
 ish. From this will follow none of those consequences so ably 
 depicted. When, however, we do look at consequences, let me ask 
 whether it is right that a permanent body of men, appointed bj' the 
 executive and in some degree always connected with it, should 
 exclusively have the power of deciding on what shall constitute a 
 libel on our rulers, or that they shall share it united with a change- 
 able body of men chosen by the people? Let our juries be selected, 
 as they now are, by lot. But it cannot be denied that every body of 
 men is, more or less, liable to be influenced bj- the spirit of the 
 existing administration; that such a body may be liable to corrup- 
 tion and that they may be Inclined to lean over towards party 
 modes. No man can think more highly of our judges, and I may 
 say personally so of those who now preside, than myself; but I 
 must forget what human nature is and how her history has taught 
 us that permanent bodies may be so corrupted, before I can venture 
 to assert that it cannot be. As then it may be, I do not think it safe 
 thus to compromise our independence. For though, as individuals, 
 the judges may be interested in the general welfare, yet if once 
 they enter into these views of government their power may be 
 converted into an engine of oppression. It is in vain to say that 
 allowing them this exclusive right to declare the law on what the 
 jury has found can work no ill; for, by this privilege, they can 
 assume and modify the fact so as to make the most innocent publi- 
 cation libelous. It is, therefore, not a security to say that this 
 exclusive power will but follow the law. * * * Passages have 
 been adduced from Lord Mansfield's declarations to show that 
 judges cannot be under the influence of an administration. Yet 
 still it would be contrary to our own experience to say that they 
 could not. I do not think that even as to our own country it may not 
 be. There are always motives and reasons that may be held up. 
 It is therefore still more necessary here to mingle this power than 
 in England. The person who appoints there is hereditary. That 
 person cannot alone attack the judiciary; he must be united with 
 the two houses of lords and of commons in assailing the judges. 
 But with us it is the vibration of party. As one side or the other 
 prevails, so of that class and temperament will be the judges of 
 their nomination. Ask an}- man, however ignorant of principles of 
 government, who constitute the judiciarj-; he will tell you the 
 favorites of those at the head of affairs. According, then, to the 
 theory of this, our free government, the independence of our judges 
 is not so well secured as in England. We have here reasons for 
 apprehension not applicable to them. We are not, however, to be 
 influenced by the preference to one side or the other. But of which
 
 202 ROBERT WILBUR STEELE 
 
 side soever a man may be, it interests all to have the question 
 settled and to uphold the power of the jury, consistently, however, 
 with liberty, and also with legal and judicial principles, fairly and 
 rightly understood. None of these impair that for which we con- 
 tend — the right of publishing the truth, from good motives and 
 justifiable ends, though it reflect on government, on magistrates, or 
 individuals. 
 
 "Some observations have, however, been made in opposition to 
 these principles. It is said that, as no man rises at once high into 
 office, every opportunity of canvassing his qualifications is afforded, 
 without recourse to the press ; that his first election ought to stamp 
 the seal of merit on his name. This, however, is to forget how 
 often the hypocrite goes from stage to stage of public fame, under 
 false array, and how often, when men obtain the last object of their 
 wishes, they change from that which they seemed to be ; that men, 
 the most zealous reverers of the people's rights, have, when placed 
 on the highest seat of power, become their most deadly oppressors. 
 It becomes, therefore, necessary to observe the actual conduct of 
 those who are thus raised up. 
 
 ******* 
 
 "I affirm that, in the general course of things, the disclosure of 
 truth is right and prudent when liable to the checks I have been 
 willing it should receive as an object of animadversion. It cannot 
 be dangerous to government, though it may work partial difficulties. 
 If it be not allowed they will stand liable to encroachments on their 
 rights. It is evident that if you cannot apply this mitigated doc- 
 trine, for which I speak, to the cases of libels here, you must forever 
 remain ignorant of what your rulers do. I never can think this 
 ought to be; I never did think the truth was a crime; I am glad the 
 day has come in which it is to be decided, for my soul has ever 
 abhorred the thought that a free man dared not speak the truth; 
 I have forever rejoiced when this question has been brought for- 
 ward. 
 
 ******* 
 
 "It is impossible to say that to judge of the quality and nature 
 of an act the truth is immaterial. It is inherent in the nature of 
 things that the assertion of truth cannot be a crime. In all systems 
 of law this is a general axiom, but this single instance, it is 
 attempted to assert, creates an exception, and is therefore an anom- 
 aly. If, however, we go on to examine what may be the case that 
 shall be so considered, we cannot find it to be this. 
 
 ******* 
 
 "It is true that the doctrine originated in one of the most 
 'oppressive institutions that ever existed; in a court whose oppres- 
 sions roused the people to demand its abolition, whose horrid judg- 
 ments cannot be read without freezing the blood in one's veins. 
 This is not used as declamation, but as argument. If doctrine tends 
 to trample on the liberty of the press, and if we see it coming from 
 a foul source, it is enough to warn us against polluting the stream 
 of our own jurisprudence. It is not true that it was abolished
 
 THE OPINION IN THE PATTERSON CASE 20,3 
 
 merely for not using the intervention of juries, or because it pro- 
 ceeded ex parte — though that, God knows, would have been reason 
 enough — or because its functions were discharged by the court of 
 king's bench. It was because its decisions were cruel and tyranni- 
 cal; because it bore down the liberties of the people, and inflicted 
 the most sanguinary punishments. It is impossible to read its sen- 
 tences without feeling indignation against it. This will prove why 
 there should not be a paramount tribunal to judge of these matters." 
 
 Mr. Justice Kent, in an opinion, sustained General 
 Hamilton and adopted his views. He said in part : 
 
 "Mr. Barrington (Observations on the Statutes, 68) has given 
 us a part of a curious letter, written at that time by the dean of 
 St. Paul's, from which we may infer his alarm and disgust at the 
 new libel doctrines of the star chamber. There be many cases,' 
 he observes, 'where a man may do his country good service by 
 libeling; for where a man is either too great or his vices too general 
 to be brought under a judiciary accusation, there is no way but 
 this extraordinary method of accusation.' * * * 
 
 "It appears clear, from this historical survey, that the doctrine 
 now under review originated in the court of star chamber, and was 
 introduced and settled there about the beginning of the reign of 
 James I. (Breverton's Case, 2 Jac, 1, and the case in 5 Co., 125, 3 
 Jac. 1, both settled the rule.) It was, no doubt, considered at that 
 time as an oppressive innovation, but opposition must have been 
 feeble to a court whose action and whose terrors were then at the 
 greatest height, and which exercised its superlative powers (as 
 Hudson terms them) with enormous severity. The principle was, 
 however, received in after times with jealousy and scrutiny, as 
 coming without the sanction of legitimate authority, and it was not 
 to be expected that a people attached to the mild genius of the 
 common law, of which trial by jury in criminal cases is one of its 
 most distinguished blessings, would willingly receive the law and 
 limits of the press from the decrees of so odious and tyrannical a 
 jurisdiction. * * * 
 
 "The first American congress, in 1774, in one of their public 
 addresses (Journals, vol. 1, p. 57), enumerated five invaluable 
 rights, without which a people cannot be free and happy, and under 
 the protecting and encouraging influence of which these colonies 
 had hitherto so amazingly flourished and increased. One of these 
 rights was the freedom of the press, and the importance of this 
 right consisted, as they observed, 'besides the advancement of truth, 
 science, morality and arts in general, in its diffusion of liberal senti- 
 ments on the administration of government, its ready communication 
 of thoughts between subjects, and its consequential promotion of 
 union among them, whereby oppressive officers are shamed or 
 intimidated into more honorable and just modes of conducting 
 affairs.' * * * 
 
 "I have thus shown that the rule denying permission to give 
 the truth in evidence was not an original rule of the common law.
 
 204 ROBERT WILBUR STEELE 
 
 The ancient statutes and precedents, which are the only memorials 
 to which we can resort, all place the crime on its falsity. The court 
 of star chamber originated the doctrine, and it was considered an 
 innovation. When it was brought into a court of common law it 
 was resisted and denied; the court dared not practice upon it, and 
 the jury gave it their negative. Lord Holt totally disregarded the 
 rule, in the case of Fuller; and it did not become an express deci- 
 sion of a court of common law till Franklin's case, in 1731; and 
 there the counsel made a zealous struggle against it, as new, dan- 
 gerous and arbitrary. In the trial of Home, Lord Mansfield laid 
 the rule aside, and the counsel for the crown rejoiced at an oppor- 
 tunity to meet the defendant upon the merits of the accusation. In 
 1792 it was made a questionable point in the house of lords, and one 
 of the highest law characters in the house seems to have borne his 
 testimony against it. I feel myself, therefore, at full libertj' to 
 examine this question upon principle, and to lay the doctrine aside, 
 if it shall appear unjust in itself, or incompatible with public liberty 
 and the rights of the press. * * * 
 
 "I adopt in this case, as perfectly correct, the comprehensive 
 and accurate definition of one of the counsel at the bar (General 
 Hamilton), that the liberty of the press consists in the right to 
 publish, with impunity, truth, with good motives and for justifiable 
 ends, whether it respects government, magistracy or individuals." 
 
 In the case of King vs. Root, 4 Wend., 1 14, the trial 
 court instructed the jury upon the liberty of the press, as 
 follows : 
 
 "A vigilant watch should be kept over the editors of our jour- 
 nals to prevent them becoming vehicles for the indulgence of 
 private resentment. Yet, however aggravated the practice of tra- 
 ducing character so openly and virulently through the press may 
 become, you must be cautious not to let your anxiety to check a 
 great evil lead you to do a great wrong to these defendants, * * * 
 and in seeking to restrain the licentiousness of the press, you will 
 be careful not to trammel fair discussion nor punish the truth, 
 however painful it may be to those of whom it is published." 
 
 The judgment was affirmed and this instruction was 
 approved. 
 
 Horace Greeley was defendant in a suit for defama- 
 tion. He pleaded that the articles published by him were 
 true. In passing upon a preliminary motion, the court said: 
 
 "The press is allowed to comment fully and freely upon public 
 characters, from the president down, and to utter those things with 
 the utmost freedom ; to charge official men with incompetency and 
 imbecility, with ignorance or corruption; to charge judges with 
 ignorance, incompetency or venality, and the proof of any of these
 
 Robert Wilbur Steele 
 (From photograph, 1900)
 
 THE OPINION IN THE PATTERSON CASE 205 
 
 allegations is a perfect defense. But the press has no right, under 
 its guaranteed freedom, to publish what is not true." (Littlejohn 
 vs. Greeley, 13 Abbott's Pr., 41.) 
 
 In the case of Negley vs. Farrow, 60 Md., 158, at page 
 176, the court, through Robinson, justice, says : 
 
 "No one denies the right of the defendants to discuss and criti- 
 cise boldly and fearlessly the official conduct of the plaintiff. It is 
 a right vyhich in every free country belongs to the citizen, and the 
 exercise of it, within lawful and proper limits, affords some protec- 
 tion at least against official abuse and corruption. But there is a 
 broad distinction between fair and legitimate discussion in regard 
 to the conduct of a public man and the imputation of corrupt 
 motives by which that conduct may be supposed to be governed. 
 And if one goes out of his way to asperse the personal character of 
 a public man and to ascribe to him base and corrupt motives, he 
 must do so at his peril, and must either prove the truth of what he 
 says, or answer in damages to the party injured." 
 
 In the case of State vs. Frew, 24 West Virginia, 416, 
 
 Mr. Justice Snyder, one of the justices of the court, said: 
 
 "Having thus shown that the court has the power to punish 
 for contempts, it must not be overlooked that this power can be 
 justified by necessity alone, and should rarely be exercised, and 
 never except when the necessity is plain and unmistakable. It is 
 not given for the private advantage of the judges who sit in the 
 court, but to preserve to them that respect and regard, of which 
 courts cannot be deprived and maintain their usefulness. It is 
 given that the law may be administered fairly and impartially, 
 uninterrupted by any influence which might affect the rights of the 
 parties or bias the minds of the judges, that the court may command 
 that respect and sanctity so essential to make the law itself 
 respected, and that the streams of justice may be kept pure and 
 uncorrupted. * * * The public have a profound interest in the 
 good name and fame of their courts of justice, and especially of the 
 courts of last resort. Everything that affects the well-being of 
 organized society, the rights of property, and the life and liberty 
 of the citizen, is submitted to their final decision. The confidence 
 of the public in the judiciary should not be wantonly impaired. It 
 is all-important to the due and efficient administration of justice 
 that the courts of last resort should possess in a full measure the 
 entire confidence of the people whose laws they administer. All 
 good citizens will admit that he who willfully and wantonly assails 
 the courts by groundless accusations, and thereby weakens the public 
 confidence in them, commits a great wrong, not alone against the 
 courts, but against the people of the state. It must be and is cheer- 
 fully conceded that public journals have the right to criticise freely 
 the acts of all public officers — executive, legislative and judicial.
 
 206 ROBERT WILBUR STEELE 
 
 It is a constitutional privilege that even the legislature cannot 
 abridge. But such criticism should always be just and with a view 
 to promote the public good. Where the conduct of a public officer 
 is willfully corrupt, no measure of condemnation can be too severe, 
 but when the misconduct, apparent or real, may be simply an honest 
 error of judgment the condemnation ought to be withheld or min- 
 gled with charity." 
 
 This is one of the cases cited by the court in support 
 of its position in this case. Yet by the use of the adverb 
 wantonly and of the adjective groundless it would seem 
 that, in the opinion of this justice, if the accusation were 
 not wantonly made and were not groundless, no contempt 
 would have been committed. He also appears to favor 
 severe condemnation of those public officers who are will- 
 fully corrupt. The justices were careful to state that they 
 had been falsely charged, and one of the judges insisted 
 that the attorneys should have been fined because they must 
 have known that the answer filed was false. 
 
 My brother Gunter relies upon the case in re Moore 
 et al., 63 North Carolina, 397, decided in the year 1869, as 
 supporting one of the positions taken by the court in this 
 case. In that case more than one hundred members of the 
 bar signed and published a protest, entitled "A Solemn 
 Protest of the Bar of North Carolina Against Judical Inter- 
 ference in Political Affairs." The protest declared, among 
 other things, that 
 
 "Active and open participation in the strife of political contests 
 by any judge of the state, so far as we recollect, or tradition or 
 history has informed us, was unknown to the people until the late 
 exhibitions. To say that these were wholly unexpected, and that a 
 prediction of them by the wisest among us would have been spurned 
 as incredible, would not express half our astonishment, or the pain- 
 ful shock suffered by our feelings when we saw the humiliating 
 fact accomplished. * * * Many of us have passed through 
 political times almost as excited as those of today; and most of us, 
 recently, through one more excited; but never before have we seen 
 the judges of the Supreme Court, singly or en masse, moved from 
 that becoming propriety so indispensable to secure the respect of 
 the people, and, throwing aside the ermine, rush into the mad con- 
 test of politics under the excitement of drums and flags. From the
 
 THE OPINION IN THE PATTERSON CASE 207 
 
 unerring lessons of the past we are assured that a judge who openly 
 and publicly displays his political party zeal renders himself unfit 
 to hold 'the balance of justice,' and that whenever an occasion may 
 offer to serve his fellow partisans he will jield to the temptation 
 and the 'wavering balance' will shake." 
 
 This article was held to be libelous because false, and 
 
 contemptuous because libelous. The court said : 
 
 "The only allegation of fact on which this 'solemn protest' 
 rests is that 'the judges, single and en masse, did rush into the mad 
 contest of politics under the excitement of drums and flags.' Is this 
 allegation of fact true or is it false? There is no pretense that it is 
 true. It is said this is a figure of speech, suggested by something 
 that was expected to occur but never did occur; so the allegation of 
 fact is false and the inference drawn from it is also false. In our 
 judgment the paper is libelous and 'doth tend to impair the respect 
 due to the authority of the court.' " 
 
 No case from America, since the constitutional provi- 
 sions concerning free speech and the printing press have 
 been in force, has been cited in which a judge has under- 
 taken to punish as for contempt statements such as these. 
 A redeeming feature of this case is that the respondents did 
 not retract or apologize, and were not punished ; and that 
 the court held that to publish such an article is not contempt 
 unless it is false. 
 
 In the Wyatt case the court held that the legislature 
 had not undertaken to control the procedure in criminal 
 contempt because the statute on the subject was contained 
 in the civil code. It recommended, however, a substantial 
 compliance with the code provisions in cases of criminal 
 contempt. 
 
 In the Stapleton case the court did not declare that the 
 
 legislature could not legislate upon the subject of contempt, 
 
 but expressly declares that, as it had not done so, the court 
 
 had the common law power of punishing for constructive 
 
 contempt. Mr. Justice Elliott said, quoting from the 
 
 Hughes case : 
 
 "Such a statutory enumeration of causes as is found in our 
 code, when applied to the ever varying facts and circumstances
 
 208 ROBERT AVILBUR STEELE 
 
 out of which questions of contempt arise, cannot be taken as the 
 arbitrary measure and limit of the inherent power of a court for 
 its own preservation, and for that proper dignity of authority which 
 is essential to the effective administration of law. 
 
 "The Hughes case was based upon the Code of 1877, which 
 was repealed in 1887. Chapter 30 of the present code is, however, 
 a substantial re-enactment of the former provisions relating to con- 
 tempt proceedings. These provisions were re-enacted more than 
 six years after the announcement of the decision in the Hughes case. 
 Thus by a well known rule of statutory construction it must be 
 presumed that the legislature had knowledge of and were satisfied 
 with the construction given to such provisions, and so re-enacted 
 them without change. (Harvey vs. Travelers' Insurance Company, 
 ante, 354.) Moreover, neither in the code of 1877 nor in the present 
 code are there anj^ negative or other qualifying words limiting con- 
 tempts to such causes as are therein specified." 
 
 This language cannot be misunderstood, and the court 
 has, in this case, in effect, overruled the Stapleton case, for 
 
 it says : 
 
 "We do not desire to intimate by the excerpt from People vs. 
 Stapleton that it would be competent for the legislature to limit the 
 power of courts, created by the constitution, in reference to either 
 civil or criminal contempt." 
 
 Instead of accepting the decisions of this court as a 
 warning that the court had already taken all the power 
 necessary for its existence, it goes beyond that and intimates, 
 if it does not hold, that the subject of contempt is one over 
 which the legislature has no control. Colorado has thus 
 joined the group of states consisting of Arkansas, West 
 Virginia, Virginia, Georgia and Missouri in declaring that 
 necessity — a necessity essential to the very existence of the 
 court — requires that the legislature should not legislate upon 
 the subject of contempt. How the federal courts and the 
 courts of the other thirty-nine states have managed to exist 
 for lo ! these many years without this essential power is not 
 explained in the opinion. 
 
 I shall not discuss the proposition that the common law 
 powers cannot be taken from the courts created by the con- 
 stitution by legislative enactment, further than to say that,
 
 THE OPINION IN THE PATTERSON CASE 2O9 
 
 as the constitution that created the court adopted the com- 
 mon law only until altered or repealed by the general 
 assembly, it would seem to follow that it is within the power 
 of the legislature to take away any power not expressly 
 granted by the constitution. 
 
 Although the court is sustained, in part, by the courts 
 of the states mentioned, this court stands alone in holding 
 that the truth is ivimatenal. In Georgia and Virginia the 
 contempt was of an entirely different character. In Arkan- 
 sas the court says that one is punishable for contempt who 
 wantonly attempts to obstruct public justice; and in West 
 Virginia the court speaks of groundless accusations made 
 against the court as being contemptuous, while in Missouri 
 the court squarely holds that the power to punish is limited 
 to those who tell an untruth. The doctrine that "the truth 
 is immaterial" comes, as Kent and Hamilton say, from a 
 polluted source, the obnoxious star chamber, and it was 
 undoubtedly the cowardly conception of corrupt officials as 
 a means of shielding themselves from exposure, and why 
 it should be revived in this day and generation is beyond 
 my understanding. 
 
 The court disposes of the contention of the respondent 
 that he should not be punished for publishing the truth by 
 saying : 
 
 "State vs. Shepherd, 147 Mo., 244, has been cited as contra our 
 conclusion. The question is not presented by the answer of the 
 respondent in that case, nor is its sufficiency as a defense considered 
 or passed upon by the court. No case has been found which sus- 
 tains, or tends to sustain, the contention of counsel." 
 
 It is true that the answer of the respondent did not 
 justify by alleging the truth of the charges, but I can place 
 no other construction upon the language of the court than 
 that, in the judgment of that court, proof of the truth of 
 the alleged contemptuous articles is a perfect defense.
 
 210 ROBERT WILBUR STEELE 
 
 As my brother Gunter and I have placed constructions 
 
 upon the Missouri case that are diametrically opposed to 
 
 each other, I shall quote from the opinion in that case the 
 
 language upon which I base my conclusion that the court 
 
 held that the truth of the charges made is a justification in 
 
 a proceeding for contempt. The publisher of a newspaper 
 
 had charged, in effect, that the judges of the Supreme Court 
 
 had been bribed by the Missouri Pacific Railroad Company 
 
 to render a certain judgment in its favor. The article 
 
 stated, among other things, that 
 
 "As the capsheaf of all this corruption in high places, the 
 Supreme Court has, at the whipcrack of the Missouri Pacific Rail- 
 road, sold its soul to the corporations." 
 
 Further, that 
 
 "The victory of the railroad has been complete, and the corrup- 
 tion of the Supreme Court has been thorough. It has reversed and 
 stultified itself in this case until no sane man can ever have any 
 other opinion but that the judges who concurred in the opinion 
 dismissing the Oglesby case have been bought in the interest of the 
 railroad." 
 
 The court then proceeds : 
 
 "If these charges are true, the persons who are thus charged 
 should be prosecuted and removed from office. On the other hand, 
 anyone who makes such charges should be prepared to make some 
 sort of a decent showing of their truth. Instead of standing ready 
 to prove the truth of the charges, the defendant, when called into 
 court, neither asserts the truth of the charges, nor does he accept 
 the challenge of the attorney general to introduce any evidence 
 whatever of their truth. * * * in other words, the defendant 
 has grossly, indecently and cruelly vilified and scandalized every 
 department of the government under which he lives, and which 
 affords him protection for his life, liberty and property, and, when 
 challenged to make his words good, he consummates his offending 
 by failing absolutely to produce one word of testimony to show that 
 he told the truth, and, instead of making the 'amende honorable' by 
 withdrawing the charges and apologizing like a man, he seeks to 
 escape punishment by challenging the jurisdiction of this court." 
 
 At another place in the opinion the court says : 
 
 "The offense of scandalum magnatum has not existed in this 
 country since the revolution, but anyone, of whatever rank or sta- 
 tion in life, stands upon the same footing before the law and is
 
 THE OPINION IN THE PATTERSON CASE 211 
 
 entitled to the same protection for his life, his liberty, his property 
 and his reputation. In the eyes of our constitution and laws, every 
 man is a sovereign and ruler, and a freeman, and has equal rights 
 with every other man. * * * Every man may lawfully do 
 what he will, so long as it is not mala in se or mala prohibita, or 
 does not infringe upon the equally sacred rights of others. Every 
 man may speak and write what he will, so long as he tells the 
 truth, but no man has any more right today to bear false witness 
 against his neighbor than he had in the days of Moses." 
 
 At another place the court says : 
 
 "But the press has no greater liberty in this regard than any 
 
 citizen. Newspapers and citizens have the same right to tell the 
 
 truth about anybody or any institution. Neither has the right to 
 scandalize anyone or any institution." 
 
 And again : 
 
 "Good people obey the laws, slander no one and speak the 
 truth. Others must do so or be punished. Upon no other basis could 
 good government rest or the rights of the people be protected. 
 * * * This is the true rule. The liberty of the press means 
 that anyone can publish anything he pleases, but he is liable for 
 the abuse of this liberty. If he does this by scandalizing the courts 
 of his country he is liable to be punished for contempt. If he slan- 
 der his fellow men he is liable to a criminal prosecution for libel, 
 and to respond civilly in damages for the injury he does to the 
 individual. In other words, the abuse of the privilege consists 
 principally in not telling the truth." 
 
 And, quoting from a New York case, it says : 
 
 "It has been urged upon you that the conductors of the public 
 press are entitled to peculiar indulgences and have special rights 
 and privileges. The law recognizes no such peculiar rights, privi- 
 leges or claim to indulgence. They have no rights but such as are 
 given to all. They have just the same right that the rest of the 
 community have, and no more. They have the right to publish the 
 truth, but no right to publish falsehood to the injury of others with 
 impunity. It is the liberty of the press that is guaranteed, not the 
 licentiousness. It is the right to speak the truth, not the right to 
 bear false witness against your neighbor." 
 
 And, quoting the following from an English case : 
 
 "Some people are very credulous, especially in politics, and 
 can readily believe any evil of their opponents. There must, there- 
 fore, be some foundation in fact for the charges made. * * * 
 The courts of other states have held that it is libelous to charge an 
 officer with having taken a bribe, or with corruption, or with want 
 of integrity. In such cases the publisher must stand ready to prove 
 the truth of his charges or he will not go unwhipped of justice."
 
 212 ROBERT WILBUR STEELE 
 
 Here the court cites a great number of cases in support 
 
 of its position. And, in speaking of the case the decision 
 
 of which called forth the newspaper comment, the court 
 
 said: 
 
 "No one believed or dared to charge another with dishonesty 
 of opinion or action, and there was no foundation in fact and in 
 truth for any such charges. There was, therefore, no legal justifica- 
 tion or excuse for the article that was published by the defendant. 
 He did not dare attempt to prove or claim that it was true, but 
 stood mute as to that, and sought to escape punishment on other 
 grounds which were untenable. He was therefore guilty of malice. 
 He abused the liberty of the press and made himself liable therefor." 
 
 And, finally, in closing, the court says : 
 
 "What is herein said in no manner whatever conflicts with 
 what was said in Marx & Haas Jeans Clothing Company vs. Wat- 
 son, 168 Mo., 133. That was a suit in equity to enjoin a boycott, and 
 it was held that injunction would not lie to restrain the utterance 
 of a libel or slander, or to restrain free speech. It was held there, 
 as it is here, that everyone may speak, write or publish whatever he 
 will, but is responsible for the abuse of the privilege. That case, 
 as well as this, holds that the courts cannot prevent a man telling 
 an untruth about another, but their power is limited to punishing 
 him if he does so." 
 
 I must confess my utter inability to understand ordi- 
 nary English words, if the court did not declare that the 
 defendant presented no legal justification or excuse for the 
 articles published, because he failed to establish the truth. 
 
 The court says : 
 
 "But no case has been presented which sustains, or tends to 
 sustain, respondent's contention that the truth is a justification." 
 
 I have presented several, and none have been cited to 
 the contrary. And it seems to me that it is contrary to the 
 American spirit to punish a man for telling the truth. That 
 no case is presented in which the answer of the respondent 
 alleges the truth as a justification, and the court has dis- 
 charged him because he proved the truth, I concede. In the 
 cases cited where charges were made against the appellate 
 tribunal, the court carefully calls attention to the fact that 
 the charges are false and makes explanation of its conduct.
 
 THE OPINION IN THE PATTERSON CASE 2I3 
 
 The law up to this tune has been such that no judge would, 
 probably, cite one for publishing truthful charges concern- 
 ing him, unless he was satisfied that the respondent could 
 not or would not undertake to prove his charges. This may 
 account for there being no case just like the one under 
 consideration. 
 
 I have always understood that the truth was a perfect 
 defense to actions of this kind ; that it was not only a right 
 every person had to disclose the fact, but that it was a duty 
 he owed to his country to proclaim abuses when found to 
 exist in public office — "For truth can be outraged by silence 
 quite as cruelly as by speech." 
 
 An exception is said to exist in favor of judges, but I 
 know of no good reason why the judicial department of the 
 government should be screened from the searchlight of 
 truth, while the officers of the other departments remain in 
 its glare. 
 
 The court says the "weight of authority" sustains the 
 law as so announced by the court ; and cites State vs. Mer- 
 rill, State vs. Frew, Myers vs. State, Sturoc's case. State vs. 
 Shepherd, and 7 American and English Encyclopedia of 
 Law and cases. This statement I must flatly dispute. 
 Judge Thomas, in his recent work on Constructive Con- 
 tempts, says : 
 
 "Out of forty-five states the courts of only two — Arkansas and 
 West Virginia — have set aside statutes in order to obtain jurisdic- 
 tion to punish as for a contempt a libelous newspaper publication, 
 * * * and two other courts — Georgia and Virginia — have held 
 that the court's inherent power to punish contempts cannot be 
 limited by legislative power; but these cases did not involve news- 
 paper publications." * * * "The courts in these four states 
 have gone farther than the courts in any other state, and they stand 
 alone in holding contempt statutes containing negative or restrictive 
 words unconstitutional in order to exercise this extraordinary power. 
 In these cases the question of the unconstitutionality of the statute 
 was squarely presented by the record, and decided by the courts. 
 
 "Another fact must not be overlooked in the examination of this 
 question, and that is, no court in this country, or any country for 
 that matter, ever set aside a statute in order to acquire jurisdiction
 
 214 ROBERT WILBUR STEELE 
 
 in a contempt case until the Supreme Court of Arkansas, in the 
 Morrill case, in 1855. did that." 
 
 So that, as this insignificant number of cases cannot 
 be regarded as sustaining the weight of authority, it must 
 be that state pride was a very important element in inducing 
 the statement from my brother Gunter. 
 
 I do not contend that one who in open court charges a 
 judge with corruption may justify his act by proof that his 
 charge is true, but I do contend that when the alleged con- 
 tempt consists of the publication in a newspaper of defama- 
 tory accusations such publication is not contempt, but libel, 
 and that the constitution intervenes to prevent that offense 
 from being tried by judges who are smarting under a sense 
 of injury; and that when a court takes cognizance of a 
 newspaper libel, either directly or remotely connected with 
 a pending case, upon the ground that the publication was 
 calculated and intended to influence its action, it ought, 
 nevertheless, to prosecute and convict only for the contempt, 
 and not for the libel ; and that, so far as the libel is con- 
 cerned, the truth is always a justification, no matter what 
 the court is pleased to call the offense. 
 
 I do not approve of the decision in State vs. Shepherd, 
 from which I have quoted, in so far as it declares the court's 
 jurisdiction; but I regard it as very much nearer correct 
 than the decision in this case. For in that case the defend- 
 ant was punished for publishing a false charge against the 
 court, while in this case it is held that a person is guilty of 
 contempt even though the charges made be true. 
 
 The theory upon which is based the doctrine that the 
 
 truth is not a defense is stated by counsel for the people in 
 
 the case People vs. Stewart, supra, when he said, referring 
 
 to the provision of the constitution which provides that the 
 
 truth may be given in evidence : 
 
 "This provision of the constitution only relates to criminal 
 prosecutions, and the truth may be given in evidence in such prose-
 
 THE OPINION IN THE PATTERSON CASE 215 
 
 cutions; but in a proceeding for contempt this cannot be done, and 
 ought not to be, because it is not considered as affecting the indi- 
 vidual, but the court. Whether the publication was true or false is 
 immaterial, because the court, as a court, must be protected, whether 
 right or wrong." 
 
 But this doctrine, though captivating, was repudiated 
 by the court and has found lodgment in none of the reports 
 of this country, and I trust its lodgment here is but tempo- 
 rary. Even in Arkansas, where we find the first decision 
 declaring the inherent power of the court to punish for this 
 character of contempts, and holding the legislative enact- 
 ment void which regulated the punishment and procedure, 
 this doctrine does not germinate, for this language appears 
 in Neal vs. State, 9 Ark., 259 : 
 
 "But while the aegis of the law is so thrown over the judge, it 
 finds no pleasure in him when he proves recreant to the high trust 
 reposed in him, for, in the language of one of its oracles (Sergeant 
 Hawkins), 'If a judge will so far forget the honor and dignity of 
 his post as to turn solicitor in a cause which he is to judge, and 
 privately and extra judicially tamper with witnesses, or labor 
 jurors, he hath no reason to complain if he be dealt with according 
 to the capacity to which he so basely degrades himself." 
 
 In repudiating the doctrine the Illinois court said : 
 
 "If a judge be libeled by the public press he and his assailant 
 should be placed on equal grounds, and their common arbiter should 
 be a jury of the country." 
 
 And, again, in People vs. Storey, supra, the court said : 
 
 "The theory of government (British) requiring royalty to be 
 invested with an imaginary perfection which forbids question or 
 discussion is diametrically opposed to our theory of popular govern- 
 ment, in which the utmost latitude and freedom of discussion of 
 business affecting the public and the conduct of those who fill posi- 
 tions of public trust, that is consistent with truth and decency, is 
 not only allowable but essential to the public welfare." 
 
 This doctrine does not thrive in Pennsylvania, for we 
 
 find the Supreme Court of that state asserting, in ex parte 
 
 Steinman, supra: 
 
 "We need not say that the case is altered and that it is now 
 the right and duty of a lawyer to bring to the notice of the people
 
 2l6 ROBERT WILBUR STEELE 
 
 who elect the judge every instance of what he believes to be corrup- 
 tion or partisanship." 
 
 Judge Thompson was not seduced by the pleasing doc- 
 trine, for he says : 
 
 "It is, moreover, to be observed that in states where, as in Colo- 
 rado, the people elect their judges, it is in accordance with the 
 spirit of our institutions that the newspaper press should possess the 
 same right to criticise the conduct of the judges which they possess 
 to criticise the conduct of any other official." 
 
 Nor was the editor of the Central Law Journal led 
 astray. He observes : 
 
 "The judiciary are but men, and therefore as open to corrupting 
 influences as those in control of any other of the co-ordinate branches 
 of the government, and, like them, need the deterring influence of 
 free public criticism." 
 
 And in Wisconsin — Wisconsin upon which we so 
 
 implicitly rely for our assertion of the high prerogative 
 
 power, and whose judgment we so often misconstrue — does 
 
 not relish the doctrine, for its judges say, in re Ashbaugh, 
 
 supra : 
 
 "Under such a rule the merits of a sitting judge may be 
 rehearsed, but as to his demerits there must be profound silence. 
 In our judgment no such divinity 'doth hedge about a judge,' cer- 
 tainly not when he is a candidate for public office." 
 
 Justice Brewer, when judge of the Supreme Court of 
 
 Kansas, denounced the doctrine, for he said, in re Pryor, 
 
 supra: 
 
 "For no judge and no court, high or low, is beyond the reach 
 of public and individual criticism." 
 
 With Wharton the doctrine does not find favor, for he 
 
 affirms : 
 
 "We can conceive not only of a weak judge who dreads intimi- 
 dation, but of a corrupt judge who dreads exposure. To give a 
 bad and bold man of this class an engine so potent as this is to do 
 away with one of the few means by which he can be exposed." 
 
 The court made a mistake in instituting the proceed- 
 ing ; a mistake in holding that an affidavit is not essential 
 to its jurisdiction; a mistake in holding that the acts of the
 
 THE OPINION IN THE PATTERSON CASE 217 
 
 respondent constituted contempt. But infinitely greater 
 than these was the mistake it made in holding the truth to 
 be immaterial. For, aside from the fact that it denied to 
 the respondent important constitutional rights, in the very 
 nature of things, those who before believed the charges to 
 be true are now confirmed in their belief, and those who did 
 not believe them now have their confidence in the court 
 shaken solely because of the action of the court in refusing 
 the respondent a hearing and denying him the right to offer 
 proof in support of the charges, and in holding that it is 
 entirely immaterial whether the matter published is true or 
 false.
 
 CHAPTER XI 
 
 THE RIGHT OF FREE ELECTIONS AND THE DECISION 
 IN THE TOOL CASE 
 
 "That all elections shall be free and open; and no power, civil 
 or military, shall at any time interfere to prevent the free exercise 
 of the right of suffrage." — Colorado Constitution, Bill of Rights, 
 section 5. 
 
 The growth of the system of machine politics in Colo- 
 rado was felt to be an evil and a danger by honest men of 
 all parties. It had brought the Republican party, once the 
 regular choice of the majority of the people of the state, 
 into a position of inferiority where it was discredited as well 
 as disapproved by a majority of the Independent voters. 
 It had fixed its control upon the local Democratic organiza- 
 tion in the city and county of Denver, holding its power 
 and winning its partisan victories by the most flagrant 
 frauds. The relations between the machine politicians and 
 the political corporations were intimate and two-fold, for, 
 while the political activity of the corporations was largely 
 the result of the evils of machine politics, some of the worst 
 evils of machine politics were the direct consequence of the 
 interference of corporations in matters that ought to have 
 remained entirely outside the range of their activity. 
 
 These evils, developed and ever increasing through 
 many years, reached their culmination in the contest for the 
 governorship in the election of 1904 and in the contest case 
 in the legislature in the early months of 1905. Those who 
 see in the contest between Alva Adams and James H. 
 Peabody merely a question of partisan success, a choice 
 between the Democratic candidate and his Republican rival, 
 have entirely failed to grasp the significance of historical 
 events. Neither can it be said that right and justice lay
 
 THE RIGHT OF FREE ELECTIONS IIQ 
 
 exclusively on either side. Peabody came before the people 
 with the handicap of the usurpation of military power that 
 Justice Steele had so cogently exposed in the decision in the 
 Moyer case. Adams' title was clouded by the undeniable 
 frauds of the Tammany organization of Denver. Neither 
 side could claim exemption from corporation support. One 
 large and powerful group of financial interests was aiding 
 the Republican with money and influence, and another, 
 scarcely less resourceful, was forwarding the cause of the 
 Democrat. 
 
 In the light of all the testimony and with the consensus 
 of the most impartial observers, Adams received an 
 undoubted majority of the fairly cast votes of the state. 
 That many votes were fraudulently and illegally cast for 
 him admits of no denial. That clever lawyers were able to 
 present specious arguments to warrant the seating and 
 retention of Peabody is a part of the record of the case. 
 The final failure of the legislature to establish Peabody's 
 claim, the subterfuge by which the Republican lieutenant 
 governor became the chief executive through Peabody's 
 resignation, the comparison of percentages of Republican 
 loss and Democratic gain in counties where there was no 
 suspicion of fraud or coercion, and the general trend of 
 public sentiment before, during and after the contest, all 
 point to the same conclusion — that Adams was the choice 
 of a majority of the legal voters in that election. 
 
 The electoral and legislative side of that contest does 
 not, however, concern the present volume. Robert Steele 
 was too patriotic, too much interested in public questions 
 and too clear-sighted as to the basic principles involved in 
 such matters not to feel a keen interest in this important 
 contest. But as a justice of the Supreme Court of the state 
 he held a position too high for partisanship, and his sense 
 of dignity and propriety was too clear to permit any par-
 
 220 ROBERT WILBUR STEELE 
 
 ticipation in a public discussion of a contest that might 
 come before him for judgment. 
 
 With an attempt that was made to bring the Supreme 
 Court into the domain of partisan politics, and to use its 
 authority and influence to forward the purposes of machine 
 control of elections, he had an immediate and direct con- 
 cern. 
 
 In what is known as the Tool case, the Supreme Court 
 was asked to grant a writ of injunction against precinct 
 judges of election, the fire and police board, the sheriff, the 
 chief of police, the chief of the fire department, the mem- 
 bers of the election commission, the chairman of the Demo- 
 cratic central committee of the city and county of Denver 
 and the chairman of the Democratic state central committee, 
 who were charged with conspiracy to defeat the will of the 
 people at the polls by fraudulent registration already 
 accomplished, and by other fraudulent practices contem- 
 plated for the period before and during the election. The 
 Supreme Court was further asked to appoint two watchers 
 for each designated precinct for the purpose of observing 
 how the election in those precincts was conducted. 
 
 In their reply the respondents challenged the jurisdic- 
 tion of the court in these matters, and claimed that the 
 relief sought was in conflict with section 5, article 2 of the 
 constitution, which provides that "All elections shall be 
 free and open, and no power, civil or military, shall at any 
 time interfere to prevent the free exercise of the r;ght of 
 suffrage." They further answered denying the conspiracy 
 charged or purpose upon their part to commit any of the 
 threatened illegal acts mentioned in the bill. 
 
 The decision of the court upon the main point, as 
 summarized (35 Colo., page 226), was: "Individuals can- 
 not invoke the power of a court of equity to enjoin the 
 commission of illegal acts on the ground that they injuri-
 
 THE RIGHT OF FREE ELECTIONS 221 
 
 ously affect the public interests, but the state, in its sover- 
 eign capacity as parens patriae, has the right, and it is its 
 duty, to protect its citizens when they are incompetent to 
 act for themselves, and it may maintain an action to prevent 
 the consummation of threatened combinations and acts 
 which will deprive the people of their liberties, rights and 
 privileges as citizens, although such combinations and acts 
 would constitute crimes." 
 
 From the decision of the court Justice Steele dissented, 
 although he filed no written opinion. 
 
 The injunction having been issued by the Supreme 
 Court, the election was held, after which proceedings in 
 contempt were instituted against certain persons named in 
 the writ. At their trial it was developed that they had 
 disobeyed the writ of the court by the perpetration of gross 
 frauds, for which they were convicted of contempt. After 
 these proceedings the attorney general, in the name of the 
 people, moved for an order directing the election commis- 
 sion to exclude the returns from these precincts in making 
 up the final abstract of votes. The decision of the court 
 was that the court had the authority to make such an order 
 in cases where frauds were committed to such an extent that 
 the returns are absolutely false and that the truth cannot 
 be deduced from them. The order was accordingly issued. 
 Without filing a written opinion, Justice Steele dissented 
 from the decision of the majority of the court. 
 
 In the counting of the votes of this election, the ques- 
 tion arose whether the election commission, acting as a 
 board of canvassers, may, in making up the returns, con- 
 sider the tally list, or is the board limited to the certificate 
 of the precinct election officials? In other words, in case 
 of a discrepancy between the tally list and such certificate, 
 which shall control ? The decision of the court was that 
 only the certificate can be considered and it cannot be
 
 222 ROBERT WILBUR STEELE 
 
 changed by the canvassers by reference to the tally list. 
 From this decision Justice Steele dissented orally, saying: 
 "/ dissent from the judgment, because, in my opinion, it is 
 unwarranted, without precedent, and directly contrary to 
 the law." 
 
 It should be remembered in consideration of these mat- 
 ters that they were a part of the Peabody-Adams contest, 
 which was itself a part of the larger struggle for the control 
 of the state, not merely between two political parties, but 
 also between two rival systems of politics and of govern- 
 ment. The election for which the Supreme Court was asked 
 to issue the injunction was that at which Peabody and 
 Adams headed the Republican and the Democratic state 
 tickets. The frauds alleged as a basis for the charge of 
 conspiracy, and later established as a fact upon which con- 
 tempt proceedings were based, were a part of the campaign 
 programme of the Tammany machine. The throwing out 
 of certain precincts by the board of canvassers under the 
 order of the court, and the ruling of the court concerning 
 the tally lists and the precinct certificates, gave Peabody his 
 majority upon the face of the returns and made him defend- 
 ant in possession instead of claimant in the ensuing contest 
 in the legislature. 
 
 The majority of the Supreme Court judges appre- 
 hended the fact that they were close to the border of politi- 
 cal and partisan activity, for they said in their original 
 opinion : 
 
 "The state has no interest in the success or defeat of any politi- 
 cal organization. It is immaterial that it appears from the aver- 
 ments of the bill that one political organization is in control of the 
 election machinery provided by law and will employ illegal means 
 to the detriment of the other; nor is it material that private relators 
 are named who are candidates of the Republican party, and that 
 respondents are engaged in a conspiracy which will result in fraud- 
 ulently depriving the Republican candidates of votes, and give to 
 the candidates of the Democratic ticket fraudulent and fictitious 
 votes. These are but incidents by which it is made to appear that
 
 THE RIGHT OF FREE ELECTIONS 223 
 
 the elections will be dishonestl}' and fraudulently conducted, so 
 that the ballots cast by the legal voters will not be counted as they 
 should be, or have the effect they should have, because of frauds. 
 * * * The prevention of frauds which it is charged they intend 
 to commit may have a political effect, in the sense that the success 
 or defeat of a political organization may be affected, but that does 
 not make the questions presented political instead of judicial. The 
 action is not to have this court exercise functions which belong to 
 any other department of government, but merely to construe the law 
 relative to the duty of the respondents and the power of the state 
 to execute its laws, and to command obedience to them. The ques- 
 tions presented by the bill are, therefore, purely judicial." 
 
 With the general proposition that the people of the 
 state, without regard to party, have a right to all the pro- 
 tection that can be given by the courts for their funda- 
 mental political rights, there can be no ground for dissent. 
 But, in view of the circumstances and precedent conditions, 
 it is difficult to avoid the conclusion that an effort was then 
 made, not wholly consciously by all its participants, to bend 
 the Supreme Court of the state to the uses of machine poli- 
 tics, just as the effort had been made to use the executive 
 department for a similar purpose; just as the effort was 
 afterward made to use the legislature to overthrow the plain 
 and manifest decision of the legal voters of the state at the 
 polls. 
 
 In an earlier decision, in the case of People ex rel. 
 
 L'Abbe vs. The District Court, at the April term, 1899 
 
 (26 Colorado, 386), the Supreme Court had declared that 
 
 the courts of Colorado were without jurisdiction to enjoin 
 
 the commission of threatened crime : 
 
 "However desirable or convenient it might appear to put a 
 stop to criminal practices by invoking the extraordinary writ of 
 injunction, we cannot permit the constitutional and statutory rights 
 of individuals to be thus violated. We cannot allow the writ of 
 injunction to usurp and take the place of the orderly processes of 
 the criminal law which the constitution and the legislature have 
 provided. Such a course as the District judge adopted, if approved 
 by us, would make of a single judge both court and jury in the trial 
 of a criminal action whose sole object is to punish one for commit- 
 ting a crime; and if a defendant refused to obey his injunctive 
 order, there could be no redress from a sentence for contempt
 
 224 ROBERT WILBUR STEELE 
 
 imposed for its violation. Such an unlimited power is too great to 
 be conferred; at least, it has not been intrusted to any judge or 
 court by the constitution or laws of the state. * * * As for this 
 court, its highest obligation is to observe and enforce the constitution 
 whose creature it is, and it is contrary to the conception of duty 
 entertained by its members to permit precedents to be made in defi- 
 ance of the constitution." 
 
 The plain proposition presented in the Tool case was 
 that the Supreme Court of the state should in a measure 
 assume control of the election. It was asked to issue to the 
 election officials a mandate supplementary to that laid upon 
 them in the statute enacted by the constitutional lawmaking 
 authority. It was proposed to send to the polling places 
 representatives of the supreme judicial power to act in 
 a quasi-executive capacity toward the enforcement of the 
 supplementary legislation prescribed by the court. It was 
 intended to make this exercise of authority effective through 
 the power of the court acting in arbitrary contempt proceed- 
 ings under which the ordinary safeguards of criminal pro- 
 cedure were wholly lacking. Had there been no apparent 
 excuse for such assumption of extraordinary authority, it 
 could not have been approved by any intelligent citizen. 
 There was excuse. The Democratic frauds had been bold 
 and glaring. The rights, not merely of another political 
 party but of the honest citizens of the state, were endan- 
 gered. And one party within the state held to the theory 
 that the constitutional provisions might properly be strained, 
 or perhaps broken, in order to serve the apparent passing 
 need of the moment, while another party maintained the 
 belief that the constitution should be kept inviolate, lest in 
 seeking a remedy for a present evil the way might be opened 
 for the entrance of far greater dangers. If in one election 
 the court might send its watchers to secure evidence for 
 subsequent proceedings under its authority to punish for 
 contempt in violations of its mandate, at another time 
 another set of judges with greater partisan bias and with
 
 THE RIGHT OF FREE ELECTIONS 22^ 
 
 less regard for elemental justice might obstruct the free 
 decision of the people at the polls. If the Supreme Court 
 at one time should direct the election officials to prepare 
 their count in a certain manner, thereby giving color of 
 title to the governorship to one who was afterwards demon- 
 strated to be the minority candidate, a precedent would be 
 established that might at some future time prove a stepping 
 stone to a grosser usurpation of power by reckless and auda- 
 cious partisans. 
 
 In so far as the power of the court was sincerely and 
 legitimately used to prevent or to punish crime and fraud, 
 its acts were commendable. In so far as they served the 
 purposes of partisanship and prepared the way for the 
 subsequent effort in the legislature to maintain as governor 
 one who received less than the number of honest votes 
 honestly cast for his opponent, those acts were regrettable 
 and dangerous. Some honest citizens approved them as 
 wise and necessary, but a much larger number saw in them 
 additional evidence of the struggle of the machine system 
 of politics to strengthen and to maintain its hold upon the 
 state government in opposition to the rising power of public 
 sentiment for cleaner politics and better government. 
 
 It is to be regretted that Justice Steele did not leave 
 upon the record in the Tool case such a comprehensive 
 statement of his reasons and his authorities as was given to 
 the public in the Moyer case and the Patterson case. But 
 he left no doubt of his position in any of these matters, and 
 it is certain that in his dissents he was influenced by no 
 partisan prejudices, and that he saw clearly the constitu- 
 tional and fundamental principles of free government that 
 were involved in them.
 
 CHAPTER XII 
 
 THE RIGHT OF POPULAR SELF-GOVERNMENT 
 
 "In order to assert our rights, acknowledge our duties and 
 proclaim the principles upon which our government is founded, we 
 declare: 
 
 "Section 1. That all political power is vested in and derived 
 from the people; that all government, of right, originates from the 
 people, is founded upon their vv'ill only, and is instituted solely for 
 the good of the whole. 
 
 "Section 2. That the people of the state have the sple and 
 exclusive right of governing themselves, as a free, sovereign and 
 independent state; and to alter and abolish their constitution and 
 form of government whenever they may deem it necessary to their 
 safety and happiness, provided such change be not repugnant to the 
 constitution of the United States." — Colorado Constitution, Bill of 
 Rights. 
 
 The struggle to secure a satisfactory government of 
 cities in Colorado has been long, tedious and troublesome, 
 and it is not yet wholly accomplished. In the year follow- 
 ing the admission of the state to the Union, the legislature 
 (1877) divided the cities of the state into two classes, those 
 with more than 15,000 inhabitants constituting the first 
 class, while those with from 2,000 to 15,000 inhabitants 
 were of the second class. The terms of the law were gen- 
 eral, but then, as now, Denver was in a class by itself. 
 Thus early the legislature recognized the principle that the 
 municipalities of the state ought not all to have exactly the 
 same kind of government, and this fact was further recog- 
 nized when the city of Denver was given a special charter 
 by the legislature and was thus removed from the general 
 laws governing the cities of the first and second classes. 
 
 Up to the year 1901, Colorado cities, like the cities of 
 other American states, were governed by political machines. 
 Primitively and primarily these machines were partisan, 
 but as the methods of machine politics becaine more effec-
 
 THE RIGHT OF POPULAR SELF-GOVERNMENT 227 
 
 tive, and as the public utility corporations came to have a 
 more intimate concern in the affairs of politics and of gov- 
 ernment, the machines became bi-partisan in the sense that 
 the activities of the same group of men extended through 
 the organization of both the two principal political parties, 
 and they became non-partisan in the sense that their main 
 purpose was not to accomplish partisan policies, but to serve 
 the interests of the machine politicians and of special inter- 
 ests, corporate or individual. 
 
 In 1903, after years of political discussion and of 
 legislative controversy, there came before the Supreme Court 
 a case, entitled People vs. Sours, which involved the essen- 
 tial features of the problem of municipal government. To 
 a greater degree than either the Moyer case, the Patterson 
 case or the Tool case, the Sours case was one of legal tech- 
 nicalities, but back of the issues of legislative powers and 
 constitutional limitations were important principles insepa- 
 rably linked with the right of the people to govern them- 
 selves through the will of the majority. The decision in 
 the Sours case was delivered by Justice Steele, who thus 
 early in his judicial career found himself in the majority 
 of the court, but that decision was not conclusive. It was 
 practically reversed in the decisions in the case of People 
 vs. Johnson and its allied cases (1904-5), from which 
 Justice Steele dissented; and it was sustained and restored 
 in the later decision in the case of The People ex rel. Attor- 
 ney General vs. Cassiday et al. (50 Colo., 503), decided 
 May, 1911. The case of Uzzell vs. Anderson (38 Colo., 
 page 32) was an allied case with special reference to that 
 part of the old Arapahoe County not included within the 
 city and county of Denver; and the case of People vs. 
 Horan (34 Colo., page 304) is still another portion of the 
 com.plex mass of litigation.
 
 228 ROBERT WILBUR STEELE 
 
 All of these cases, with others more or less directly 
 connected, must be considered together, for it cannot be said 
 of any one of them that in it the constitutional questions 
 and the principles of popular free government were focused 
 and determined. All of them involved the amendment that 
 added the twentieth article to the state constitution, and 
 that amendment is the basic charter of liberty for the cities 
 of the state. It was not primarily so intended, for in its 
 original form it was limited to the city of Denver, but in 
 the course of its passage through the legislature it was 
 amended so as to include all cities of the first and second 
 classes, under the sweeping provision: "The people of the 
 city and county of Denver are hereby vested with, and they 
 shall always have the exclusive power in the making, alter- 
 ing, revising or amending their charter," and the further 
 provision : "The citizens of the city and county of Denver 
 shall have the exclusive power to amend their charter, or to 
 adopt a new charter, or to adopt any measure as herein 
 provided." And in the section whereby this power is 
 extended to other cities of the state, both great and small, 
 it is specifically provided that these cities shall have "full 
 power as to real and personal property, public utilities, 
 works or ways." 
 
 How such a sweeping grant of local self-government 
 and of manumission from servitude to the allied forces of 
 machine politics and special privilege ever slipped past the 
 watchful guardians of those interests in house and senate 
 at that time must always remain one of the mysteries of 
 Colorado politics. But, in view of the determined and per- 
 sistent attack made upon the twentieth article, beginning 
 almost immediately upon its adoption by the people and 
 continuing even past the day of present writing, it seems 
 reasonable to suppose that its importance was underesti- 
 mated. It was considered to be merely a permit to the
 
 THE RIGHT OF POPULAR SELF-GOVERNMENT 229 
 
 people of Denver to write another charter, similar in its 
 essential features to that under which they had been pre- 
 viously plundered and misgoverned, and its broad extent 
 and possibilities were not generally recognized, even though 
 a full measure of credit be reserved to those who secured 
 its enactment in its enlarged form. 
 
 The decision in the Sours case was delivered by Justice 
 Steele, and it was supported in a special concurrent opinion 
 by Justice William H. Gabbert, who came to the Supreme 
 bench in 1897 as a Populist-Democrat. Extended quota- 
 tions from this decision are reserved for the following 
 chapter, but a few sentences show clearly that Justice Steele 
 realized the importance of the twentieth article and that he 
 was wholly in accord with its purpose to give the people of 
 Colorado cities the right to govern themselves. 
 
 "At the outset, it should be stated," he said, "that every 
 reasonable presumption, both of law and fact, is to be 
 indulged in favor of the validity of an amendment to the 
 constitution when it is attacked after its ratification by the 
 people," and with that single sentence he swept out of exist- 
 ence the entire mass of technicalities which skillful lawyers 
 had attempted to interpose between the people and the object 
 of their will. Again, he said : "It appears to be a universal 
 rule that, unless the court is satisfied beyond a reasonable 
 doubt that the constitution has been violated in the submis- 
 sion of a constitutional amendment, the amendment must 
 be upheld. This is not a flexible rule, to be applied to suit 
 emergencies, but is a rule adopted to secure to the people 
 the right they have to change the organic law whenever 
 necessary for their safety and happiness. It means that, 
 whenever the will of the people has been ascertained in a 
 manner conforming substantially to the provisions of the 
 constitution, the court shall brush aside all merely tech- 
 nical obstructions, without regard to the result. It is not
 
 230 ROBERT WILBUR STEELE 
 
 proper!)- applied by merely recognizing and stating it at 
 the beginning of an opinion, and afterward rejecting every 
 liberal doctrine of construction by which learned judges and 
 learned courts have been able to reconcile, and permit to 
 stand, each within its own sphere, constitutional or statutory 
 provisions that appear to be repugnant." 
 
 As a result of the decision in the Sours case, the officers 
 of the county of Arapahoe and of the city of Denver, 
 according to the manner provided in the amendment, effec- 
 tuated the consolidation into the city and county of Denver. 
 A charter convention was held and the product of its labor 
 was presented to the people of Denver, and by them rejected. 
 A second convention was held and its charter was approved, 
 and under its provisions a full set of city-and-county offi- 
 cers were elected on May 17, 1904, and assumed their 
 offices without protest or obstruction, legal or otherwise. 
 At the general fall election of that year the county offices 
 would have been filled in regular order if the consolidation 
 had not been made effective. The Republican convention 
 met and adjourned without nominating county officers, but 
 appointed a committee of seven prominent attorneys, which 
 reported that the convention ought to reassemble and nomi- 
 nate a candidate for county judge, but they recommended 
 that no further nominations be made ; and such action was 
 had by the convention, which then finally adjourned. At 
 this point the record is obscured by partisan politics. The 
 Democrats, claiming that the Republicans, through their 
 committee on vacancies, would nominate county candidates 
 at the latest moment, completed their ticket with the names 
 of the then acting officials of the city-and-county of Denver. 
 The Republicans, claiming justification in the acts of the' 
 Democratic convention, then proceeded to do what the Dem- 
 ocrats said the Republicans would do, and nominated a full 
 county ticket. The election which followed was that memo-
 
 THE RIGHT OF POPULAR SELF-GOVERNMENT 23 1 
 
 rable contest in which the state tickets were headed by- 
 James H. Peabody and Alva Adams, and in which the 
 Supreme Court intervened by writ of injunction and by 
 placing watchers at the polls. The Democratic candidates 
 had a majority upon the face of the returns; the Pvepub- 
 licans claimed that the apparent majorities were the result 
 of extensive frauds ; the Democrats asserted that, with all 
 fraudulent votes eliminated, they still had a lawful and 
 honest plurality. The Supreme Court, declaring that it 
 was impossible to distinguish and segregate the honest and 
 legal votes, ordered the election commission to reject the 
 entire returns in certain precincts, and thereby gave certifi- 
 cates of election to the Republican candidates for offices 
 which had been declared non-existent by the decision of the 
 Supreme Court in the Sours case. (See decision in Cassi- 
 day case, paragraph 5, page 278.) These Republican 
 county officers thereupon brought proceedings in quo war- 
 ranto against the city-and-county officials who were elected 
 in May. 
 
 The principal decision of the Supreme Court was in 
 the case of People vs. Johnson, the decision being en banc 
 and delivered by Justice Maxwell, Justice Steele dissenting 
 and Justice Gunter concurring in the dissenting opinion. 
 Although the effect of the decision in the Johnson case was 
 exactly contrary to the effect of that in the Sours case, the 
 majority of the court undertook to establish the proposition 
 that the later decision was merely carrying the principles 
 set forth in the former case to their logical conclusion. The 
 court having held in the Sours case that article 20 did "not 
 exempt a portion of the state from the provisions of the 
 constitution and laws of the state," the decision in the John- 
 son case declared that "the people cannot by amendment to 
 the constitution free any portion of the state from any part 
 of the constitution." The Sours decision upheld the provi-
 
 232 ROBERT WILBUR STEELE 
 
 sion that "the citizens of the city and county shall have 
 exclusive power to adopt or to amend their charter or to 
 adopt any measure as provided in the amendment." The 
 Johnson decision declared that the charter convention under 
 the amendment had no authority to legislate on any subject 
 whatever in contravention of any provision of the constitu- 
 tion relative to governmental or state matters or to county 
 or state offices and officers, but that its authority to legislate 
 is limited to matters purely local and municipal in their 
 character." 
 
 The decision in the Sours case was in effect that the 
 people of the city and county might assign to city-and- 
 county officers county duties prescribed by general law, and 
 might regulate the terms of such employment. The effect 
 of the Johnson decision was that the people of the city and 
 county must maintain independent county officials separate 
 and distinct from those maintained by the city. 
 
 Into the Sours decision Justice Steele incorporated that 
 principle of construction which embodies the fullest recog- 
 nition of the sovereign power of the people as the original 
 source of official authority and as the final and ultimate 
 arbiter of every appeal : "Wherever the will of the people 
 has been ascertained in a manner conforming substantially 
 to the provisions of the constitution, the court shall brush 
 aside all merely technical obstructions, without regard to 
 the result." 
 
 Out of the Sours decision itself the majority of the 
 court gathered the technical material upon which to base a 
 decision, not merely that the people had failed to do what 
 they manifestly desired to do, but that they had no author- 
 ity or way to do what they desired to do. 
 
 If at any time in the course of his high judicial career 
 Justice Steele needed an excuse for intemperance of thought 
 or language, that excuse might have been found ready at
 
 THE RIGHT OF POPULAR SELF-GOVERNMENT 233 
 
 hand when the decision in the Johnson case not only drew 
 from his propositions conclusions the direct opposite of his 
 purpose, but perverted his own statements to a meaning 
 quite different from that which was clearly conveyed by 
 them. Yet one may look in vain through the dissenting 
 opinion in the Johnson case for any trace of matter or of 
 feeling unbefitting the dignity, the calm or the equipoise of 
 that high court. The circumstances were exasperating, but 
 he made no complaint of injustice to himself. Without 
 yielding an inch of the position he had assumed, he pointed 
 out the error in logic and what he believed to be the defect 
 in law of the majority decision, and left the incident to the 
 judgment of fair-minded men. "The writer did say," says 
 Justice Steele, "in substance that which is attributed to him, 
 but the conclusions drawn from what he said are to be found 
 neither in the Sours case nor in any other case. The court 
 says" — in the Johnson decision — " 'Under the language 
 used no one of the three things can be done by the people, 
 and it follows that no portion of any of them can be done ; 
 that no portion of the state can be freed from any portion 
 of the constitution.' It requires a reversal of the decision 
 in the Sours case to reach the conclusion that no portion of 
 the state can, by constitutional amendment, be freed from 
 any provision of the constitution. For it was held in posi- 
 tive language in that case not only that the people could 
 but that they had freed Denver from several provisions of 
 the constitution by making article 20 a part of their consti- 
 tution. '•' * " It is to be regretted that this court felt 
 in duty bound to undo the work of the charter convention 
 and to deny the people of this city and county the right to 
 provide for a simple and economical plan of government as 
 directed by the constitution." 
 
 In the Sours case Justice Steele had declared the "uni- 
 versal rule that unless the court is satisfied beyond a reason-
 
 234 ROBERT WILBUR STEELE 
 
 able doubt that the constitution has been violated in the 
 submission of a constitutional amendment, the amendment 
 must be upheld." And he added: This rule "is not prop- 
 erly applied by merely recognizing and stating it at the 
 beginning of an opinion, and afterward rejecting every 
 liberal doctrine of construction by which learned judges and 
 learned courts have been able to reconcile and permit to 
 stand, each within its own sphere, constitutional or statutory 
 provisions that appear to be repugnant." These sentences 
 were not quoted among those by which the court undertook 
 to support its decision in the Johnson case, and Justice 
 Steele refrained from repeating them in his forceful argu- 
 ment that the Sours decision did not bear the meaning 
 imputed to it or warrant the conclusions drawn therefrom. 
 The fundamental principle involved in these cases was 
 not the clashing interests of two rival partisan candidates, 
 it was not even the question of the consolidation of the city 
 and county of Denver, but it was the right of the people of 
 the cities to local self-government, drawn from and depend- 
 ent upon the larger right of the people of the state to govern 
 themselves and to alter and abolish their constitution and 
 form of government whenever they may deem it necessary 
 to their safety and happiness, provided that such change be 
 not repugnant to the constitution of the United States. 
 These words, quoted from the bill of rights of the Colorado 
 constitution, admit of but one reasonable interpretation, 
 which is that the makers of the constitution intended to 
 make of it an instrument for forwarding and a shield for 
 defending the will of the majority of the people, according 
 to the basic principles of the American system of govern- 
 ment, and not an obstacle or a fetter against the free execu- 
 tion of that will. Yet if the decision in the Sours case as 
 it was interpreted in the Johnson case had become estab- 
 lished as the supreme and fundamental law of the state,
 
 THE RIGHT OF POPULAR SELF-GOVERNMENT 235 
 
 "that no portion of the state can be freed from any provi- 
 sion of the constitution," it would not only have blocked 
 the road to a reform of municipal government, but it would 
 have become one of the strongest entrenchments of minority 
 power within the government of the state. If the judges of 
 the Supreme Court had the right to impose their constitu- 
 tional interpretations as a restriction upon the power of the 
 people of the state to establish their will as to the conditions 
 for the government of cities, those judges would have the 
 same right to impose other similar limitations upon the 
 people's right of self-government, which is so broadly and 
 positively declared by the bill of rights. 
 
 For a half dozen years it did stand as the last word 
 of supreme judicial authority, until the Supreme Court, 
 reconstituted by the will of the people in a general election, 
 nullified its former denial of the sovereign rights of the 
 people as the constitution-making power, and restored the 
 original doctrine of the Sours case, as stoutly maintained 
 by Justice Steele in the Johnson case, to its primitive mean- 
 ing and effect. (See page 277.) Yet even in those years 
 the amendment bore a precious fruit of popular liberty. 
 The Sours decision was a broad approval of the grant of 
 power of self-government for the cities of the state. The 
 Johnson decision denied the right of a charter convention 
 to legislate concerning county offices or officers. Under the 
 Sours decision other cities than Denver claimed and estab- 
 lished their right of local self-rule, wrote their own charters 
 and adopted that form of government which seemed to them 
 best adapted for their local needs and conditions. Even 
 while the Johnson decision remained in force, Grand Junc- 
 tion, Colorado Springs and Pueblo installed the commission 
 plan of city administration, and later the people of Denver 
 amended their charter to a similar form.
 
 236 ROBERT WILBUR STEELE 
 
 The fundamental wrong of the old system was that it 
 made city officials unaccountable to the people's will. Its 
 greatest weakness was that it denied to them the power 
 necessary to the proper performance of their duties. To 
 prevent the abuse of power, power had been divided beyond 
 the limits of efficiency ; checks and balances had been multi- 
 plied until it was impossible for any official to estimate 
 correctly the bounds of his own duty and authority, or for 
 any citizen to know what official should be held responsible 
 for faults or abuses in the city government. The result 
 was that the city official, however intelligent or well- 
 meaning, found himself utterly unable to perform his plain 
 duty to the people. He came into office as the nominee and 
 the candidate of a political machine, he owed his election to 
 that same power, which effectively enforced its authority by 
 means of the party rules and customs. His success or fail- 
 ure in office and his future preferment in positions of public 
 authority and honor seemed to depend mainly upon his 
 loyalty to the machine and not to the people, and if he set 
 himself resolutely and honestly to the performance of his 
 duty, he quickly found himself opposed by a combination 
 of political and selfish forces, with which the meager power 
 allotted to him was quite unable to cope. 
 
 The theory of the commission plan is to give a full 
 grant of public power to public officials for the public 
 advantage and the public defense ; to localize that authority 
 so that it may be at all times recognizable and accountable ; 
 and to make all officials at all times directly and immedi- 
 ately answerable to the people for an abuse of that power. 
 The details of the commission plan in their application to 
 the innumerable local conditions of American cities, great 
 and small, have not been fully determined. The legal 
 entanglements of this radical change in the system of 
 municipal government have not been completely developed.
 
 THE RIGHT OF POPULAR SELF-GOVERNMENT 237 
 
 The principles of the commission form in making effective 
 the will of the people in opposition to the conspiracies of 
 machine politicians, franchise grabbers, organized law- 
 breakers, and other criminal, anarchistic or merely merce- 
 nary forces of the cities, are a part of the principles of the 
 American system of free government. 
 
 The decision in the Sours cases affords probably the 
 best illustration of the clearness and quickness with which 
 Justice Steele's mind reached to and grasped the funda- 
 mental principles of a case presented for his consideration, 
 while his dissenting opinion in the Johnson case shows how 
 logically his mind maintained the principle he had an- 
 nounced, how skillfully he avoided the pitfalls of special 
 pleading, and how resolutely, powerfully and withal calmly 
 he defended that which he knew to be right. 
 
 "Judge Steele was not much interested in the techni- 
 calities of the law," said one lawyer who knew him well. 
 "He gave slight attention and little weight to the skillful 
 arguments of those attorneys who drew their material from 
 the maze of precedents and the fine shades of legal defini- 
 tions. But when a principle of justice was at stake, or when 
 there was involved some impairment of the rights of the 
 people, his keenest interest was immediately aroused, and 
 the cause of liberty never had a more earnest or a more 
 powerful champion."
 
 CHAPTER XIII 
 
 THE DECISIONS IN THE RUSH AMENDMENT CASES 
 
 In the case of The People ex rel. Elder as Treasurer 
 of the City and County of Denver vs. Sours (31 Colo., page 
 369), Justice Robert W. Steele delivered the opinion of the 
 court, which was supported by a special concurrent opinion 
 of Justice Gabbert. Chief Justice Campbell filed a dissent- 
 ing opinion. 
 
 "At the time of the filing of the pleadings in the case," 
 said Justice Steele, "we determined that the burden was 
 upon the respondent to establish the fact that the constitu- 
 tion had been violated in proposing and submitting the 
 amendment. At the outset it should be stated that every 
 reasonable presumption, both of law and fact, is to be 
 indulged in favor of the validity of an amendment to the 
 constitution when it is attacked after its ratification by the 
 people. In the determination of these questions we ought 
 constantly to keep in mind the declaration of the people in 
 the bill of rights: 
 
 " 'That the people of this state have the sole and exclusive 
 right of governing themselves, as a free, sovereign and independent 
 state; and to alter and abolish their constitution and form of gov- 
 ernment whenever they may deem it necessary to their safety and 
 happiness;' , 
 
 and we should examine the objections which have been 
 
 raised against the validity of this amendment from the 
 viewpoint of a fair and liberal construction, rather than 
 from that of one which unnecessarily embarrasses the exer- 
 cise of the right of amendment. As was said by Judge 
 Handy in 1856 in delivering the opinion of the court in 
 Green vs. Weller (32 Miss., 684), 
 
 " 'There is nothing in the nature of the submission which should 
 cause the free exercise of it to be obstructed or that could render it
 
 THE DECISIONS IN THE RUSH AMENDMENT CASES 239 
 
 dangerous to the stability of the government; because the measure 
 derives all its vital force from the action of the people at the ballot 
 box, and there never can be danger in submitting, in an established 
 form, to a free people, the proposition whether they will change 
 their fundamental law. The means provided for the exercise of 
 their sovereign right of changing their constitution should receive 
 such a construction as not to trammel the exercise of the right. 
 Difficulties and embarrassments in its exercise are in derogation of 
 the right of free government, which is inherent in the people and 
 the best security against tumult and revolution is in the free and 
 unobstructed privilege to the people of the state, to change their 
 constitution in the mode prescribed by the instrument.' 
 
 ******* 
 
 "It is said that the constitution does not require that a 
 proposed constitutional amendment be enrolled, and that, 
 therefore, we should not consider the fact that an enrolled 
 bill has been filed with the secretary of state, but should 
 confine our investigation to the legislative journals; and, if 
 there is a discrepancy between the two journals, that the 
 constitutional provision that the proposal shall be entered 
 in full upon legislative journals has not been complied with. 
 * ^i •-;: w^e think we should not be restricted in our 
 investigation to the journals of the two houses, but should 
 determine, as a matter of fact, from all the evidence which 
 can be produced of a public nature, whether the bill as 
 passed by the senate and by the house was the same 
 bill. * * - 
 
 "An inspection of the manuscript journal of the house 
 shows that the printed bill (before amendment) was inserted 
 bodily in the house journal, and it seems clear that the 
 failure to make the change made by the senate was a mere 
 clerical omission on the part of the employe of the house. 
 This amendment, as were the amendments in Kansas, was 
 discussed for nearly a year before its submission to the 
 people; it bore the endorsement of every political party; 
 it received at the polls more votes than were theretofore 
 cast for any other amendment submitted to the people. It 
 is shown beyond a reasonable doubt that the bill as amended
 
 240 ROBERT WILBUR STEELE 
 
 passed the house ; and if the will of the people is to be 
 thwarted by the design or carelessness of an employe of the 
 legislature, then are the foundations of our government 
 unstable and unenduring. 
 
 "The objections to the provisions of the amendment ■ 
 itself, and to the extent that it, either necessarily or unneces- 
 sarily, changes existing rules of law applicable to the 
 municipal and quasi-municipal corporations embraced within 
 the territorial limits of the city and county of Denver, are 
 more grave and important than the one just passed upon. 
 It is contended that the proposed amendment violates the 
 provisions of the constitution concerning proposals of 
 amendments by the legislature because: 1. It adds a new 
 article to the constitution. 2. It amends more than six 
 articles of the constitution ; if not, it amends more than one 
 article, and amendments to five other articles were sub- 
 mitted by the legislature at the same session. 3. It contains 
 distinct amendments of the constitution that should have 
 been submitted separately. 4. The amendment to the con- 
 stitution that authorizes six amendments is itself unconsti- 
 tutional. 5. It was submitted under a deceptive and mis- 
 leading title. It is also contended that the amendment is 
 inoperative and void, even though properly proposed and 
 submitted, because: 1. It violates the provision of the 
 fourteenth amendment to the constitution of the United 
 States that 'no state shall make or enforce any law which 
 shall abridge the privileges or immunities of citizens of the 
 United States; nor shall any state deprive any person of 
 life, liberty or property without due process of law, nor 
 deny to any person within its jurisdiction the equal protec- 
 tion of the laws.' 2. It violates the provision of section 4 
 of the enabling act providing that the constitution shall be 
 republican in form * * * and not be repugnant to 
 the constitution of the United States and to the principles
 
 THE DECISIONS IN THE RUSH AMENDMENT CASES 24I 
 
 of the Declaration of Independence. 3. Its operation is 
 dependent upon contingencies. 
 
 "Counsel say : '* * * this instrument says that 
 the city and county of Denver can adopt miy measure, and 
 shall always have the exclusive power to make, alter and 
 revise their charter. * * * That language means 
 something. It displaces, and was intended to displace, the 
 constitution, the laws, and the general assembly.' If this 
 amendment must be given that construction it cannot be 
 sustained. Even by constitutional amendment, the people 
 cannot set apart any portion of the state in such a manner 
 that that portion of the state shall be freed from the con- 
 stitution, or delegate the making of constitutional amend- 
 ments concerning it to a charter convention, or give to such 
 charter convention the power to prescribe the jurisdiction 
 and duties of public officers with respect to state govern- 
 ment as distinguished from municipal, or city government. 
 The duties of judges of the District Court, county judges, 
 district attorneys, justices of the peace, and, generally, of 
 county officers are mainly governmental ; and, so far as 
 they are governmental, they may not be controlled by other 
 than state agencies without undermining the very founda- 
 tion of our government. Under the constitution of the 
 United States, the state government must be preserved 
 throughout the entire state ; and it can be so preserved only 
 by having within every political subdivision of the state 
 such officers as may be necessary to perform the duties 
 assumed by the state government, under the general laws 
 as they now exist or as they may hereafter exist. 
 
 "* * * The amendment is to be considered as a 
 whole, in view of its expressed purpose of securing to the 
 people of Denver absolute freedom from legislative inter- 
 ference in matters of local concern ; and, so considered and
 
 242 ROBERT WILBUR STEELE 
 
 interpreted, we find nothing in it subversive of the state 
 government, or repugnant to the constitution of the United 
 States. 
 
 "It is said that the amendment is void because it is 
 dependent upon future contingencies. That the proposal, 
 if valid, became a part of the constitution upon its ratifica- 
 tion ; whereas, the provisions relative to the creation of a 
 charter for Denver depend upon the will of the people, 
 which may never be exercised. In other words, that the 
 amendment is invalid because it authorizes the people of 
 the city and county of Denver to make a charter and that 
 the people of Denver may never make one. This is not a 
 contingency within the meaning of the law. 
 
 "It is stated that the proposal was submitted under a 
 misleading and deceptive title. There is no proof that any 
 elector was deceived by the title under which the amend- 
 ment was submitted, and the proposed amendments were 
 published in full in a newspaper in each county of the state 
 for four weeks preceding the election. In this connection it 
 is urged that the people who voted for this amendment 
 constituted only a minority of the electors of the state, and 
 that only about one-third of the electors expressed them- 
 selves upon the subject of the amendment. This is not 
 very important, for we should be compelled to sustain this 
 amendment though but a bare majority of the electors had 
 favored it if, in our opinion, it was legally submitted and 
 ratified, and we should declare it invalid if its invalidity 
 were established beyond a reasonable doubt, although it had 
 received the unanimous support of the electors. It is hard 
 to account for the apparent indifference of the people on 
 the occasion of the submission to them of changes in their 
 organic law. The indifference which prevails in Colorado 
 prevails in other states, and it rarely occurs that a proposed 
 amendment to the constitution receives the attention of more
 
 THE DECISIONS IN THE {LUSH AMENDMENT CASES 243 
 
 than one-half of those who vote for candidates for office. 
 In the absence of a constitutional provision to the contrary, 
 the people who do not express themselves upon the subject 
 submitted to them are regarded as having assented to a 
 determination by those who do express themselves. 
 
 "The amendment which authorizes six amendments is 
 attacked because, as it is said, it was not the intention of 
 the framers of our constitution to permit revision and alter- 
 ation of the constitution except by constitutional convention. 
 The original constitution does not say that the article 
 entitled 'Amendments' cannot be amended, but says the 
 legislature shall not propose amendments to more than one 
 article at one session. 
 
 ******* 
 
 "In the main we regard the questions presented as judi- 
 cial, although in the briefs and arguments upon the rele- 
 vancy of certain provisions of the amendment to its main 
 object or purpose, questions of policy and expediency have 
 been discussed which are legislative rather than judicial; 
 but we are clearly of opinion that the legislature cannot 
 propose an amendment to the constitution not in substantial 
 compliance with its provisions. 
 
 "It appears to be a universal rule that, unless the court 
 is satisfied beyond a reasonable doubt that the constitution 
 has been violated in the submission of a constitutional 
 amendment, the amendment must be upheld. This is not 
 a flexible rule, to be applied to suit emergencies, but it is a 
 rule adopted to secure to the people the right they have to 
 change the organic law whenever necessary for their safety 
 and happiness. It means that, whenever the will of the 
 people has been ascertained in a manner conforming sub- 
 stantially to the provisions of the constitution, the court 
 shall brush aside all merely technical obstructions without 
 regard to the result. It is not properly applied by merely
 
 244 ROBERT WILBUR STEELE 
 
 recognizing and stating it at the beginning of an opinion 
 and afterward rejecting every liberal doctrine of construc- 
 tion by which learned judges and learned courts have been 
 able to reconcile and permit to stand, each within its own 
 sphere, constitutional or statutory provisions that appear to 
 be repugnant. 
 
 "We are not only not satisfied beyond a reasonable 
 doubt that the constitution has been violated, but are of the 
 opinion that the amendment proposed can be sustained upon 
 purely legal principles, supported by adjudicated cases. 
 ******* 
 
 "We therefore conclude that the disagreement between 
 the journals is a mere clerical mistake, that the same bill in 
 fact passed both houses, and that the entering by mistake 
 upon the journal of the house of the half dozen words 
 quoted does not violate the provision of the constitution 
 requiring the proposal to be entered in full upon the jour- 
 nals of both houses. That, under the constitution, the legis- 
 lature may propose an amendment as an original article or 
 as an amendment to an existing article. That the limitation 
 that the legislature may not propose amendments to more 
 than six articles of the constitution at the same session does 
 not apply to constructive amendments, or amendments by 
 implication. That an amendment may embrace more than 
 one subject. That if an amendment embraces more than 
 one subject, such subjects need not be separately submitted 
 if they are germane to the general subject of the amend- 
 ment, or if they are so connected with or dependent upon 
 the general subject that it might not be desirable that one 
 be adopted and not the other. 
 
 "That this amendment does relate to a single, definite 
 object or purpose, and that the several matters objected to 
 as not germane thereto do appear to be so connected with or 
 dependent upon that object or purpose that they ought not 
 to have been separately submitted.
 
 THE DECISIONS IN THE RUSH AMENDMENT CASES 245 
 
 "We have examined all the questions presented, and 
 have disposed of those we regard as essential to a deter- 
 mination of the case. 
 
 "We do not hold that, in proposing amendments to 
 the constitution, the document itself can be ignored, or that, 
 because the people have ratified it, an amendment proposed 
 in violation of the constitution nevertheless becomes a part 
 of that instrument ; but hold that in the proposal and sub- 
 mission of this amendment the constitution has not been 
 violated. 
 
 "We are not unmindful of the fact that authorities 
 have been cited which support views contrary to many of 
 those herein stated, but when a constitutional provision is 
 fairly susceptible of two interpretations — one which will 
 overthrow the will of the majority as ascertained at a gen- 
 eral election, will cast discredit upon amendments that have 
 been long acted upon as part of the constitution, and will 
 convict legislature after legislature of a disregard for the 
 provisions of the constitution; and one which will produce 
 the contrary result — our duty is plain. 
 
 "Let judgment be entered in favor of the petitioner, in 
 accordance with the prayer of the petition." 
 
 THE DISSENTING OPINION IN THE JOHNSON CASE 
 
 In the case of The People ex rel. The Attorney Gen- 
 eral vs. Johnson (34 Colo., page 143), Justice Maxwell 
 delivered the opinion of the court en banc. Justice Steele 
 filed a dissenting opinion, in which Justice Gunter con- 
 curred. 
 
 Justice Steele said : 
 
 "Whether article 20 of the constitution of Colorado 
 does or does not confer upon the people of the city and 
 county of Denver the power to provide by charter for an 
 additional county judge within the city and county is a
 
 246 ROBERT WILBUR STEELE 
 
 fairly debatable question, and depends upon an interpreta- 
 tion of the article itself with a view to determining its true 
 intent and purpose. This the court has not attempted ; but 
 it has found in the general propositions announced in the 
 Sours case to the effect that there must be, within every 
 political subdivision of the state, some agency for perform- 
 ing the governmental duties of the state in accordance with 
 the general laws of the state, satisfactory authority for 
 declaring it to be 'stare decisis,' not only that there cannot 
 be two county judges within the city and county of Denver, 
 but that the plan of joint city and county government, by a 
 single set of officers, as provided for by the article, must be 
 overthrown and held for naught, and a double set of offi- 
 cers — city officers and county officers — installed and main- 
 tained in a single body politic and corporate known as the 
 city and county of Denver. I shall, therefore, shorten the 
 discussion by simply contending that there is nothing either 
 in the Sours case, or in any other case, for that matter, to 
 justify the conclusion of the court that the people of the 
 city and county of Denver had no authority to legislate in 
 any particular with respect to the offices of sheriff, treasurer, 
 assessor, clerk and recorder, justice of the peace or constable, 
 or dispense with county commissioners. I believe that they 
 have just such authority as was conferred upon them by 
 article 20 — conferred expressly or by necessary implication 
 — and none other. 
 
 "In the Sours case it was said, arguendo, that it would 
 be subversive of state government to give to the people of 
 the city and county of Denver the power to adopt aivy 
 measure, in the broad sense contended for by counsel, and 
 therefore the words in section 5, 'or to adopt any measure 
 as herein provided,' were construed, as limited by the con- 
 text, not to authorize the charter convention to propose 
 measures changing governmental acts and duties ; and it
 
 THE DECISIONS IN THE RUSH AMENDMENT CASES 247 
 
 was held that such duties were intended to remain under 
 the control of the legislature and of the general laws. There 
 is nothing in the Sours case holding or intimating that these 
 governmental duties could not be performed by a single set 
 of officers for the city and county, or that such officers could 
 not be elected at a single election ; and no such construction 
 was even contended for by counsel opposing the amendment. 
 The Sours case was regarded by everybody, until a contro- 
 versy arose as to the power of the people by charter to 
 increase the number of county judges, as settling a proposi- 
 tion that article 20 was legally adopted by the people as a 
 part of the constitution, and that it was feasible and legal 
 throughout when given the construction that in prescribing 
 the 'jurisdiction, term of office, duties and qualifications of 
 all such officers,' it did not mean that the charter convention 
 could so prescribe in cases where it would operate to hinder 
 the performance of the acts and duties required of county 
 officers to be done by the constitution or by the general law, 
 as far as applicable to the changed conditions of the new 
 municipality. 
 
 * * •* * * * * 
 
 "The charter convention following the decision in the 
 Sours case made no attempt to dispense with any constitu- 
 tional or statutory requirement as to the jurisdiction, duties 
 or qualifications of officers performing governmental duties ; 
 and so the question before the court really was whether that 
 convention was authorized to make a mere change in the 
 term of office and time of election of an officer performing 
 governmental duties. And it does not follow by any rule 
 of logic or of judicial construction that the exercise of a 
 power expressl)^ given that does not or cannot if reasonably 
 or sensibly exercised interfere in the slightest degree with 
 the governmental duties required to be performed within 
 this consolidated city and county implies the right to legis-
 
 248 ROBERT WILBUR STEELE 
 
 late upon any other matter whatever. The right to legis- 
 late is to be found in article 20, or does not exist; and it is 
 res adjudicata by the Sours case that article 20 is a part of 
 the constitution of Colorado and therefore is itself consti- 
 tutional. 
 
 "The main contention in the Sours case was, not that 
 the municipality created by article 20 was unrepublican, 
 but that the article embraced several subjects and amended 
 more articles of the constitution than was permitted by that 
 instrument. It was conceded by all that many of the arti- 
 cles of the constitution were modified, limited or abrogated 
 so far as the territory set apart as a new city and county 
 was concerned by article 20. 
 
 ******* 
 
 "And so I say that this court ought to have held that 
 the provisions of article 20 empowering the people of the 
 city and county to have for their new municipality a single 
 set of officers, to be elected or appointed at such times as 
 the charter might provide, was a valid provision not per- 
 versive of state government or unrepublican in form, and 
 that the suggestion that the people might select officers for 
 life was too remote and too speculative to be entitled to 
 serious consideration. 
 
 "In the Sours case it was said : 'Under the constitution 
 of the United States the state government must be preserved 
 throughout the entire state ; and it can be so preserved only 
 by having within every political subdivision of the state 
 such officers as may be necessary to perform the duties 
 assumed by the state government under general laws as they 
 now exist or as they may hereafter exist.' And it was held 
 that it was not contemplated by the article to relinquish 
 state government within the city and county of Denver 
 because the article expressly provided that the charter 
 adopted should designate the officers who should perform
 
 THE DECISIONS IN THE RUSH AMENDMENT CASES 249 
 
 the acts and duties of county ofFicers. Because the article 
 provided that the citizens of the city and county of Denver 
 should have exclusive power to adopt a new charter or to 
 adopt any measure it was contended that the constitution 
 and laws and the general assembly were displaced within 
 the city and county, and to answer this statement it was 
 said, in addition to what I have quoted, 'The amendment 
 is to be considered as a whole in view of its express purpose 
 of securing to the people of Denver absolute freedom from 
 legislative interference in matters of local concern.' The 
 writer of the opinion was not undertaking by hostile con- 
 struction to nullify the article 20 nor to argue away the 
 plain provisions of the article which do not admit of inter- 
 pretation or construction because they interpret themselves, 
 but he was undertaking to give the effect intended by the 
 people. The provisions of the article that the officers of 
 the city and county of Denver shall be such as by appoint- 
 ment or election may be provided for by charter can have 
 but one construction. But the language of section 5 of the 
 article providing that the citizens of Denver shall have the 
 exclusive power to amend their charter or to adopt a new 
 charter or to adopt any measure as therein provided was 
 claimed to extend to every subject and was authority for 
 the people of Denver to enact any law embracing any sub- 
 ject. And it was held that the authority of the people to leg- 
 islate through charter and otherwise extended only to mat- 
 ters of local concern ; that is, to matters affecting the new 
 municipality. That did not mean that the city and county 
 should not provide for its officers as expressly directed by 
 article 20; it did mean that the people of Denver were not 
 given power nor was it intended to grant them power to 
 legislate upon general subjects such as crimes, negotiable 
 instruments, civil procedure or any other subject not appli- 
 cable to local government except as directed and empowered 
 by article 20.
 
 250 ROBERT WILBUR STEELE 
 
 "The court says that it is held in the Sours case that 
 the people cannot: 
 
 " '1. Free any portion of the state from the operation 
 of the constitution. 
 
 " '2. Delegate to a charter convention the making of 
 constitutional amendments. 
 
 " '3. Give to a charter convention the power to pre- 
 scribe the jurisdiction and duties of public officers with 
 respect to state government as distinguished from the munic- 
 ipal or city government.' 
 
 "Although the language used is not that employed by 
 the writer of the opinion in the Sours case it is sufficiently 
 accurate for the purposes of this discussion. The writer 
 did say in substance that which is attributed to him, but the 
 conclusions drawn from what he said are to be found neither 
 in the Sours case nor in any other case. The court says : 
 'Under the language used no one of the three things can be 
 done by the people, and it follows that no portion of any 
 of them can be done ; that no portion of the state can be 
 freed from any portion of the constitution.' 
 
 "It requires a reversal of the opinion in the Sours case 
 to reach the conclusion that no portion of the state can, by 
 constitutional amendment, be freed from any provision of 
 the constitution. For it was held in positive language in 
 that case not only that the people could, but that they had 
 freed Denver from several provisions of the constitution 
 by making article 20 a part of their constitution. But, 
 because it is stated in the opinion in the Sours case that it 
 was the express purpose of article 20 to secure to Denver 
 freedom from legislative interference in matters of local 
 concern, it is asserted that, 'If the majority of the court in 
 the Sours case had been of the opinion that article 20 had 
 for its purpose the securing to the people of Denver abso- 
 lute freedom from legislative interference in all matters
 
 THE DECISIONS IN THE RUSH AMENDMENT CASES 25I 
 
 relating to county and state governmental offices, officers 
 and functions, the inevitable conclusion would have fol- 
 lowed that the amendment would have been held subversive 
 of a republican form of government and repugnant to the 
 constitution of the United States.' The court then proceeds 
 to show that the provisions of the charter are in conflict 
 with article 6 of the constitution. It was held in positive 
 terms in the Sours case that article 20 did amend, limit, 
 repeal or abrogate very many of the articles of the constitu- 
 tion, but that such changes were incidental merely and did 
 not render article 20 invalid; that article 20 created a new 
 sort of municipality having the combined powers of city 
 and county governments ; that the powers of city and county 
 municipalities being essentially different, in investing this 
 new municipality with the powers of both, it became neces- 
 sary to modify the provisions of the constitution relative to 
 municipal affairs by providing new ones applicable to such 
 combined government. 'But,' it was said, 'this is not an 
 amendment of those provisions such as in our judgment was 
 in contemplation by the framers of the constitution, because 
 the constitutional provisions that are abrogated as to the city 
 and county of Denver remain in force generally through- 
 out the state.' And when the court holds that the charter 
 provision relative to county judges is invalid because it 
 violates article 6 of the constitution and holds that other 
 provisions of the constitution are violated when the charter 
 provided for the terms and qualifications of other county 
 officers, it ignores the provisions of article 20, overlooks the 
 fundamental rule in the construction of constitutions and 
 statutes that a special provision controls the general one and 
 that both may stand ; misconstrues the decision in the Sours 
 case which holds that article 20 amended and modified very 
 many of the articles of the constitution by making special 
 provisions for the government of Denver ; and bases its
 
 252 ROBERT WILBUR STEELE 
 
 decision upon the doctrine the direct opposite of that main- 
 tained in the Sours case. For when the people of the state 
 granted to Denver by article 20 power to select public offi- 
 cers, fix their salaries, designate a time for their election, 
 although they relinquished a power theretofore retained by 
 them or delegated to the legislature, they but granted to 
 Denver power to legislate in matters of local concern; and 
 when the people required that the charter of the city and 
 county should designate the officers who should respectively 
 perform the acts and duties required of county officers to be 
 done by the constitution or by general law as far as appli- 
 cable, they declared that they did not relinquish the right 
 to require the performance of government duties within the 
 territory of the city and county and they did not free Denver 
 from the constitution, because article 20 is a part of the 
 constitution, and every article of the constitution is applica- 
 ble to Denver unless article 20 otherwise provides. 
 
 "The people of the state created of the territory a 
 municipality with county and city powers. The boundaries 
 of the city and county were co-terminous, the territory 
 densely populated. Property within the territory was owned 
 by county and city and town governments and was by article 
 20 declared to be the property of the city and county. 
 Within the territory were several school districts. By the 
 article they were consolidated. No reason is apparent why 
 there should be two treasurers to handle funds raised by 
 taxation or why there should be two bodies having control 
 of the streets and alleys and bridges of the city and county 
 with power to keep them in repair ; or why there should be 
 two boards in control of city and county property, or why 
 there should be two attorneys, one to represent the city and 
 one the county; or why there should be two boards within 
 the territory to levy taxes, one to make a levy for city pur- 
 poses and one for county purposes. The people in their
 
 Memorial Window, Supreme Court Room, 
 Capitol Building
 
 THE DECISIONS IN THE RUSH AMENDMENT CASES 253 
 
 sovereign capacity said there should be one set of officers, 
 and this economical scheme of government should have 
 been upheld and not overthrown. 
 
 * ****** 
 
 "To one who has lived there practically all his life the 
 assumption that the people of Denver would use the power 
 granted them by the constitution as a mere plaything is 
 preposterous. The question is, did the people of the state 
 grant power to the people of Denver to name their officers 
 for such terms and at such times as by a charter adopted 
 by the people should be determined? This is not answered 
 by the assertion that if the people have such power they 
 might misuse it. I know of no power that we have to 
 declare a constitutional power invalid because we deem it 
 unwise. But if the charter had provided for ten county 
 judges and had provided that they should hold their terms 
 for life, with the power of naming their successors — if the 
 constitution of the state authorized it — it should be upheld 
 because there is nothing in the federal constitution or in 
 the enabling act prohibiting such a provision ; and the char- 
 ter with such a provision in it is not unrepublican, because 
 the people of Denver have retained the power of changing 
 the provisions of the charter, and the people of the state 
 have retained the power of changing or annulling the 
 article. 
 
 "Finally, the charter ratified by the people was framed 
 by a body of eminent citizens chosen from the various call- 
 ings they represented because of their known ability, long 
 residence in the state, and familiarity with the needs of 
 Denver and the desires of her people. Several of the law- 
 yers in that body had appeared before this court in the 
 Sours case opposing the validity of article 20. The con- 
 struction given to the decision in that case by these gentle- 
 men and other members of the convention is shown by the
 
 254 ROBERT WILBUR STEELE 
 
 reference to the charter provisions. That they were not 
 undertaking to free Denver from the constitution or attempt- 
 ing to evade the performance of governmental duties within 
 the city and county of Denver or undertaking to make a 
 farce of the proceeding for the framing of the charter is 
 evidenced by section 156, which is as follows: 
 
 ******* 
 "Wherever the question has been presented the courts 
 have given effect to the wishes of the people and sustained 
 the power to establish the form of government here provided 
 as not being in violation of the federal constitution and not 
 in excess of the powers of the people to so provide in their 
 organic law. And it is to be regretted that this court felt 
 in duty bound to undo the work of the charter convention 
 and to deny the people of this city and county the right to 
 provide for a simple and economical plan of government as 
 directed by the constitution."
 
 CHAPTER XIV 
 
 SOME DECISIONS IN MINOR CASES 
 
 Having been elected by the people in the general elec- 
 tion of November, 1900, Justice Steele entered upon the 
 duties of the Supreme Court on January 8, 1901, as suc- 
 cessor to Judge L. M. Goddard. Justice Goddard was a 
 Democrat and was in regular line for renomination and 
 re-election. The Supreme Court, however, had given a 
 decision a short time previously in the Morgan case, declar- 
 ing the unconstitutionality of a law passed by the Twelfth 
 general assembly establishing an eight-hour day for under- 
 ground mines, smelters and reduction works. This decision 
 was extremely unpopular in many parts of the state, and 
 this is given as one reason why the Democratic convention 
 of 1900, in arranging a fusion ticket, assigned the Supreme 
 Court nomination to the Silver Republicans, thereby avoid- 
 ing the dangerous dilemma of endorsing or disapproving 
 Judge Goddard's tacit approval of the Morgan decision. 
 Judge Goddard, it may be noted further, was one of the 
 two justices of the Supreme Court nominated by Governor 
 Peabody on January 7, 1905. 
 
 During the first term of court in Justice Steele's serv- 
 ice, his name was attached to four decisions which may 
 serve at least to illustrate the varied nature of the causes 
 with which he was called to deal. The first was a decision 
 in a proceeding for disbarment against an attorney, in which 
 the judge enforced the principle that in such cases it is not 
 sufficient for the accused to declare his innocence of the 
 charge made against him, but that he must also explain 
 and set forth the good faith of the transactions to which 
 the charges relate; however, when the explanation is insuf-
 
 256 ROBERT WILBUR STEELE 
 
 ficient, without being purposely evasive, the attorney will 
 be given an opportunity to vindicate himself. The decision 
 is the first recorded for the January term, 1901 (28 Colo., 
 page 223). The second was a mining case in which the 
 lower judgment was reversed for error. The third case was 
 a complicated matter of water rights, pleadings and tech- 
 nicalities, in which the judgment of the lower court was 
 affirmed. The fourth was a decision in a divorce case 
 involving some rather trenchant matters of morals as well 
 as of law, in the course of which the new justice took occa- 
 sion to say: "A married man who, for ten years of his 
 life, has indulged in the habit of drinking and coming 
 home at bedtime in a condition incident to the degree of 
 inebriety varying from the garrulous exhilaration of one 
 only partially intoxicated to the sullenness of a sot, cannot 
 expect his wife to show that affectionate regard for him 
 which is his due under other circumstances, and cannot 
 complain if she does not engage in conversation which she 
 knows will terminate in a quarrel," a statement full of prac- 
 tical common sense and reminiscent of the County Court. 
 
 In the next term (April, 1901) Justice Steele delivered 
 four opinions, three sustaining and one reversing judgments 
 of the lower courts. In the September term of the same 
 year the work was much heavier, his name being affixed to 
 fifteen cases, two at least of which were of more than ordi- 
 nary importance. In eight of these cases the judgments of 
 the lower courts were reversed, in two the inferior judg- 
 ments were sustained; in two cases appeals were dismissed-; 
 one case was remanded to the Court of Appeals ; in one case 
 a perpetual writ of prohibition was issued and the lower 
 court was directed to dismiss the case; in one case Justice 
 Steele recorded a dissent. 
 
 One of these cases was that of the City of Leadville 
 vs. Coronado Mining Co. (29 Colo., page 23). This case,
 
 SOME DECISIONS IN MINOR CASES 257 
 
 with that next following, Leadville vs. St. Louis Smelting 
 & Refining Co., involved the right of property in ore taken 
 from beneath the streets and alleys of the city. The deci- 
 sion of the District Court in both cases had been against 
 the city on account of the lack of certain documentary evi- 
 dence, and the Supreme Court reversed this decision on 
 account of error of the lower court in refusing to admit 
 other evidence in proof of the missing plat. The reversal, 
 therefore, was determined upon a legal point, but in his 
 decision Justice Steele declared the principle that in such 
 cases, while the fee of the city is qualified, base, or deter- 
 minable, by vacation, abandonment or disuse, the absolute 
 control and dominion over the streets is not impaired, nor 
 did the donor convey less than his entire estate by the dedi- 
 cation and conveyance of the streets and alleys; and the 
 interest which the abutting lot owners have is a mere possi- 
 bility that at some future time the streets will be abandoned, 
 in which event the fee will pass to them by operation of 
 law. The case attracted much attention throughout the 
 state, especially in the mining counties, and the decision 
 was generally approved as being a defense of the rights of 
 the people. In the concurring opinions of Justices Camp- 
 bell and Gabbert, they said: "We do not consider it 
 necessary or appropriate at this time to express our views 
 as to the legal propositions discussed by our associate fur- 
 ther than they are indicated in the reason given for con- 
 curring in the judgment of reversal." In later decisions, 
 however (37 Colo., page 235), Justice Goddard, in deliver- 
 ing the opinion of the court, disregarded Justice Steele's 
 earlier statement as obiter dictum, and declared that the 
 common law dedication in such cases was merely for the 
 use of the public, as an easement, and did not involve con- 
 veyance of the fee. To the later opinions no dissent was 
 recorded.
 
 258 ROBERT WILBUR STEELE 
 
 In the case of Rocky Mt. Oil Co. vs. Central National 
 Bank, upon the petition for a rehearing, are recorded for 
 the first time the afterward familiar words, "Mr. Justice 
 Steele dissents." No explanation of this variance is 
 recorded, but the majority opinion seems to turn upon the 
 statement: "It is obvious that to carry out the intent of 
 the legislature and at the same time harmonize the attach- 
 ment act with the law governing the creation of domestic 
 corporations, the word 'and' must be substituted for 'or,' 
 and the subdivision given the construction stated in the 
 main opinion." 
 
 The case which bears the headline The People vs. 
 District Court (29 Colo., page 182) is a complicated matter 
 involving the District Court of Pueblo County, the state 
 board of assessors, and certain taxpaying railroad, telegraph 
 and telephone companies, also the validity of a revenue law 
 passed in 1901. The original opinion was delivered by 
 Justice Steele, and its closing sentences afford a good illus- 
 tration of the fine courtesy which he extended toward those 
 with whom he had official dealings : "We are forced, there- 
 fore, to the conclusion that the judge of the District Court 
 had not jurisdiction of the subject-matter, namely, the 
 issuance of an injunction to prohibit the state board of 
 assessors from performing their duties, and that in granting 
 the temporary writ of injunction he exercised an unwar- 
 ranted interference with a board which is a part of the 
 executive branch of the government of this state ; and such 
 act, being beyond his jurisdiction, is null and void." The 
 respondent in the case was Hon. N. Walter Dixon, con- 
 cerning whom Justice Steele continues his decision : "The 
 respondent says he has no interest, direct or indirect, proxi- 
 mate or remote, in the litigation, nor has he any desire of 
 preference as to the outcome other than that justice be done 
 according to law ; and that in all his acts he has been
 
 SOME DECISIONS IN MINOR CASES 259 
 
 impelled solely by a desire to observe his oath of office and 
 perform his duties. This we should have known and 
 believed without his verification ; and, while our views are 
 radically different in this case, we trust we shall have 
 always, as we have now, great respect for the District Court 
 of Pueblo and for the judges thereof." Justice Gabbert 
 filed a concurrent opinion in the main proceeding. 
 
 In spite of the injunction issued by the District Court, 
 the state board of assessors went ahead with its work, and 
 upon original proceedings in contempt was summoned before 
 the Supreme Court. Justice Steele delivered an opinion 
 that, under the circumstances, the Supreme Court had no 
 power to deal with the acts of the state board. Justice 
 Gabbert decided that certain members of the board were 
 guilty of contempt and their acts void. In the absence of 
 Chief Justice Campbell the case was thus suspended. Upon 
 petition for rehearing on the question of jurisdiction. Justice 
 Gabbert delivered a lengthy opinion sustaining his views 
 as previously expressed, and Justice Campbell, upon his 
 return, concurred in Justice Gabbert's opinion, holding the 
 board members and attorney general guilty of contempt, 
 but imposing no penalty of fine or imprisonment. There- 
 upon, Justice Steele filed a dissenting opinion, concluding 
 as follows: "Those cases are not authority for this judg- 
 ment, for the reason that those cases give the party some- 
 thing that he was legally entitled to, while this judgment 
 gives the companies something they were not legally entitled 
 to, namely, freedom from assessment after the time the 
 statute required assessment to be made. The railroads 
 having no right to prevent the assessment, no advantage 
 was taken of them by the making of it ; and they were 
 entitled to no relief, legal or equitable. No authority was 
 cited by counsel supporting their right to this judgment, no 
 principle was announced which, in my opinion, was appli-
 
 260 ROBERT WILBUR STEELE 
 
 cable to this case ; and yet the court has rendered a judgment 
 which brings confusion to the affairs of state, basing it, as 
 it seems to me, upon no applicable principle, nor the author- 
 ity of any adjudicated case. I do not insist that appellate 
 courts should be controlled by the judgments and opinions 
 of other courts, nor that they should surrender their own 
 well considered opinions to the opinions of other persons ; 
 but I do insist that where the effect of the judgment is to 
 cause the community to suffer great loss, and where it dis- 
 turbs and disorders governmental affairs, the court should 
 not render such judgment except it be based upon the 
 authority of some adjudicated case or founded upon some 
 well recognized rule or principle of law," 
 
 Thus, within the first year of his presence in the 
 Supreme Court, Justice Steele came to a sharp variance 
 with his eminent colleagues, a variance that was the mani- 
 festation of a fundamental difference of legal temperament, 
 of intellectual process, and of theory of government; a 
 variance that was not diminished or reconciled by the pas- 
 sage of years, and that culminated in the decisions and the 
 dissenting opinions in the Moyer, the Patterson, the Tool, 
 the Sours and the Johnson cases. 
 
 The decision in the Ryan case (29 Colo., p. 410), to 
 which Justice Steele filed a dissenting opinion, turned upon 
 the omission of the word "not" in the instructions of the 
 judge of the lower court. Justice Steele said: "I cannot 
 consent to the judgment of reversal. A verdict in the sum 
 of $3,000 only was rendered against the defendant. The 
 testimony shows that the plaintiff's only means of support 
 was the labor of her son, who was killed, as the evidence 
 tended to show, through the gross negligence of the defend- 
 ant, and I am unwilling to consent to a reversal upon what 
 seems to me the merest technicality and Inadvertence. * * * 
 We think it is the duty of the appellate courts not to reverse
 
 SOME DECISIONS IN MINOR CASES 26l 
 
 a judgment upon a mere technical error when it is apparent 
 from the entire record that the error was merely inadvertent 
 and one which the court would have corrected instantly if 
 its attention had been called to it by counsel. It is the duty 
 of counsel not to permit the court to make an error of this 
 kind." 
 
 In the case of Union Gold Mining Co. vs. Crawford 
 (29 Colo., page 526), Justice Steele delivered the opinion 
 of the court, affirming judgment for $15,000 against the 
 mining company for the disabling injury of its employe, 
 and declaring : "Guided by these authorities, we can arrive 
 at no other conclusion than that the proximate and efficient 
 cause of the injury was the negligence of the defendant, and 
 that it should be held liable to the plaintiff for the damages 
 shown to have been sustained. It is urged that the verdict 
 is excessive. Counsel say that fifteen thousand dollars 
 loaned at eight per cent interest will yield the plaintiff an 
 income in excess of the amount he has ever earned or is able 
 to earn, without touching the principal. This without the 
 slightest physical or mental exertion. This company, by 
 its culpable and wanton negligence, has made a physical 
 wreck of its employee, and it would now enforce this cruel 
 rule against him by showing that the amount of the verdict 
 at interest will yield him more than he could earn if he were 
 in perfect physical condition. But if his damages were 
 measured by this unjust rule, the verdict is not excessive. 
 In the first place, he cannot, 'without making the slightest 
 mental or physical exertion,' cause his capital to yield eight 
 per cent interest. After the payment of expenses and taxes, 
 he will do well if he receives four per cent on his money, 
 but little more than half of the amount he could earn before 
 the injury. So that, eliminating entirely the question of 
 damages for the loss of his leg, the damages for the frac- 
 ture of his skull, the amount of the verdict, if placed at 
 interest, will return to him barely sufficient to live upon."
 
 262 ROBERT WILBUR STEELE 
 
 In the following case, City of Denver vs. Hubbard, 
 Justice Steele, declaring the decision of the court, reversed 
 the judgment against the city in a damage suit because the 
 judge had not instructed the jury that the plaintiff was 
 required to exercise increased care while walking upon a 
 defective sidewalk covered with ice and snow, when she had 
 lived for months in the building in front of which this 
 sidewalk was and she was familiar with its condition. 
 
 In the September term, 1902, Justice Steele delivered 
 the decision of the court in the important Clayton will case, 
 involving the foundation of the George W. Clayton College, 
 a home and school for orphan boys, in the city of Denver. 
 The decision established broad grounds for the maintenance 
 of public charities by individual bequests in Colorado, and 
 sustained the manifest purpose of the testator, saying : 
 "Here, then, is a public charity. Through it Mr. Clayton 
 seeks to bring the minds and hearts of poor orphans under 
 the refining influence of education. After making such 
 provision as he thought proper for the natural objects of 
 his bounty, he has selected, as deserving of his benevolence, 
 the poor white orphan boys of Denver and Colorado, and 
 has devoted the residue of his great fortune to the erection 
 and support of a permanent college for their free instruction 
 and maintenance, that they may become useful citizens and 
 honorable members of society. It is an indulgent, edifying 
 and worthy charity. It will lessen Denver's burdens of 
 government. To thousands of poor orphan boys it will be 
 a blessing forever, and it will be by them forever blest." 
 
 In this term Justice Steele's name is recorded in connec- 
 tion with sixteen cases. In eight the judgments of lower 
 courts were affirmed; in four the lower judgments were 
 reversed ; one was remanded ; one was dismissed on error ; 
 and in two Justice Steele filed dissenting opinions. One of 
 these concerned a small matter of an estray ; the other was
 
 SOME DECISIONS IN MINOR CASES 263 
 
 the case in which the legislature, in reapportioning the sena- 
 torial districts of the state, assigned sixteen senators for 
 re-election in a year when there were only fifteen vacancies. 
 The majority decision (Mills vs. Newell, 30 Colo., page 
 377) ^^^ t^^^ neither the secretary of state nor the Supreme 
 Court had authority to interfere in the matter, but that the 
 question could be determined only by the senate itself. 
 From this decision Justice Steele dissented in vigorous lan- 
 guage, saying : "I disagree with my associates in the dis- 
 posal of this case. * ''' * I deem it to be the duty of 
 the secretary of state, when the legislature has indicated 
 that no election shall be held in certain senatorial districts 
 for a certain year, to refuse to receive certificates of nomina- 
 tion from such districts, and the duty of this court to uphold 
 that official in thus executing the will of the legislature." 
 
 The case of Town of Manitou vs. International Trust 
 Co., with its correlated case of Manitou vs. Townsend et al., 
 as reported in 30 Colorado, page 467, involved the principal 
 issue whether certain tracts of land, including some of the 
 Manitou mineral springs, had been dedicated to public use 
 as a park. Justice Steele delivered the opinion in which the 
 judgment of the lower court was affirmed in favor of the 
 Manitou Mineral Water Company and against the town. 
 In discussing the alleged common-law dedication for park 
 purposes, Justice Steele said: "The plat of 1874 does not 
 purport to convey this property as a park. It is claimed, 
 however, that the property in controversy appears on the 
 plat like an oblong green leaf in the very center of the 
 town, and is completely segregated from other tracts of 
 ground by highways; that no number or designation of any 
 kind appears on the tract of ground ; that these facts show 
 an intention to dedicate as well as a dedication, and authori- 
 ties are cited which hold that, when places appear upon the 
 plat of a city or town without designation, such places are
 
 264 ROBERT WILBUR STEELE 
 
 to be regarded as for the use of the public. We cannot 
 agree with counsel that the plat itself is evidence of an 
 intention to dedicate. True, the shape of the lot is some- 
 what as counsel allege, but there are other portions of the 
 town shown to be of irregular shape. Upon the map of 
 1874 this portion is colored green ; so are very many other 
 portions of the plat. The lots are of various shapes and 
 dimensions, the blocks are not of uniform dimension or 
 shape, and from the plat itself, there being no express 
 designation of this place as a park, it cannot be determined 
 that it was intended as a park." It might require a personal 
 inspection of the scenic townsite of Manitou to appreciate 
 the full force of the argument, but its humor, delicate and 
 delicious as the fragrance of a mountain flower, cannot fail 
 to impress even the casual reader and to give a pleasure the 
 more intense because of its surprising presence in a volume 
 of Supreme Court decisions, from which it detracts nothing 
 of dignity or force. 
 
 In this case, too, there is an example of another of the 
 qualities that endeared Justice Steele to his associates upon 
 the bench, to the attorneys of the court and to the people. 
 Petition having been made for a rehearing. Justice Steele 
 denied the petition, saying: "In the opinion it was held 
 that municipal authorities cannot base their right to public 
 places upon the act of a proprietor of land in selling lots 
 by reference to a plat upon which such public places are 
 designated ; and that, until there has been an acceptance, 
 the act of the proprietor in selling lots amounts to a mere 
 offer to dedicate and can be withdrawn. In the petition for 
 rehearing, it is stated that this holding is contrary to the 
 doctrine announced. * * * The position of counsel is, 
 in the main, correct, and we withdraw the statement." 
 Justice Steele had that quality of mind and character which 
 makes it a part of honesty to admit mistakes, and he did so
 
 SOME DECISIONS IN MINOR CASES 265 
 
 as frankly and as fearlessly as he maintained his opinions 
 when he believed them to be right. 
 
 On January 12, 1904, Chief Justice Campbell's term 
 of office expired, he succeeded himself as justice of the court 
 by re-election, and Justice Gabbert became chief justice by 
 seniority. 
 
 Reference has already been made (chapter four) to 
 Justice Steele's interest in the laws protecting animals from 
 inhumane treatment, and further interest in this subject is 
 shown in the case of Bland vs. The People (32 Colo., page 
 319), in which the principal point at issue was the constitu- 
 tionality of a law recently passed by the legislature which 
 prohibited the docking of horses' tails. In rendering the 
 decision, Justice Steele said : "The docking of a horse's 
 tail is cruelty, not only because of the torture inflicted by 
 the operation, but because, by depriving the horse of the 
 use of his tail, he is deprived of the use of a weapon sup- 
 plied him by nature for his protection from the myriad of 
 winged pests that infest the land. * -'•' * The fore- 
 going authorities establish: 1. That it is within the police 
 power of the state to prohibit cruelty to animals, because 
 such prohibition is a protection to the animals and tends to 
 conserve the public morals. 2. That in the exercise of the 
 power the legislature may adopt such reasonable means as 
 is necessary to accomplish the purposes of the statute. 
 3. That to the legislature is confided a large discretion in 
 declaring the public policy, and that, unless the legislation 
 is clearly and palpably in violation of the fundamental law, 
 it will be sustained. 4. That all property is held under the 
 implied obligation that the owner's use of it shall not be 
 injurious to the public. '■' * '•= We regard the law as 
 just, wise and humane, and withal a lawful exercise of the 
 power confided to the legislature, because it conserves the 
 public morals and because it punishes the cruel and sense-
 
 266 ROBERT WILBUR STEELE 
 
 less treatment by man of his best and most constant friend." 
 B)' an amendment to the constitution adopted at the 
 general election, November 8, 1904, the number of judges 
 of the Supreme Court was increased to seVen, and the Court 
 of Appeals was abolished, to take effect on the first Wednes- 
 day of April, 1905. Judges Julius C. Gunter and John H. 
 Maxwell of the Court of Appeals became, by the amend- 
 ment, justices of the Supreme Court, and Judges Luther M. 
 Goddard and George W. Bailey were appointed by Gov- 
 ernor Peabody to be justices of the Supreme Court. 
 
 In the September term, 1905, an important case came 
 before the court, involving the general powers of city gov- 
 ernments under article 20 of the constitution, and more 
 particularly the power of the city and county of Denver, 
 to erect an auditorium, to purchase a site therefor and to 
 issue bonds to provide funds for such a building and site. 
 The case is recorded as Denver vs. Hallet (34 Colo., page 
 393). Justice Steele delivered the opinion of the court, 
 saying, in part: "The judgment of the District Court was 
 right. The power to direct the issuance of bonds for the 
 erection of an auditorium was granted by the people when 
 they voted affirmatively upon the question submitted ; but 
 the people granted the power to issue bonds 'bearing interest 
 at the rate of four per cent per annum, maturing in not less 
 than fifteen nor more than thirty years, the principal to be 
 payable in equal annual instalments commencing the next 
 year following the issuance of said bonds,' not bonds 'pay- 
 able at the option of the city and county fifteen years after 
 date.' ■■'• * '•' In holding, as we do, that the bonds pro- 
 posed are not the bonds directed by the people to be issued, 
 we have determined the case, and might well refuse to 
 decide the other questions involved. But inasmuch as the 
 power of the city to erect a public auditorium is challenged 
 and the question is of public moment and concern, and as
 
 SOME DECISIONS IN MINOR CASES 267 
 
 much time and expense will be saved by a determination of 
 this, the main question, we are constrained by the force of 
 the public interests to give our opinion upon this subject. 
 ■•fi * * y/^ agree with counsel that no power to build an 
 auditorium is expressly granted by the twentieth article ; 
 that such power is not incident to the powers expressly con- 
 ferred, nor can it be necessarily or fairly implied therefrom ; 
 and that an auditorium is not indispensable to the objects 
 and purposes of the municipality as declared in the twen- 
 tieth article. But we do not agree with him that the stinted 
 grant of power contained in section 1 and other parts of the 
 article is the only power possessed by Denver. It seems 
 very clear that the statement contained in the hrst section 
 was not intended to be an enumeration of powers conferred, 
 but simply the expression of a few of the more prominent 
 powers which municipal corporations are frequently granted. 
 The purpose of the twentieth article was to grant home rule 
 to Denver and the other municipalities of the state, and it 
 was intended to enlarge the powers beyond those usually 
 granted by the legislature ; and so it was declared in the 
 article that, until the adoption of a new charter by the 
 people, the charter as it then existed should be the charter 
 of the municipality, and, further, that the people of Denver 
 shall always have the exclusive power of making, altering, 
 revising or amending their charter; and, further, that the 
 charter, when adopted by the people, should be the organic 
 law of the municipality and should supersede all other 
 charters. It was intended to confer not only the powers 
 specially mentioned, but to bestow upon the people of 
 Denver every power possessed by the legislature in the 
 making of a charter for Denver. * * * The general 
 purpose of all municipal corporations is to promote the 
 general welfare and happiness of the people ; and provisions 
 are generally made for the suppression of vice and immoral-
 
 268 ROBERT WILBUR STEELE 
 
 ity, and the advancement of public health and good order, 
 and the promotion of trade and industry. For many years 
 Denver has had power under her charter to appropriate 
 funds for the entertainment of visitors and for the expenses 
 of funerals, power to take an enumeration of the inhabit- 
 ants, to foster and encourage manufactories, for laying out 
 and ornamenting grounds for a cemetery and for the sale 
 of lots therein, and to support or own a public library. Not 
 one of these powers can be regarded as indispensable to a 
 municipality. Municipalities are permitted to exercise them 
 because they tend to the advancement, the culture, the con- 
 venience and the general welfare of the public. It is not a 
 valid objection to the exercise of such powers that one class 
 of the inhabitants would receive more benefit than another. 
 The test is whether the power, if exercised, will promote 
 the general objects and purposes of the municipality, and 
 of this the legislature is the judge in the first instance; and, 
 unless it clearly appears that some constitutional provision 
 has been infringed, the law must be upheld." Chief Justice 
 Gabbert, Justice Campbell and Justice Maxwell dissented 
 from that part of the opinion which held that the city and 
 county of Denver have the power to direct the erection of a 
 public auditorium at public expense, it being their opinion 
 that the purpose mentioned was not a "corporate purpose." 
 Justice Steele always maintained a lively and, so far 
 as was consistent with his position, an active interest in the 
 welfare and the development of Denver. No decision of 
 his career gave him more pleasure than that in the Audi- 
 torium case, and he very properly felt that in maintaining 
 the doctrine of a full grant of power in article 20 he had 
 not only confirmed the right of the city to its magnificent 
 convention hall, but he had also opened the way for other 
 benefits of a similar nature to all the cities of the state. 
 When the corner stone of the great building was prepared,
 
 SOME DECISIONS IN MINOR CASES 269 
 
 Justice Steele was asked to select a suitable inscription, and 
 he chose for this purpose the following words : "Let all the 
 nations be gathered together — let the people be assembled," 
 which remain as the declaration of its primary purpose. 
 
 On January, 1907, Justice Steele became chief justice 
 by right of seniority, Justice Gabbert's term of office 
 expiring. Justice Gabbert was continued as a member of 
 the court by re-election, and Justice Charles F. Caswell was 
 elected as the successor of Justice Gunter. 
 
 Justice Caswell died November 21, 1907, and Hon. 
 Joseph C. Helm was appointed as justice in his place. On 
 January 11, 1909, the terms of Justices Helm, Goddard, 
 Maxwell and George W. Bailey expired, and they were 
 succeeded by Justices Morton S. Bailey, William A. Hill, 
 George W. Musser and S. Harrison White, who had been 
 elected in the general election of the preceding November. 
 
 The cases from which quotations have been made are 
 considered as exemplary or characteristic, and no attempt 
 has been made to review in detail the great volume of work 
 accomplished by Justice Steele during his term of service 
 in the Supreme Court. The great majority of cases in which 
 he delivered the opinion of the court or recorded his con- 
 currence or dissent were matters of the review of legal 
 procedure in the lower courts, and, outside of the evidence 
 they give of his painstaking attention to the onerous and in 
 many cases tedious duties laid upon him, they afford little 
 of general interest. In many cases, however, matters of 
 public interest were discussed, the rights of the people were 
 m.aintained, and the authority of the court was employed in 
 the interest of justice outside of the mere routine of revision 
 and supervision of the lower courts. 
 
 In the case of Hartman vs. Bailey (36 Colo., page 
 146), the point at issue was the right of fishing in streams 
 stocked at the public expense, as dissociated from the ques-
 
 270 ROBERT WILBUR STEELE 
 
 tion of trespass, and in this case Justice Steele concurred in 
 the dissenting opinion of Justice Bailey, which strongly 
 upheld the privileges of the fishermen. The case of People 
 vs. District Court (37 Colo., 464) was the one in which 
 the Supreme Court refused to recognize a rival authority 
 in the issuing of "high prerogative writs," and granted a 
 writ of prohibition against such exercise of power by Judge 
 Johnson of the District Court of Denver. Justice Steele's 
 dissent in this case was made orally, and was notable for 
 the fact that he stated that the majority opinion was not 
 submitted to him, and to Justice Gunter, who concurred 
 in the dissent, until the preceding Friday, so that they had 
 had no time to prepare an extended dissent. 
 
 The case of C. S. & I. Ry. Co. vs. Nichols (41 Colo., 
 page 272) involved, in effect, the reversal of a decision of 
 one of the earliest Colorado cases, which had been widely 
 condemned not only as unjust but as inhumane by legal 
 authorities, but which had still remained as the Colorado 
 authority, although it had been somewhat modified by a 
 decision given just previous to Justice Steele's arrival in 
 the court. The decision in this case has been commented 
 upon as an instance of the manner in which Justice Steele 
 was able to maintain a firm opinion and stand, while 
 observing the highest measure of courtesy and consideration 
 for those with whom he disagreed. Among a multitude of 
 cases involving something more than mere matters of rou- 
 tine may be mentioned the following: Denver vs. Kennedy 
 (33 Colo., 93) ; Pueblo Co. vs. Strait (36 Colo., 138) ; City 
 La Junta vs. Heath (38 Colo., 372) ; Lehman vs. Pettin- 
 gell (39 Colo., 258) ; People vs. Rice (40 Colo., 508) ; 
 Saleen vs. People (41 Colo., 318) ; Colo. Springs vs. Colo. 
 City (42 Colo., 75) ; M. & P. P. Ry. vs. Harris (45 Colo., 
 186), and Roberts vs. C. S. & I. Co. (45 Colo., 189). The 
 Harris case was especially interesting because it involved a
 
 SOME DECISIONS IN MINOR CASES 27I 
 
 recognition of the value of growing trees upon the mountain 
 side computed upon another basis than their salable worth 
 as lumber. 
 
 It must not be supposed from anything that has been 
 hitherto said or omitted, or from the emphasis given to 
 Justice Steele's dissenting opinions, that he was an inhar- 
 monious member of the court. The reverse of that condi- 
 tion was true. Justice Steele was a diligent student and a 
 hard worker. He assumed a full share of the work of the 
 court and never shirked or slighted the duty that was laid 
 upon him. Except where matters of principle were con- 
 cerned in which his opinions were at variance with those 
 of his colleagues, he was a delightful and harmonious 
 co-worker. He was free from eccentricities. His dissents 
 represented careful judgments upon important points, and 
 they were never merely disputatious or punctilious. He 
 had a high sense of the dignity of the court, and the respect 
 which he maintained at all times in his own words and 
 conduct he extended to his colleagues, giving them the 
 fullest possible measure of credit for sincerity of motive 
 and honesty of purpose. It was this attitude, together with 
 the sweetness and gentleness of his nature, which gave the 
 explanation of the extraordinary fact that amid all the 
 storm of bitter controversies, which drove men to acts and 
 accusations of stormiest passion. Justice Steele made no 
 enemies. Without fear and without reproach, "with malice 
 toward none ; with charity toward all ; with firmness in the 
 right as God gave" him to see the right ; he walked openly 
 in the sight of men. His host of friends watched with ever- 
 increasing admiration the achievements of his expanding 
 career; his opponents gave an unstinted measure of respect 
 and personal liking; and the people, whose cause he never 
 failed to maintain in reasonableness and justice, accorded 
 to him the fullest measure of confidence, affection and 
 esteem.
 
 CHAPTER XV 
 
 THE COURT OF LAST RESORT 
 
 Robert Steele came to the office of district attorney 
 by the popular will and not by his own seeking. Before 
 his term as district attorney had expired, he was chosen by 
 the commissioners to the position of county judge. This 
 choice was subsequently ratified by the people in a general 
 election, and before their commission had lapsed he was 
 again called to a higher place, the highest in the judicial 
 system of the state. The original term was for nine years, 
 but the constitutional amendment adopted in 1904 extended 
 this term for one year, or until January, 1911. Once again, 
 before his term of office had expired, he was transferred, 
 by a higher than earthly power, to whatever of activity a:nd 
 opportunity the future holds for that man whose mortal 
 course seems guided and controlled by an eternal purpose 
 and whose life is spent in harmony with an eternal law. 
 
 Had Robert Steele continued to walk the paths of an 
 earthjy career he would have been assuredly re-elected to 
 the Supreme Court. The nomination had already been 
 given to him by acclamation by his party, without any 
 solicitation or effort on his part. The independent vote of 
 the state, which had grown rapidly to be more and more 
 the controlling factor in general elections, was very largely 
 in his favor. Even those voters who would have preferred 
 another candidate for partisan or other reasons had no 
 enmity toward Judge Steele. His re-election was generally 
 conceded. 
 
 On the night of September 21, 1910, after a busy day, 
 at his home in Denver, he was stricken with an attack of 
 an apoplectic nature, and three weeks later, October 12,
 
 THE COURT OF LAST RESORT 273 
 
 death came to him, after an illness through which the city 
 and the state watched and hoped for his recovery. Even 
 in his last hours his thoughts were with the people, for it is 
 told that in one of the few periods of consciousness, receiv- 
 ing a drink of water from an attendant, he expressed the 
 wish that there might be more cooling fountains along the 
 highways, for the benefit of all those who are thirsty. 
 
 Not in the fullness of years when mental and physical 
 powers had declined, but in the prime of wisdom and 
 strength the great change came to him, and an Infinite 
 Wisdom knows where and why that intelligence and activity 
 were transferred to another sphere. Yet the work that he 
 did was well done, and though he fought, in the minority, 
 a losing fight for the great cause he cherished, he went from 
 the field victorious, and through his efforts largely his cause 
 was once more triumphant and his fight was won. That 
 cause was the cause of human rights and popular self- 
 government, the cause for which Liberty's exiles crossed the 
 seas, for which Washington fought, for which the immortal 
 company of the fathers of the republic, Franklin and Adams 
 and Jefferson and many more, offered their all upon their 
 country's altar; the cause for which Liberty and Patriotism 
 still keep open the rolls of glorious fame. 
 
 For the fundamental principle of American free gov- 
 ernment is this : that in the long run better average results 
 can be obtained by the free rule of the majority than by 
 any other system that ever has been or can be devised by 
 the wit of man. Every departure from the American prin- 
 ciple tends toward minority rule — autocracy, aristocracy, 
 theocracy, or, basest of all, government by a political 
 machine, or any one of the innumerable titles beneath which 
 it is sought to disguise opposition, in theory or in practice, 
 to that rule of the people, by the people and for the people, 
 to which Lincoln and many heroic patriots of a later day
 
 274 ROBERT WILBUR STEELE 
 
 have devoted their lives. Not that the majority of the 
 people is always wise, or always right, or that the majority 
 does not make mistakes; but that the people are, and in the 
 nature of things must be, the source of sovereign power and 
 the court of last resort by whom all things and all men are 
 to be judged. 
 
 Robert Steele was one of those clear-sighted statesmen 
 who have seen in the declaration that "all men are created 
 free and equal," not the statement of a fact in biology or 
 social science, but a fundamental principle of political 
 philosophy, a living truth by which free government is 
 established. He saw clearly the difference between that 
 party organization which is maintained for the furtherance 
 of political principles and governmental policies through 
 the people's will, and that partisan machine which exists 
 for the purpose of defeating and obstructing the will of the 
 people and of controlling government against the public 
 interest and for the benefit of ambitious or mercenary selfish- 
 ness. 
 
 It has been said, and many times repeated : 
 
 "Truth crushed to earth will rise again, 
 
 The eternal years of God are hers; 
 But Error, wounded, writhes with pain 
 And dies among his worshippers," 
 
 but it would be hard to find at any other time or place an 
 instance where victory came so soon after an apparently 
 losing fight as in the case of Robert Steele. Even while the 
 decisions from which he dissented were being written into 
 the recorded law of the state, the people were gathering to 
 the support of the standards he had raised. His clear, 
 authoritative and unanswerable presentation of the primi- 
 tive principles of American free government was the great 
 rallying cry that brought the invincible hosts of democracy 
 to his aid and swept to oblivion the structure that had been
 
 THE COURT OF LAST RESORT 275 
 
 raised against his protest. Within two years from the tune 
 when his presence in the Supreme Court ceased, the rights 
 he defended and the principles he maintained were re-estab- 
 lished and confirmed, even though in some of these cases 
 the majority decision yet stands as the highest judicial 
 authority. 
 
 When Justice Gabbert declared in the Moyer case, in 
 effect, that the writ of habeas corpus was a delusion and a 
 fraud ; that, though the chief of the military power might 
 have no authority to suspend the writ, he had the power, 
 incident to his authorization to suppress insurrection, to dis- 
 regard the writ ; and that the military power in the field is 
 merely a manifestation of the supreme civil authority, thus 
 satisfying the constitutional requirement of the subordina- 
 tion of the military to the civil power — is it any wonder that 
 the people should feel the need of new defenses for their 
 liberties, new instrumentalities by which their sovereign 
 control of public power should be made effective*? 
 
 When keen-witted corporation attorneys, fighting to 
 maintain the hold upon government that had been gained 
 by the interests they served, had won from the Supreme 
 Court its approval of the high prerogative writs of the 
 king's bench, which were the justly hated instruments of 
 English tyranny, is it any wonder that the people them- 
 selves should have hurled back their answer in a declaration 
 of their attributes of sovereignty, the High Prerogative 
 Writs of the People : the Initiative, the Referendum and 
 the Recall*? 
 
 Justice Gunter, with his colleagues approving, except 
 Justice Steele, punished Senator Patterson for constructive 
 contempt of court, although Senator Patterson alleged, not 
 in newspaper publication, but in open court and in written 
 plea, the existence of a huge conspiracy, involving the legis- 
 lature, the executive and the Supreme Court itself, to usurp
 
 276 ROBERT WILBUR STEELE 
 
 and to control the powers of government for corporate 
 advantage, and he offered thereof to make his proof. And 
 the very judges whom he accused as instruments of that 
 conspiracy refused his proffer of evidence and joined in 
 inflicting a penalty for the constructive contempt of news- 
 paper publication. Is it any wonder that the people of the 
 state at the earliest possible opportunity wrote into constitu- 
 tional law not merely the recall of judges, but the recall of 
 judicial decisions as well? 
 
 Reference has already been made to the manner in 
 which the judges who came from the people in the elections 
 of 1908 and 1910 reversed the decision in the Johnson case 
 and restored the principles that Justice Steele had laid down 
 in the Sours case. That later decision, delivered by Justice 
 M. S. Bailey, may be found reported in the case of The 
 People ex rel. Attorney General vs. Cassiday et al. (50 
 Colo., page 503)5 and it is summarized in its essential points 
 as follows : 
 
 1. The people of the state have plenary power to 
 provide, by constitutional amendment, such methods of gov- 
 ernment for the state, or for any portion of the state, as 
 may please them so long as there is no violation of the 
 federal compact. To confer upon the people of a particular 
 community authority to designate the agencies by which 
 governmental duties therein shall be discharged is not 
 obnoxious to any provision of the enabling act or of the 
 federal constitution. 
 
 2. Where any provision of the constitution is framed 
 in doubtful or uncertain language it is the province of the 
 courts to construe it ; but it is not within the province of the 
 court to substitute othei words for those used In the consti- 
 tution, or place any forced construction thereon, or eliminate 
 words found therein.
 
 THE COURT OF LAST RESORT 277 
 
 3. An amendment of the constitution is to be consid- 
 ered, treated and construed as if it had been written therein 
 in the first instance. 
 
 4. Article 20 is, in all its provisions and for all pur- 
 poses, a part of the constitution according to its clear import. 
 Neither section 2 nor any other provision of that article has 
 the effect, or assumes to set aside governmental duties and 
 functions as to state and county affairs, within the territory 
 named, and its whole effect is to provide that the people of 
 the city and county of Denver shall, through their charter, 
 designate the agencies which are to discharge those duties 
 and functions which elsewhere in the state pertain to county 
 officers, all of which functions and duties are preserved 
 intact. This does not create a government unrepublican in 
 form or involve any inhibition of the federal constitution, 
 and was clearly one of the powers reserved to the people of 
 the state upon entering into the federal compact. The doc- 
 trine of the majority opinion in The People ex rel. vs. John- 
 son (34 Colo., 143) rejected and that case overruled. 
 
 5. Since the adoption of this article and the formation 
 of the municipal corporation of the city and county of 
 Denver, there has never been within the limits thereof a 
 county office or officer, as such, except as this proposition 
 may have been affected by the decision of this court in 
 Johnson's case. 
 
 Justice Bailey delivered the decision of the court en 
 banc. Justices Campbell and Gabbert filing dissenting opin- 
 ions and Justice Hill presenting a special concurring 
 opinion, in which he said : "I am perfectly content to rest 
 my ultimate conclusions upon the dissenting opinions by 
 the late Chief Justice Steele and Mr. Justice Gunter in the 
 former cases, and the majority opinion in this case." 
 
 The decision in the Tool case, from which Justice 
 Steele dissented orally, because "it is unwarranted, without
 
 278 ROBERT WILBUR STEELE 
 
 precedent and directly contrary to law," quickly passed into 
 the domain of legal futilities. The Australian ballot law 
 of 1889 was the first blow against machine politics, but it 
 remained for the headless ballot law, adopted by the people 
 in 1912, to destroy the main source of fraud and corruption 
 in general elections. The direct primary law of 1911, sound 
 in principle and wofully defective in detail, relaxed and 
 almost released the control of party nominations by the 
 machines, and went far toward making the party platform a 
 declaration of genuine principles and sincere purposes of 
 administration. 
 
 Out of the decision in the Sours case, as restored by 
 the decision in the Cassiday case, has grown the structure 
 of free self-government for cities, by which the cities them- 
 selves are delivered from corruption, misgovernment and 
 usurpation, from Tammany and "Big Mitt," on one side, 
 from franchise grabbers and boodlers, vote buyers and vote 
 sellers, bribe givers and bribe takers, on the other ; and by 
 which the state has been saved from the contagion and the 
 corruption of the machine politics of the cities. 
 
 Thus the great principles for which Justice Steele con- 
 tended — the right of personal liberty, the right of free 
 speech and a free press, the right of free elections unim- 
 paired by the interferences of political machines, the right 
 of the people to free self-government according to their own 
 will, and to alter, amend and abolish their constitution 
 in order to promote their welfare and happiness — were 
 reaffirmed and re-established by the sovereign power of the 
 people themselves. 
 
 It was in the Sours case that Justice Steele wrote into 
 the decision what was not merely a statement of funda- 
 mental law, but was also his appeal to the court of last 
 resort, to the will of the people; for he based his decision
 
 THE COURT OF LAST RESORT 279 
 
 in that case upon the fundamental provision of the bill of 
 rights: "That all political power is vested in and derived 
 from the people ; that all government, of right, originates 
 from the people, is founded upon their will only and is 
 instituted solely for the good of the whole ; and that the 
 people of the state have the sole and exclusive right of 
 governing themselves, as a free, sovereign and independent 
 state ; and to alter and abolish their constitution and form 
 of government whenever they may deem it necessary to their 
 safety and happiness, provided such change be not repug- 
 nant to the constitution of the United States." 
 
 To Robert Steele those words were the embodiment of 
 living truth, through which men should be free. They 
 were not an empty form, a trick to deceive the multitude ; 
 they were the voice of the spirit of liberty, the vital essence 
 of American freedom. By virtue of the new and extraor- 
 dinary instruments of democracy, the basic principles of the 
 Magna Charta, of the Declaration of Independence, of the 
 constitutions of the state and the nation have been strength- 
 ened, delivered and restored. Old evils have been destroyed ; 
 imminent dangers have been avoided; flagrant abuses have 
 been corrected ; usurpers have been ousted ; rights have been 
 regained. With those weapons of democracy firmly in hand, 
 the people's fight seems won, but the eternal warfare con- 
 tinues. Out of the depths of ignorance and depravity the 
 forces of anarchy still rise for the destruction of law and 
 order, for waste and for pillage. From selfishness, from 
 ambition and from greed is ever renewed the impulse to 
 debase the charter of the people's rights to a counterfeit and 
 a sham, and under the guise of a free constitution to make 
 of government something else than the rule of the people. 
 The myriad hosts of those who desire, for whatever reason, 
 honest or dishonest, some other government than the Ameri-
 
 280 ROBERT WILBUR STEELE 
 
 can government, of their generation there is no end; yet 
 hope reigns supreme, 
 
 "For Freedom's battle, oft begun, 
 Bequeathed from bleeding sire to son. 
 Though baffled oft, is ever won." 
 
 Whenever the skies are most serene, and the people 
 most happy and secure, as well as in those darker moments 
 when the storm clouds gather, as gather they must again, 
 when the tempests of passion and of regeneration shake 
 the foundations of our civic temples, the people of 
 Colorado, and many beyond her borders, may gather inspira- 
 tion, courage and faith unconquerable from the life, the 
 labors and the triumph of Robert Wilbur Steele, Defender 
 of Liberty.
 
 CHAPTER XVI 
 
 IN THE MEASURE OF APPRECIATION 
 
 Robert Steele was not a man who loved to walk the 
 upper trails of life unaccompanied. A genial companion, 
 a true friend and lover of the people, the work of the 
 Supreme Court involved one element that was alien to his 
 nature and distasteful to his desires. He was extremely 
 scrupulous in maintaining the dignity of his position, and 
 he defended the strict honor of the impartial judge even 
 at the sacrifice of some friendships that under other condi- 
 tions would have been most delightful to him. He felt 
 that he had no right to be a political partisan in anything 
 that involved his official authority, and that he had no 
 right to risk any personal partiality or favoritism in matters 
 that might come before him for his decision. Giving full 
 recognition to the importance of the place he occupied, he 
 sometimes wished that he might be in a position where he 
 would have a more intimate relation to the affairs of the 
 common people, sharing their joys and sorrows, and helping 
 them as he was used to do when he was judge of the County 
 Court. 
 
 This feeling of isolation and of remoteness was inten- 
 sified by the fact that for a number of years he found him- 
 self in opposition to his judicial associates and the object 
 of disapproval from many of the most prominent men of 
 his time and state. It is one thing to maintain firmly what 
 conscience declares to be right ; and it is a different thing 
 to be wholly indifferent to the opinions of those by whom 
 one is surrounded. Robert Steele was intensely conscien- 
 tious, but he was never apathetic. The dignity of his 
 position and the matters of constitutional law that occupied
 
 282 ROBERT WILBUR STEELE 
 
 his daily attention separated him from close contact with 
 the people, but he never lost his interest in them ; and, what 
 is more remarkable, they never lost their confidence in the 
 people's judge, but rather increased their affection and 
 esteem through the passing years. 
 
 Robert Steele's work speaks for itself, and the imper- 
 ishable proof of his ability and his patriotism is found 
 forever in those opinions which only need interpretation to 
 the extent of reviewing the conditions of their times and 
 of narrating their results. But it is always interesting to 
 see what the people of his own time think of the man who 
 is leading their thought and action, and how far he receives 
 due credit for his work from those for whom, primarily, 
 that work is performed. Robert Steele was singularly 
 fortunate in this respect, and it is easy to gather from 
 letters, from public statements and from newspapers of the 
 time, the evidence of what people thought of him and of 
 his work. 
 
 The political party from which he received his highest 
 official honors, and to which he gave a full measure of 
 loyalty and confidence, freely acknowledged his character 
 and his standing among the people. The Democratic state 
 convention of 1910 was held in September in the Denver 
 auditorium, which Judge Steele had been largely instru- 
 mental in securing for the people of the city. After he was 
 nominated unanimously, the cheers of the great multitude 
 called him to the front of the stage to accept their proof of 
 commendation. As he came forward a hush fell upon the 
 vast assembly, which waited in almost breathless silence for 
 what he might say. It was a moment of vindication and 
 triumph. The political party which had placed him in that 
 high position of trust and responsibility had set its seal 
 of approval upon his course, and had ratified his actions 
 that had been the subject of so much earnest discussion.
 
 IN THE MEASURE OF APPRECIATION 283 
 
 bitter criticism and fierce controversy. It was the culminat- 
 ing moment of his public career, for already, though they 
 knew it not, the end of his activity was drawing near and 
 he stood before them as one upon whom the shadow of 
 eternity had already fallen and whose mind was set upon 
 higher than earthly things. In that supreme moment he 
 found occasion only for the simple words : "I thank you ; 
 I thank you from the bottom of my heart." 
 
 In presenting the name of Robert W. Steele before 
 the Democratic state convention for renomination, former 
 Governor Alva Adams had said : 
 
 "There is no need of verbal credentials. The written records 
 of our courts are his vouchers. His life and official career are a 
 part of Colorado's history. He is not an experiment, but a loyal 
 servant, tried and true. 
 
 "The name Robert W. Steele is to Colorado people more elo- 
 quent than any oration my tongue can weave. His decisions are a 
 proud chapter in the annals of western jurisprudence. 
 
 "For no act will his courage be more respected than when, in 
 indignant rebuke of his court, he wrote upon a political decision the 
 protest: 'I dissent from the judgment of the court because it is 
 unwarranted, is without precedent and directly contrary to law.' 
 This burst of judicial indignation blazes from a page of political 
 infamy as a fixed star shines from midnight blackness. In the 
 keeping of such fearless and just men Colorado may well trust her 
 liberties. 
 
 "Judge Steele is not devoid of political convictions, but upon 
 the bench he is not partisan. He deals in law and justice and not 
 partisanship. Before his tribunal all factions may stand with con- 
 fidence. For political friends and political foes, for rich and poor, 
 for corporations and their patrons he has but one reading of the law. 
 
 "As a man and a citizen he is respected by all. From boyhood 
 to middle life he has walked the ways of Colorado and no calumny 
 has touched him. No stain has marred his escutcheon. 
 
 "His integrity is as firm as yonder mountains, his character as 
 white and pure as the snows that yesterday fell upon their high- 
 lifted summits. As a neighbor and a friend he typifies Homer's 
 modest hero, 'who lived in a house by the side of the road and was 
 the friend of man.' A true son of Colorado, he will ever uphold 
 the dignity and fair fame of the state. As a candidate he will 
 appeal to the patriotism and highest ideals of our people."
 
 284 ROBERT WILBUR STEELE 
 
 On October 13, 1910, Governor John F. Shafroth 
 issued an official proclamation, as follows : 
 
 "Whereas, the Hon. Robert W. Steele, chief justice of the 
 Supreme Court of the state of Colorado, died on Wednesday eve- 
 ning, October 12, 1910; and, 
 
 "Whereas, Justice Steele had been a member of the Supreme 
 Court for the period of ten years, and in that time has established 
 the highest reputation for judicial ability, conscientious action and 
 honorable conduct; and, 
 
 "Whereas, he was beloved by all the people of this common- 
 wealth, whose people desire to show their appreciation of his high 
 moral character by having an opportunity to view his remains; it 
 is therefore 
 
 "Ordered, that, as a tribute to his high worth, the body of 
 Justice Steele lie in state in the capitol building, in Denver, Colo- 
 rado, between the hours of 2 o'clock and 6 o'clock p. m. on Friday, 
 October 14, 1910, at which time the opportunity will be given to all 
 friends and admirers who desire to pay this respect to his memory. 
 It is further 
 
 "Ordered, that all the offices in the capitol building be closed 
 between the said hours, and that the flag at the state house be 
 carried at half-mast for four weeks. 
 
 "Given under my hand and the executive seal this 13th day of 
 October, A. D. 1910. "John F. Shafroth, Governor." 
 
 The following resolutions were presented to the house 
 and senate by a special committee and were adopted by 
 unanimous vote : 
 
 "Resolved, that the death of Chief Justice Robert W. Steele of 
 the Supreme Court of the state of Colorado during the session of 
 the Seventeenth general assembly has devolved upon its members 
 the sad duty of giving form and expression to their feelings over 
 an event which, in common with the citizens of the entire common- 
 wealth, has overwhelmed them in a great affliction. For ten years 
 he was a member of the highest court of the state; he there served 
 the cause of justice without fear and without reproach. His strength 
 of purpose, his courageous independence, his broad sympathies, his 
 strong and thoughtful utterances commanded heed throughout the 
 state and aided in maintaining the people's respect for the law. 
 His public life was a potent force for personal and civic righteous- 
 ness. But the influence of his public activity and achievement was 
 no less forceful than the depth and richness of his private life, 
 pure in mind, unaffected, gentle, honest and sincere, a beloved 
 jurist, a friend of all men. 
 
 "Resolved, further, that in the midst of universal grief we are 
 not unmindful of the greater affliction which the death of Justice 
 Steele has visited upon his own family, the loving wife and other
 
 IN THE MEASURE OF APPRECIATION 285 
 
 relatives; to them we tender our most heartfelt and abiding sym- 
 pathy in this, the darkest hour of their existence. 
 
 "Resolved, further, that this resolution be spread upon the 
 journals of the senate and the house of representatives, and that a 
 duly engrossed copy, properly signed, be forwarded to the family 
 of Justice Steele." 
 
 The following, Senate Joint Resolution No. 13, was 
 adopted by the Eighteenth General Assembly in February, 
 1911 : 
 
 "Whereas, the Honorable Robert W. Steele, chief justice of the 
 Supreme Court of the state of Colorado, died on October 12, 1910; 
 and, 
 
 "Whereas, Justice Steele had been a member of the Supreme 
 Court of this state for the period of ten years, and for many years 
 prior thereto had served the people of this state as judge in other 
 courts thereof, and in that time had established the highest reputa- 
 tion for judicial ability, conscientious action and honorable conduct; 
 and, 
 
 "Whereas, he was beloved by all the people of this common- 
 wealth, and it is fitting and proper that a memorial should be 
 placed to perpetuate his memory; now, therefore, be it 
 
 "Resolved, by the Senate of the Eighteenth general assembly 
 of the state of Colorado, the House of Representatives concurring 
 therein, that a memorial window of Justice Steele shall be erected 
 and placed in the Supreme Court room at the state capitol, and that 
 the governor and chief justice of the Supreme Court of the state 
 of Colorado, together with the treasurer of the state of Colorado, 
 are hereby appointed a commission to superintend and have charge 
 of the placing of said memorial window. 
 
 "Stephen F. Fitzgarrald, 
 
 "President of the Senate. 
 "Geo. McLachlan, 
 "Speaker of the House of Representatives. 
 "Approved February 9, 1911. 
 
 "John F. Shafroth, 
 
 "Governor of Colorado." 
 
 In accordance with this resolution, a stained glass 
 memorial window was placed in the Supreme Court room 
 according to the design as shown opposite page 253 of this 
 volume. 
 
 The Denver Bar Association adopted the following 
 resolution : 
 
 "VVe join, with a grief peculiarly our own, in the state-wide 
 mourning over the death of Robert Wilbur Steele. He was one
 
 286 ROBERT WILBUR STEELE 
 
 of US. The late chief justice, whose untimely death has brought 
 sorrow to all our people, grew up among us and with us; here his 
 boyhood days were spent; here he made his preparations for the 
 bar; here was the scene of his first professional and judicial labors; 
 among the members of this association are still left some of his 
 preceptors, a dwindling number of his predecessors, many of his 
 contemporaries, and those younger men, now in the majoritj^ who 
 have observed his course and had the benefit of his example. 
 
 "This tribute of the Denver Bar Association is based on knowl- 
 edge of the splendid personality we eulogize. As lawyers we 
 cannot but know the worth of his sterling character, his unswerving 
 integrity, his nobility of thought, his high sense of personal honor, 
 and his faithful adherence to all his own high precepts in time of 
 adversity and trial ; it was these qualities which endeared him to 
 us and secured the profound appreciation of the public at large. 
 
 "The wide sympathy of his nature, his innate love of justice, 
 and his strong desire to fit the abstract principles of law to the 
 rapidly developing theories of human rights, brought from our 
 citizenship a quick, intelligent and appreciative response. His 
 decisions while on the Supreme bench will ever remain a monument 
 to his ability, patriotism and sense of right. His mind was of that 
 fine texture which was quick to detect wrong; he despised mean- 
 ness, dishonesty, chicanery, and the defilement which an intensely 
 commercial age has brought into our business and political life. 
 In him there was no spirit of compromise with evil. 
 
 "We believe his public career to have been of great service to 
 the state he loved so well. He has left us a heritage which will 
 be found of increasing value as the years pass on. We admired 
 his character in private life, his conduct in official life, and we 
 prize above all intellectual attributes the full, lovable and rounded 
 proportions of his complete and finished manhood. 
 
 "The years of our friend seem unfinished, but their incomplete- 
 ness is in numbers only. 'That life is long which answers life's 
 great end.' 
 
 "Respectfully submitted, 
 
 "T. J. O'DONNELL, 
 
 "G. C. Bartels, 
 "C, S. Thomas, 
 "James H. Brown, 
 "Ralph Talbot, 
 "H. M. Orahood. 
 "F. W. Sanborn, 
 "R. J. Pitkin, 
 
 "Committee." 
 
 Upon the occasion of the presentation of the memorial 
 of the Denver Bar Association, Justice Campbell, between 
 whom and Judge Steele a strong personal friendship existed 
 for many years, responded for the Supreme Court, saying :
 
 IN THE MEASURE OF APPRECIATION 287 
 
 "The approval of the pure and upright is a laudable 
 longing of every normal person. If to the late chief justice 
 could be wafted the glowing eulogy of his bar and the 
 eloquent addresses of distinguished lawyers, he would cher- 
 ish the winged words of appreciation as balm to his weary 
 soul. The subject of this memorial was no ordinary man ; 
 from early manhood, almost continuously to the end of an 
 eventful life, he held public office in the judicial department 
 of government — as clerk of the County Court, district attor- 
 ney, county judge, and a judge on this bench. In these 
 important offices, with which an appreciative people honored 
 him, he brought that fidelity and personal integrity and 
 devotion to duty which a sensitive conscience should always 
 devote to public trusts. His was a forceful, positive, 
 aggressive and dominating personality, and yet, harmoni- 
 ously co-operating with these virile qualities, was almost a 
 woman's tenderness, which softens the asperity of conduct 
 these qualities alone engender. Impetuous and daring as 
 he was, at times almost to rashness ; firm and unyielding, 
 nearly to obstinacy, when a matter of profound conviction 
 was involved; nevertheless, he was cautious, given to exact- 
 ing introspection, and, under sympathetic treatment, yield- 
 ing, nearly to the point, but not beyond, of surrendering 
 opinion in matters of less moment. '•' * * It was his 
 administration on the probate side of the County Court that 
 merits more than passing notice, and, from many conversa- 
 tions, I know it was in this branch of judicial labor, and at 
 this juncture of his career, that he took the most unalloyed 
 satisfaction, and of which he was most justly proud. With 
 his rapidly growing county of old Arapahoe, the probate 
 docket kept pace, and the probate business, combined with 
 the civil causes there pending, was beyond the endurance of 
 any one man. Unfortunately, the vitally important probate 
 business at times had been neglected as a result of the
 
 288 ROBERT WILBUR STEELE 
 
 importunities of living suitors who were parties to civil 
 causes. The latter were present to press their own cases, 
 while the decedent could not care for his own estate, and, 
 out of the opportunity which was afforded by the inability 
 of the court, for lack of time, to prevent, the faithless repre- 
 sentative sometimes sacked the estate, or permitted others to 
 plunder it. Judge Steele quickly put a stop to all these 
 exploitations. No pressure of civil business, no artifice ever 
 so cunningly devised, no subterfuge be it ever so adroit, was 
 permitted to withdraw his careful oversight, or withhold his 
 intelligent protection of the great and small estates which 
 passed through his court. The rights of widows and 
 orphans, of the insane and minors, of the unfortunates of 
 every class, were safeguarded by his watchful eye, and all 
 attempts to prey upon them that were brought to his atten- 
 tion were frustrated. Here was the public field in which 
 Judge Steele especially shone, and here he set an example 
 of public rectitude, courage and devotion worthy of imita- 
 tion by his successors." 
 
 Many other organizations adopted resolutions express- 
 ing their high opinion of Judge Steele's character and their 
 recognition of his work. Among these were the Denver 
 Chamber of Commerce, the Christian Citizenship Union, 
 many trades and labor organizations in Pueblo, Silverton 
 and other cities of the state, and the bar associations of 
 many counties. 
 
 On January ii, 1912, the Board of Education of the 
 Denver school district named the new building, located on 
 Marion street between Alameda and Dakota streets, the 
 Robert W, Steele School. The first section of the building 
 was completed ready for use at the beginning of the fall 
 term in 1913. This memorial is shown in the illustration 
 facing page 157.
 
 IN THE MEASURE OF APPRECIATION 289 
 
 The following extracts from letters, articles and per- 
 sonal statements will serve to show further how Judge 
 Steele was regarded, as an official and as a man, by the 
 men of his own time, who knew him best and who came 
 into closest touch with the charm of his personality. Yet 
 these are only illustrative, for his widest appreciation came 
 from the great masses of the people, from the unlettered 
 as well as the learned, from both rich and poor, and from 
 all sorts and conditions of men who recognized integrity 
 and justice and righteousness. 
 
 Rev. Allan A. Tanner, D.D. : 
 
 "Judge Steele was so far ahead of his day in his under- 
 standing of human need, and in his vision of that justice 
 which includes inquiry into the purposes of the Creator, that 
 there was no possibility of his being fully appreciated or 
 even fully understood. If it had not been for his wonderful 
 poise and balance he would have been altogether out of 
 place in our yet acquired civilization. What a remarkable 
 combination he was of compassion and of common sense, of 
 sympathy for the poor and of fairness toward all ! He was 
 of the Lincoln type of statesmen, of the Christ type of 
 Christians. There is no measuring of what Judge Steele 
 suffered over the woes and wrongs of those around him, but 
 upon such men progress must depend both in this world 
 and in the world unseen. How idle it is to ask if such men 
 are religious, for no man holds the ideals that Judge Steele 
 held, no man faces opposition in the heroic way that Judge 
 Steele did, unless he is a real student and follower of the 
 ways and will of God." 
 
 Mrs. Nannie O. S. Dodge : 
 
 "Robert W. Steele was a member of the highest class 
 in the Denver high school when I became a teacher in that 
 school in 1875.
 
 290 ROBERT WILBUR STEELE 
 
 "The school was small and teachers and pupils were 
 almost like one family. That was the day of beginnings, 
 the time when precedents were established which have since 
 become rules and traditions. 
 
 "Robert Steele was interested in the regular school 
 work, but still more interested in helping to establish and 
 organize for the future. The first literary society, the 
 Lyceum, was begun largely through his efforts. The 
 debates which gave practice in parliamentary usage were a 
 delight to him. Always modest, he forgot himself com- 
 pletely when on his feet debating, delivering an oration or 
 declamation, or when acting as chairman of any organi- 
 zation. 
 
 "After graduation school was not forgotten. Robert 
 interested himself in founding the alumni association and 
 became its first president. The Denver high school never 
 had a more loyal friend and has reason to be proud of the 
 whole career of this recognized leader of its first graduating 
 class. 
 
 "During the years between the graduation of this boy 
 and the passing of this chief justice of Colorado I saw my 
 friend and former pupil often and watched his work with 
 great interest. Many of the traits which he showed as a 
 boy marked him as a man. He was a leader and organizer ; 
 was always conscientious, kind and just, modest and able, 
 ever trying to assist those in trouble, always taking a firm 
 stand for what he considered right, even when he must stand 
 alone. 
 
 "These words fittingly describe the life of my true 
 friend : 
 
 "'He did justly; he loved mercy; he walked humbly 
 with his God.' "
 
 IN THE MEASURE OF APPRECIATION 29I 
 
 Mr. Frank S. Woodbury : 
 
 "From the ages of 14 to 51, Robert W. Steele and I 
 were classmates, friends and confidants. First and foremost 
 among his characteristics was his remarkable instantaneous 
 perception of right and wrong. He instinctively separated 
 the true from the false, without the slightest apparent effort. 
 He had sincere sympathy and a helping hand for those who 
 were down. He never considered the hope of reward for 
 himself. His sense of justice which finally made him so 
 distinguished sprang from this combination of the sense of 
 right and wrong with human sympathy. No honors could 
 exalt him above his old friends. To know him well was to 
 love him." 
 
 Mr. William G. Evans : 
 
 One of Judge Steele's most intimate friends and asso- 
 ciates was Mr. William G. Evans, whose father. Governor 
 John Evans, had been a friend and hunting companion of 
 Doctor Steele in the old days in Ohio. Though often at 
 variance in matters of politics and public policy, there was 
 never any weakening of their personal friendliness. "Robert 
 Steele," said Mr. Evans recently, "was especially distin- 
 guished for his personal character, which was without a 
 flaw. Clean and upright in all things, he made a splendid 
 record as clerk of the Probate Court, as district attorney, 
 as county judge and as judge of the Supreme Court. As 
 county judge his work was especially commendable, and his 
 supervision of the estates that came under his care as probate 
 judge was of the highest type of public service. His busi- 
 ness ability was demonstrated by his successful investments 
 made by him early in life, and his conduct in the trying 
 days of the panic, and in the disentanglement of financial 
 complications for which he was only partially responsible, 
 was highly creditable to him. In early life he was greatly 
 interested in politics, and at one time he had a stronger
 
 292 ROBERT WILBUR STEELE 
 
 personal following of friends and admirers than any other 
 young man of the city or state. He was always kindly and 
 helpful toward those that needed his help, and a true friend 
 to his many friends. His energy also was remarkable, and 
 he was always active in whatever cause engaged his interest. 
 His purity and integrity of life, his kindliness of disposition 
 and his nobility of purpose won the respect and the approval 
 of all." 
 
 Mr. William Holt, Seattle, Wash. : 
 
 "The newspaper comments show how strong and nobly 
 he stood before the people; and this was the result, not of 
 ostentation, but of simple life, love and truth. I never read 
 more heartfelt words of love and sympathy. He was liked 
 not alone for his ability and comprehensive mind, but his 
 big heart appealed to and touched everyone who knew him." 
 
 Mr. R. D. Thompson: 
 
 "He was a man of pure life. He was warm in his 
 friendships and always loyal to his friends. I don't believe 
 there was a spark of hypocrisy in this nature. I never heard 
 anyone even intimate that he could be guilty of a dishonor- 
 able act. He had the faculty of making friends. In his 
 friendships he always was sincere. Those who knew him 
 loved him. His friendship was warm and cordial, some- 
 thing worth having." 
 
 Governor John F. Shaf roth : 
 
 "I had the highest appreciation of the character of 
 Justice Steele. He was one of the most able and conscien- 
 tious men who ever served in the Supreme Court. Our loss 
 is incalculable. There was a conscientiousness running 
 through all his decisions that made him an object of love of 
 the people of Colorado."
 
 IN THE MEASURE OF APPRECIATION 293 
 
 Mrs. Mary C. C. Bradford : 
 
 "The state of Colorado can boast of many illustrious 
 citizens, but of none who have left a nobler record than that 
 contained in the life of Robert W. Steele. 
 
 "As a student, a lawyer and sitting upon the bench, 
 his vision was clear and true, his conscience responsive to 
 the demand of the essentially great things that move men's 
 souls to action. 
 
 "In his family life he realized all the ideals of those 
 who regard the home as the holy of holies of a nation's life. 
 
 "A friend of the friendless, a dispenser of justice, a 
 valiant leader in every cause that made for righteousness, 
 Robert W. Steele expressed, in public and in private, the 
 inspiration of the early days of the republic, yet greeted 
 with welcome those social transformations that bid fair to 
 make the twentieth century a glorious jewel in the rosary 
 of the ages. 
 
 "Indomitable, patient, far-seeing, of unfaltering cour- 
 age, Colorado's great chief justice was yet as single-minded 
 as a child and tender and forgiving as a woman. 
 
 "All too cold and colorless are these words to fully 
 interpret the beauty of the years wherein he spent, and was 
 spent, for his beloved state. Yet, warmed with a grateful 
 friendship, they are offered here as a tribute, however 
 inadequate, to this uncorruptible son of a great state." 
 
 Mr. Thomas M. Patterson: 
 
 "I had known Robert W. Steele as man and boy for 
 thirty-five years, but until he was elected justice of the 
 Supreme Court my knowledge of him was only such as one 
 has of another who is his townsman, but between whom and 
 himself there was but little intimacy and no confidences. 
 
 "I knew he was the son of a pioneer physician and 
 public-spirited citizen who was known and held in high 
 regard by the people of the entire state.
 
 294 ROBERT WILBUR STEELE 
 
 "When county judge he developed into a jurist of 
 sweet and lovable bearing, of large sympathies — one who 
 never lost sight of the equities in the cases he was required 
 to decide. 
 
 "His nomination and election to the high office of 
 Supreme Court justice came as a surprise to him. He was 
 not a candidate for the nomination in any sense. His party 
 tendered it to him with a unanimity begotten of a knowledge 
 of his splendid manly qualities and absolute faith in his 
 capacity and integrity. 
 
 "It was after his election that I began to know him 
 well. I recall a conversation with him, after he had donned 
 the judicial robes, that showed in bright light his modesty — 
 I might almost say his humility. 'My selection for the 
 Supreme bench,' he said, 'dazed me. I wondered if it were 
 possible that I would be elected, and then I wondered 
 whether my friends wouldn't regard me as presumptuous 
 for daring to sit with the other judges to speak the final 
 word in the great cases that body was constantly called upon 
 to decide. It was a long time before the thing seemed real. 
 I feared I would wake up and find it all a dream.' 
 
 "But when he once assumed the duties of the high 
 bench all hesitation vanished. He continued to be the same 
 sweet, lovable man that had locked his friends of former 
 days to his rise and fortunes. His low voice and dark brown 
 eyes gave help and confidence to the young and untried 
 lawyer; his receptive attitude and searching questions 
 assured the well trained lawyer that he was addressing a 
 keen analyst and capable critic. From the first case in which 
 he sat till the hour he was stricken, the bar of the state 
 realized that they had selected a brave, wise and fearless 
 judge and that law and justice had acquired an exponent 
 and defender that would advance them over all obstacles 
 and maintain them at whatever cost.
 
 IN THE MEASURE OF APPRECIATION 295 
 
 "He became Supreme Court judge in a critical time for 
 the state. It was in economic and social unrest. Labor 
 troubles of vast proportions challenged the rich and power- 
 ful to disregard the fundamentals of free government and 
 to seat wealth in the places framed for law and human 
 rights. Some judges yielded to the passions of those 
 troublesome times, but Judge Steele, never. In a series of 
 cases that the troubles evoked strange law was announced 
 from the bench, but Judge Steele's dissenting opinions ever 
 marked the line at which law and justice strayed from their 
 orbits and to which in the calmer hours public opinion 
 forced them to return to resume their orderly course. 
 
 "The night before Judge Steele was stricken I walked 
 with him to our homes, which were in the same neighbor- 
 hood. It was quite near the midnight hour and the skies 
 were placid and serene. He indulged in retrospect which 
 included father, mother, wife and children and his own 
 fortunes, past and future. I have since wondered whether 
 the spell of the illumined, yet unknown, after-life did not 
 lead him into the rhapsodies and confidences of that last 
 meeting. 
 
 "The next day the blow fell. His great mind was 
 clouded; his great heart's throbs were numbered. He 
 passed away, his memory enshrined with the affections and 
 admiration of every class — of the rich and the poor, of the 
 millionaire and workingman. They all felt that a sheet- 
 anchor of the nation's honor and safety had dragged and 
 with his death had broken." 
 
 Mr. Horace N. Hawkins: 
 
 "The judicial record of Robert W. Steele is open to 
 all who will read the Colorado Supreme Court reports. 
 Embalmed forever in those volumes are the great opinions 
 delivered by him in support of the liberty and freedom of
 
 296 ROBERT WILBUR STEELE 
 
 our people — opinions which, as long as our republic shall 
 last, will be precedents against oppression and injustice. 
 But to those who enjoyed an intimate acquaintance with 
 Judge Steele, no reference to any written reports is neces- 
 sary to keep alive his memory. In the hearts of his friends 
 he is not dead, but will continue to live as long as those 
 hearts shall beat. I never knew another who bound so 
 closely to him in love and loyalty so many friends. That 
 he had a legion of loyal and devoted friends is shown by 
 the fact that, although he was modest as to his own ability, 
 even to the point of diffidence, almost bashfulness, yet he 
 advanced step by step until he stood upon the highest round 
 of the judicial ladder in our state. 
 
 "The high honors with which he was crowned were 
 due to no scrambling or pushing or place seeking upon his 
 part, but to the friends who demanded of him that he accept 
 the honors of which they knew him so worthy. Had he 
 lived, he undoubtedly would eventually have graced the 
 highest judicial tribunal of the nation. 
 
 "Perhaps above all else that attracted to him so many 
 friends was what was commonly spoken of as his strong 
 sense of 'fair play.' Whether he was district attorney, 
 county judge, chief justice of the Supreme Court, or simply 
 a private citizen, his eyes flashed and his jaw became set 
 when he saw any unfair advantage attempted to be taken. 
 Instinctively he went to the rescue of the 'under dog.' 
 Scorning technicalities and sophistry, he perceived at a 
 glance the very right of a controversy and hesitated not to 
 array himself with those unjustly treated. Many times 
 during his career I marveled that one who had himself 
 never filled a lowly position in life could so thoroughly 
 sympathize with the very poorest of our citizens. Truly, 
 he loved his fellow man, and just as true was it that those 
 who knew him well deeply and devotedly loved him.
 
 IN THE MEASURE OF APPRECIATION 297 
 
 "I repeat that in the hearts of his friends Robert W. 
 Steele is not dead, but will continue to live as long as those 
 hearts shall beat." 
 
 Mr. Guy Leroy Stevick: 
 
 "The strongest individual influence which I have ever 
 met outside of my immediate family was Judge Robert W. 
 Steele. Whether it was pleasure or business, no matter 
 what the time, the place or occasion, he was always kind- 
 hearted, clear-visioned of what was right or wrong, and 
 strong in his advocacy of what he believed to be right, 
 irrespective of its effect upon his personal or political for- 
 tunes. When the state seemed to be up in arms over irrec- 
 oncilable differences between labor and capital, the one 
 man who was always accessible, and to whom both sides 
 could go with the knowledge that their views would be 
 appreciated, and that, however great the difficulties, ill-will 
 would have no part in the discussion and good humor would 
 prevail, was Judge Steele. 
 
 "One of the most beautiful relations imaginable was 
 that between Judge Steele and his son. From the time 
 Robert, Jr., was old enough to go along on vacation outings, 
 he accompanied his father, and when they were together 
 there was complete harmony between them. This was due 
 ac much to the reverence and love of the son as to the kindly 
 comradeship of the father. No subject of conversation was 
 thought of and no kind of amusement proposed in which 
 the boy could not take a part with the rest of us." 
 
 Miss Mary F. Lathrop : 
 
 "Ever since I was admitted to the bar I have known 
 Justice Steele. He went out of his way to be kind to me, 
 as he did to other embryo lawyers when he was in the 
 County Court. His genial side was always in evidence."
 
 298 ROBERT WILBUR STEELE 
 
 Dr. S. B. McCormick, chancellor of the University of 
 Pittsburgh : 
 
 "* * * More than twenty-seven years ago — about 
 August 12, 1883 — I first met Judge Steele. I had reached 
 Denver the day before to take charge of R. D. Thompson's 
 office. He was starting to Europe and he asked me to take 
 his place on the county committee. R. W. Steele (he was 
 Bob Steele then, and he has all these twenty-seven years 
 been Bob Steele to me) was chairman of the committee. 
 The qualities in him which bound me to him in five minutes 
 and which have held me close all the years since are the 
 qualities which bound and held the whole state of Colorado 
 to him all these same years, and which made him the beloved 
 chief justice of the commonwealth." 
 
 Judge Ben B. Lindsey : 
 
 "It is hard to get a Supreme judge in these days of 
 universal suspicion of all men whom everyone can trust and 
 love and respect. Everybody could trust and love Judge 
 Steele, and all did so. * * '■' Judge Steele had the 
 keenest sense of justice I have ever encountered. He was 
 a sociological and economic student, and he looked always 
 for the social justice of a thing. " * * On questions 
 of social right he rose triumphant and rendered decisions 
 which have become classic. It was because he possessed 
 that sense of justice to such a remarkable extent. The story 
 is told of the great Chief Justice John Marshall, of the 
 Supreme Court of the United States, that he was once asked 
 how he rendered his decisions. 'I do what seems right to 
 me, and let Brother Story find the authorities.' Story was 
 the great lawyer of the court of that time, 
 
 "Judge Steele put me on the County bench. I entered 
 the law offices of Thompson, Steele & Malone as an office 
 boy, and I scrubbed floors to get along. And the man who
 
 IN THE MEASURE OF APPRECIATION 299 
 
 was always kind to me and who had always an encouraging 
 word and a pat on the back was Judge Steele. When he 
 was elevated to the Supreme bench he recommended my 
 appointment as his successor. I was appointed and his 
 advice and help to me were invaluable. 
 
 "I remember that, after he had been on the Supreme 
 bench a while, Judge Steele said to me one day : 'Ben, I 
 would rather be County judge than a Supreme justice. 
 Down where you are you get an opportunity to help people 
 who are in trouble. You can talk to them personally and 
 give them advice, and that is what I like.' 
 
 "I believe that Judge Steele had more friends than any 
 other man in the state. He had strong opinions, but he 
 made friends because he advocated his opinions without 
 bitterness." 
 
 Mr. Louis F. Post, Washington : 
 
 "In his period of activity, when so many officials — 
 legislative, administrative and judicial — had withered under 
 the influence of plutocracy, Judge Steele seemed like a 
 shadow of a great rock in a weary land. Though I never 
 knew him personally, it was my fortune to be an editorial 
 observer of men and events while he sat upon the Colorado 
 bench, and in this connection his high service came to my 
 attention. He was so devoted to the wholesome ideals of 
 democratic government, so firmly grounded in the great 
 democratic principles of the law, so loyal to the one and so 
 clear in expounding and courageous in applying the other, 
 that his personality stood out in splendid relief against the 
 dark background of his day." 
 
 Mr. Isaac N. Stevens : 
 
 "On my arrival here more than a quarter of a century 
 ago as a young man I met Justice Steele, also a young man.
 
 300 
 
 ROBERT WILBUR STEELE 
 
 and a friendship was then formed which grew closer as the 
 years passed. 
 
 "I soon learned to appreciate Mr. Steele's integrity of 
 thought and purpose and to admire his ability. 
 
 "From young manhood to the ripened years of middle 
 life he constantly grew and expanded in intellect, in soulful- 
 ness and in human sympathy. 
 
 "I never knew a more tender, a more courageous or a 
 more just man." 
 
 Hon. Louis W. Cunningham : 
 
 "I can recall the name of no public man who passed 
 through trying ordeals such as characterized the career of 
 the late chief justice with such fearless composure, and 
 without the sacrifice of self-respect or public confidence. 
 At times of great crises he differed radically with the major- 
 ity of the Supreme Court as then organized. His dissenting 
 opinions, ringing out boldly and clearly, gave hope to those 
 who were battling for order within the law and calmed a 
 disturbed commonwealth." 
 
 Father William O'Ryan: 
 
 "I knew Judge Steele very well. We never met for 
 twenty and more years without a pleasant stop and chat. 
 His father and I were quite intimate in olden times. 
 
 "It is unnecessary to say that I had a great admiration 
 for Judge Steele." 
 
 Mr. Frank G. Nagel, Pacific Grove, Cal. : 
 
 "Life and its meaning is very much of an enigma to 
 most of us who have failed to accomplish what seems to 
 have been easily possible to us, but the Boy Orator laid a 
 good foundation and built upon it a reputation for upright- 
 ness and good-will which is appreciated throughout the 
 limits of his state."
 
 IN THE MEASURE OF APPRECIATION 3OI 
 
 Mr. T. J. O'Donnell : 
 
 "Judge Steele, as became his ancestry, was intensely 
 American in the best and truest sense of the word. To him 
 the principles of the Declaration of Independence, the guar- 
 anties of liberty embodied in our constitution, the theories 
 of human rights fructified into the American states and 
 nation, were living, vital things, and every blow struck 
 against them found him full armed and armored for their 
 defense. His mind was too keen and alert not to discern 
 the least insidious attempt to undermine the foundations, 
 and those open assaults which he so sternly resisted found 
 him fully accoutered for the battle, in which, though beaten, 
 he was never conquered. 
 
 "Robert W, Steele was gifted with a mind which 
 thought right. Instinctively he knew wrong, no matter how 
 disguised or how fine the shadings ; instinctively he despised 
 meanness, dishonesty, chicane and all the defilement which 
 an intensely commercial age has brought into our business 
 and political life." 
 
 President James H. Baker of the Colorado State Uni- 
 versity : 
 
 "I was well acquainted with his father and as well 
 acquainted with the young man as a principal becomes 
 acquainted with his pupils. I took great interest in him as 
 a boy. He possessed a lovable personality and rich nature. 
 He gave promise of great possibilities and I took great pride 
 in his development and advancement. His death is a matter 
 of great sorrow to me, as it is to all the people of Colorado." 
 
 Mr. Thomas P. Fenlon, Kansas City, Mo. : 
 "To the state of Colorado, to which he was such a con- 
 spicuous honor, I offer my sincere condolence in the loss of 
 its chief justice, who brought and gave to its highest court
 
 302 ROBERT WILBUR STEELE 
 
 such high character and learning as a jurist, such a pleasing 
 personality, such refined and dignified honesty of purpose 
 and mind, that it has taken its place among the great courts 
 of the land, and has been left a heritage by its chief justice 
 which will make it ever a court to be aspired to by those 
 only who are endued with the lofty and clean ideals of 
 judicial integrity held by Judge Steele, 
 
 "It has been my great pleasure and privilege to have 
 spent part of two summer vacations with Judge Steele, and 
 that splendid son of his, whom he loved so well, in fishing 
 on the White River ; the memory of my associations and 
 discussions with him will grow sweeter as the years pass on. 
 How he loved it there I And I flatter myself and am pleased 
 with the thought now that I contributed a little to his enjoy- 
 ment last summer in some twice told tales of my fishing 
 efforts in a vain ambition and attempt to equal his actual 
 performances in pursuit of the speckled beauties. 
 
 "I had even begun to look forward at this early date, 
 in accordance with his express wishes, to a renewal next 
 summer of our pleasing incursions to the White River. It 
 would hardly seem natural to go there now ; the echoes from 
 those beautiful and eternal mountains and the restless and 
 unceasing song of that mountain stream would remain, but 
 the real spirit and inspiration would be only a memory; it 
 has passed to the farther shore, and he has felt already 'the 
 breath of the eternal morning.' " 
 
 THE TRIUMPH OF MORAL ENERGY 
 
 By George L. Knapp: 
 
 "To me, the life of Judge Steele is a proof of what can 
 be done by sober, consistent moral energy. I do not mean 
 the so-called moral energy which exhausts itself in pro- 
 nouncing panegyrics on its own purity, nor the closely allied 
 kind which has a club out for every sin and a hand out for
 
 IN THE MEASURE OF APPRECIATION 303 
 
 the campaign contribution of every sinner. I mean the 
 steadfast enthusiasm for justice, for fair play, for personal 
 liberty, for honesty of intellect as well as of purse. Judge 
 Steele had this enthusiasm to a degree never rivaled in my 
 experience of men ; and it was this enthusiasm, this moral 
 energy, that made him the man loved and trusted by the 
 state beyond any other citizen. When Judge Steele saw 
 justice in peril, he simply could not help fighting for it; 
 and the greater the odds, the hotter the battle. He started 
 out in life with a good brain, yet no better than that of 
 thousands of men whose tombstone alone will keep their 
 memory beyond the year of their death. But Steele's brain 
 was free from all bother of self-interest, was consecrated to 
 public service with a singleness of purpose for which there 
 are few parallels ; and a brain put to that use in that fashion 
 is bound to grow and increase. 
 
 "The full measure of Judge Steele's service to the state 
 has not yet been taken ; perhaps cannot be taken till the 
 generation which saw his work shall have passed away. His 
 dissenting opinions are all that saved the state from utter 
 judicial disgrace; but personally I believe his presence on 
 the bench prevented the worst of the conspiracies of that 
 day from ever coming to light. Bad as were the decisions 
 passed over his protest, I have little doubt they would have 
 been followed by worse ones, but for the persistent battle 
 of Judge Steele. You may vote a man down when you 
 know that he is right and you are wrong. But when the 
 man comes grimly back to try it over as fast as occasion 
 offers, making it entirely clear the while just what he thinks 
 of you and your behavior, there comes a time when you will 
 go out of your way rather than try the voting down game 
 again. 
 
 "No man was more devoted to the interests of the 
 people than Judge Steele. No man was less of a dema-
 
 304 ROBERT WILBUR STEELE 
 
 gogue. He filed his dissenting opinions and he made them 
 as sharp as words could make them. The other day, when 
 he was nominated by acclamation by a convention which 
 would not really agree on anything else under the sun, the 
 usual call was made for a speech. Judge Steele came out 
 on the platform, looked out over the sea of faces — the faces 
 of his supporters — and, waving his hand for silence, said 
 merely: 'I thank you!' He never hesitated to declare his 
 position. He was never afraid to go on record. And he 
 never played to the galleries, nor allowed himself to become 
 a worshipper at the shrine of his own achievements. 
 
 "I am sorry, indeed, that we cannot make our own the 
 words of the English king about Earl Percy, and say that 
 we have within the land five hundred as good as he. But 
 the mournful fact is that we have them not. Steele was our 
 Douglas ; not to be replaced. The state does not lack for 
 men of intellect and conscience ; but it has none who can 
 wield the power for good which the years and his own char- 
 acter and the love of the people had put into the hands of 
 Judge Steele." 
 
 HIS SPIRIT STILL RULES 
 
 By Boyd F. Gurley : 
 
 " 'I am perfectly content to base my ultimate judgment 
 on the opinion of the great late Chief Justice Steele.' 
 
 "So wrote Justice Hill in participating in the decision 
 which changed the protest of Judge Steele into the funda- 
 mental law of the state. 
 
 "It is well that this statement finds a place in the 
 records of the court over which Judge Steele presided when 
 called from earth. 
 
 "For these words, reflecting as they do the reverence 
 which the great mass of citizens held for the judge who saw 
 only Justice, and who believed in Men, give evidence of the
 
 IN THE MEASURE OF APPRECIATION 305 
 
 fact that in death, even more than in life, Judge Steele will 
 still rule the highest court of the state. 
 
 "Though his seat upon that tribunal is filled with 
 another; though his kindly eyes do not look into the hearts 
 of men, seeking that Substantial Justice be done, his spirit 
 hovers over its sittings. Consciously or unconsciously, the 
 judges upon that bench will compare their own judgments 
 with what they believe he might have done. 
 
 "Almost involuntarily, the judges who are now in 
 power, and who will follow, will seek for that vision of 
 right ; that belief in the goodness of mankind and the ability 
 of men to rule themselves, which characterized his every 
 judgment. 
 
 "They will seek that democracy of soul which believes 
 that men are brothers and that courts are constituted to do 
 exact justice between all. 
 
 "The decision which consolidates the city and county 
 governments is no vindication for Judge Steele. He needed 
 none. The people always believed that his dissent from 
 the order of the majority of the court was Law, and, though 
 they were powerless to obtain the benefits of his protest, 
 looked upon his opinion as the just one. 
 
 "So it must be a matter of satisfaction that, in the 
 official confirmation of his original judgment, the tribute of 
 Judge Hill finds a place. 
 
 "Those who are fighting the cause of human brother- 
 hood have missed the presence of Judge Steele these past 
 months. They have felt the need of his encouragement, of 
 his kindly wisdom that smiled in the darkest hours and kept 
 Hope alive ; of his prophetic philosophy, grounded in a 
 Catholicism of love for humanity that taught always, Tt 
 will all be right in the end.' 
 
 "These may know that he has not gone, nor will he 
 ever go, from the influences which build for better manhood
 
 306 ROBERT WILBUR STEELE 
 
 and more freedom in this state. His example, his wisdom, 
 his love are still here, to guide, to inspire and to encourage. 
 
 "From behind that curtain which separates the Present 
 from the Eternal, his voice has whispered the same message 
 of faith in humanity and in the power of the people to rule 
 themselves which he spoke in so firm a voice but a few 
 months ago. 
 
 "The people owe something to Judge Hill. He has 
 reminded us that there are men who are so akin to Truth 
 that they share its eternity of influence." 
 
 THE PEOPLE'S JUDGE AND HERO 
 
 By George Creel : 
 
 "Under this one man's protection, a people went for- 
 ward to goals that had hitherto lured as will-o'-the-wisps. 
 As Moses struck the rock, so did this great judge strike the 
 law that justice might gush forth into a life-giving stream. 
 He was at once inspiration and achievement, promise and 
 fulfillment. 
 
 "The gentleness of him, his sweetness, simplicity and 
 utter lack of ostentation — the quiet fashion in which he 
 worked tremendous things — all contributed to a certain min- 
 imization of him during his life. The Rockies never loom 
 large to one with his face against the foothills ; but, pushed 
 far away by the cold, imperious hand of death, we are given 
 perspective. Judge Steele was of heroic stature, and cast 
 in the mighty mold that gave Alfreds and Charlemagnes 
 and Lincolns to the world. 
 
 "Is this too much to say*? Not when one studies his 
 record, reviews his career, and senses his achievements and 
 the odds against which they were won. He went upon the 
 Supreme bench at a time when Colorado lay prostrate under 
 the bloody heel of anarchy — not the anarchy screamingly 
 feared by a 'kept' press, but the Anarchy of Special Privi-
 
 IN THE MEASURE OF APPRECIATION 3O7 
 
 lege, the Reign of Terror instituted by predatory million- 
 aires in lawless control of the law. And this law was being 
 torn into strips, and these strips were used to tie a people 
 hand and foot that they might be pillaged and oppressed 
 without disturbance or resistance. 
 
 "On the Supreme bench he was a minority of one! 
 Had he been merely honest, only that kind of judge who 
 contents himself with keeping his own robe clean, he would 
 have brought no relief, worked no change. But he was a 
 man in whom justice was as much an instinct as self- 
 preservation itself. He had that rare passion for freedom 
 and liberty and equality that God puts in certain souls lest 
 the altar fires of hope and high resolve die out in a land. 
 And in this simple, gentle, kindly man there was as great a 
 courage as ever blazed forth on battle field, or snatched 
 victory from impending disaster. 
 
 "He fought. No concealing shadows for him, no con- 
 tent with consciousness of personal integrity ! Against the 
 whole insolent, vicious, triumphant System he threw him- 
 self, and for years there waged a silent, deadly hand-to-hand 
 battle that meant as much to Colorado as did Bunker Hill 
 to the colonists. And he triumphed! From a minority of 
 one, he became a majority of one. His dissenting opinions — 
 so long the passionate revolts of an individual — became the 
 law. He ceased to write upon plain paper in the loneliness 
 of his chamber, and burned his decisions upon the statute 
 books of the state. 
 
 "One by one he struck off the bonds that bound a 
 people. And, as he worked, the slime fell away from the 
 law, and it shone forth on all the golden glory that was 
 intended. Instead of hatreds and revolts against the law, 
 there came appreciation and understanding. And Colorado 
 arose, stood erect, put aside all harassing and hampering 
 rages and resentments, and went forward in courage and 
 hope and confidence."
 
 CHAPTER XVII 
 
 THE MAN WHOM THE PEOPLE LOVED 
 
 "I have always thought that the supreme test of a man's use- 
 fulness is furnished by the extent to which he possesses the love 
 and confidence of the average man. If that is universal he has 
 not lived in vain. Measured by that test, Robert W. Steele's fame 
 was richly earned, and it is secure. Deep down in the hearts of 
 all classes and conditions of men his image is impressed, his mem- 
 ory green. * * * And what a heritage to us all is his memory, 
 the record of his deeds, his worth as a man, his greatness as a 
 lawyer, his dignity as a magistrate i * * * What he did has 
 been bequeathed to us as an example to encourage and to inspire. 
 He was in life and death an example of the sublime truth that 
 there is no wealth or honor like that which comes to a man who, in 
 all his undertakings, has kept his faith unbroken." — Charles S. 
 Thomas. , 
 
 Three elements go toward the making of manhood : 
 heredity, environment and personality. Out of the eternal 
 shadow comes the spirit that is materialized in the form 
 shaped by physical inheritance, and through the pathways 
 of life persons and events play their complicated parts in 
 the formation of character and the development of physical 
 and mental powers by concurrence with or resistance to 
 outside influences. Yet among the three, heredity, environ- 
 ment and personality, the spirit forever remains supreme. 
 
 From his ancestors of the Ohio Valley Robert Steele 
 drew his patriotism, his aptitude for culture and learning, 
 and his strong inclination toward those traits of mind and 
 body that are most aptly summarized in the expression, "an 
 American gentleman." Those hereditary dispositions were 
 fixed and strengthened by the associations of his youthful 
 years. His education and his environment in early Denver 
 confirmed his democracy of thought and feeling toward 
 everyone that shared his highly prized right of American 
 citizenship. His work as district attorney inculcated respect
 
 THE MAN WHOM THE PEOPLE LOVED 3O9 
 
 for law and order and gave him a practical experience in 
 dealing with the demoralizing and disintegrating forces of 
 modern society. In the County Court he profited by the 
 study of human nature, and learned to judge motive and 
 impulse as well as the legal issues that were presented to 
 him. In the activities and associations of politics he encoun- 
 tered the complicated problems of matching great principles 
 of human rights and liberties to the trivial, selfish and often 
 sordid conditions of local government. In the Supreme 
 Court his mental powers, stimulated by responsibility, rose 
 and expanded to the measure of their opportunity, and 
 proved equal to the demands that were made upon them. 
 
 But the man whom the people loved was neither the 
 manifestation of heredity nor the product of circumstances. 
 No purely materialistic theory can account for the way in 
 which Robert Steele, from the days of his childhood, won 
 the liking and the friendship of those with whom he came 
 in contact. That was the demonstration of a spiritual power, 
 the expression of a personality not limited by the physical 
 laws of the world, but drawn from the reservoirs of eternity. 
 
 Much has been said, and it ought to have been said, of 
 that clear and intuitive sense of right and wrong which was 
 responsible for the strong and inerrant decisions upon the 
 cases, however obscured, that were presented to him. But 
 that sense of truth was something more than the standard 
 rule by which he tested the men and the issues before him. 
 It is not even sufficient to say that he measured his own 
 acts by the same standard he applied to others. Robert 
 Steele was not the servant of truth, but he was truth, for 
 his spirit was the spirit of truth. 
 
 A great poet has written, 
 
 "Once to every man and nation comes the moment to decide, 
 In the strife of Truth with Falsehood, for the good or evil side." 
 
 Had Robert Steele made such a choice, had he deliberately
 
 310 ROBERT WILBUR STEELE 
 
 and definitely, at a particular time in his career, spurned 
 concrete offers of wealth and ambition and, consecrating 
 himself to the cause of liberty and humanity, devoted his 
 life to a party or a creed, he would have deserved com- 
 mendation. 
 
 "Then to side with Truth is noble when we share her wretched 
 
 crust 
 Ere her cause bring fame and profit, and 'tis prosperous to be just; 
 Then it is the brave man chooses, while the coward stands aside 
 Doubting in his abject spirit, till his Lord is crucified, 
 And the multitude make virtue of the faith they had denied." 
 
 There is no record in the life of Robert Steele, or in 
 the knowledge of those who knew him best, that at any time 
 he ever gave consideration to a choice of something beneath 
 the level of his intelligence and his conscience. Doubtless, 
 opportunities of evil and of debasement came to him, as 
 such opportunities come to all men. Doubtless, he saw 
 glittering mirages of fame and honor and dazzling allure- 
 ments of that wealth so plentifully bestowed in a prodigal 
 age. Doubtless, the offer was made to him, and doubtless 
 he realized that the offer was made, of "all the kingdoms of 
 the earth and the glory of them" for no greater price than 
 abasement before the Devil of greed and selfishness. 
 
 But Robert Steele was the Robert Steele whom the 
 people loved because the proposition to sell his birthright 
 for a mess of pottage did not appeal to him. The unfolding 
 of his personality through the years was something more 
 than the shaping of a material being through the incidence 
 of events. It was, rather, the progressive triumph of a 
 Master Spirit, embodied in earthly form, rising ever to the 
 level of higher opportunities and using every experience 
 gained and power won as instruments for the achievement 
 of better things. The people of the state, who trusted him, 
 were not disquieted by the fear that he might prove unwor- 
 thy, because they felt that his integrity was not an acquired
 
 THE MAN WHOM THE PEOPLE LOVED 3II 
 
 habit, nor a matter of preference, but it was something that 
 was an inseparable part of himself. 
 
 That Robert Steele guarded the sacred fire of his inner- 
 most altar through all the years is a matter of general 
 knowledge. Other men, perhaps with an equal endowment 
 of original virtue, have lost their souls through one or more 
 of the various forms through which the forces of evil and 
 of decadence manifest themselves, but he always recognized 
 conscience as the supreme authority of his life ; he set Duty 
 as the guide and duty performed as the end and aim of his 
 career. In paraphrase of a familiar quotation, he was true 
 to himself, and it followed, as the night the day, he could 
 not then be false to any man. 
 
 From the central fire of his personal integrity the genial 
 light and warmth of honesty, kindliness, unselfishness, 
 gentle humor, patience, meekness, temperance, humility, and 
 faith in the eternal righteousness of God and Man irradi- 
 ated his pathway for his own blessing and for the benefit of 
 all with whom he had to do. There was something hypnotic 
 in the effect he had upon those who knew him even slightly, 
 and the same quality was manifested in his gift of oratory, 
 which had an effect disproportionate to the sum of subject- 
 matter and skill of delivery, with full allowance made for 
 excellence of both. 
 
 The broadness of his mental vision and the range of 
 his active interest were befitting to a judge who was called 
 upon to deal with the widest variety of personal and prop- 
 erty rights and possessions. He loved the free air of God's 
 great Outdoors. Mention has been made in an earlier chap- 
 ter of his vacation visits to a ranch in the San Luis Valley 
 and the benefits he gained therefrom. In after years he 
 made many camping and wagon trips into the mountain 
 wilderness of various parts of the state. In the valley of 
 the White River, in northwestern Colorado, he maintained
 
 312 ROBERT WILBUR STEELE 
 
 for many years a summer retreat from the cares and the 
 toil of his laborious office. There, where the great moun- 
 tains rise in primitive form and loveliness as they came 
 from the hands of the Creator, where unscarred forests 
 excite the reverence due in "God's first temples," where 
 foaming torrents pause in sunny pools before they plunge 
 through thousand-mile canons to a distant western sea, he 
 tuned his spirit to the harmony of simplicity and vastness 
 in the primeval wilderness and in sincere humility recog- 
 nized the spirit of that harmony as his own. 
 
 He loved the trees and the beautiful flowers that cover 
 the ungardened meadows of those remote highlands ; he 
 loved the birds that course through the untainted air and 
 build their nests where none may see or make afraid ; he 
 loved the wild, shy beasts that live on the wide upper pas- 
 tures, that shelter themselves in the groves of aspen and 
 spruce, or that lurk in the willow thickets along the moun- 
 tain streams. He did not care for hunting, but he liked to 
 fish and to smoke, soothing the demons of restlessness with 
 subconscious activities, and devoting his major powers to 
 an infinitely more important task, forever excluded from the 
 experiences of those that seek mental refreshment only in 
 convention crowds of great cities or upon the summer 
 piazzas of resort hotels. 
 
 "If the chosen soul could never be alone 
 In deep mid-silence, open-doored to God, 
 No greatness ever had been dreamed or done; 
 Among dull hearts a prophet never grew; 
 The nurse of full-grown souls is Solitude." 
 
 From the "little brothers" of the wilderness Robert 
 Steele transferred his kindly thought and care to the animals 
 of the cities. His part in the anti-docking laws has been 
 mentioned. Denver's traffic squad was inaugurated when 
 Justice Steele, looking out of the window of the Supreme 
 Court room in the capitol building, saw the horses slipping
 
 THE MAN WHOM THE PEOPLE LOVED 313 
 
 and straining on the icy pavement of Colfax avenue and 
 requisitioned the services of a policeman to direct them to 
 a safer and an easier ascent. Two badges Justice Steele 
 wore, and only two. One was that of the Loyal Legion 
 which indicated the honorable service of his father as an 
 officer of the cause of freedom and union in the Civil War, 
 and his own willingness for patriotic service in the measure 
 of duty in peace or in war. The other was that which 
 commissioned him as a humane officer to intervene in the 
 name of the state for the protection of animals abused or 
 neglected. 
 
 But with all his interest in the world of Nature, Robert 
 Steele's chief concern was with the world of man. He loved 
 the wilderness, but he devoted his life to making the world 
 a better place to live in and to helping those that needed his 
 help. His was not the hermit's spirit, seeking the salvation 
 of a miserly soul by withdrawal from the scene of early 
 troubles and temptations, but he shared as best he might the 
 burdens of the common people in the common ways of life, 
 and gave himself freely to service in the place and the man- 
 ner in which he could do the most good. 
 
 He loved the children. He liked to play with the little 
 ones of his own household, to help them with their studies, 
 to share their confidences, to form their ideals, to comfort 
 them in their troubles and to help them in their difficulties. 
 His "juvenile field day" in the County Court showed how 
 his fatherly interest was extended to the fatherless. 
 
 The Steele Hospital, named in honor of his father, 
 directed his attention particularly toward that branch of 
 public beneficence ; and from time to time he gave substan- 
 tial proof of his interest in that work. 
 
 He was much interested in educational matters and 
 recognized fully their importance in the scheme of civic duty 
 and opportunity, though the labors of a diverse career gave
 
 314 ROBERT WILBUR STEELE 
 
 him but little opportunity for activity in educational lines. 
 His eminence in legal learning brought to him the well- 
 deserved recognition of a master's degree from Center Col- 
 lege, alma mater of Doctor Steele, and Denver University 
 later added a doctor's degree in laws. As a member of the 
 University Club he found in its circle his favorite means of 
 social enjoyment and relaxation. 
 
 He was no respecter of persons along the lines of 
 wealth and station, and this was true of his personal regard 
 as well as of his official attitude and action. He was quick 
 to recognize worth and nobility, of character and of intel- 
 lect, and this recognition was as promptly and as cordially 
 given in the log cabins of White River or to the man on the 
 sidewalk, as to his associates of the club parlor or of his 
 chamber at the capitol. Men invariably accorded to him 
 the respect he merited, but he never claimed their tribute to 
 his moral or mental worth. Probably he never thought of 
 any such thing. 
 
 He had a very high regard for the authority he exer- 
 cised, and a very sincere humility for himself. He very 
 scrupulously avoided any action or appearance that was 
 beneath the dignity of a justice of the Supreme Court. He 
 refused absolutely to be drawn into any scheme to make his 
 place or his dignity an appanage of interest or ambition. 
 He never advertised himself; he refused to advertise others. 
 He shunned publicity as earnestly as many seek after it, 
 and, though he had exceptional ability as a speaker, he 
 seldom used that gift in later years lest his appearance 
 might be misconstrued. He would not seek his renomina- 
 tion. He declined to take part in the campaign by which 
 he was elected to the Supreme Court. He excused himself 
 from marrying those persons who sought display through 
 his services because he was a justice of the Supreme Court, 
 but he accorded that distinction to a servant of his own
 
 THE MAN WHOM THE PEOPLE LOVED 315 
 
 household who had earned his respect by years of faithful 
 service. 
 
 He was scrupulously honest and honorable in small 
 matters as well as large, not according to the easy letters 
 of the law and of social custom, but according to the fault- 
 less guiding of an inner sense. He was temperate, walking 
 always in the light of that reason that despises intemperance 
 in thought, in word and in action as a folly even worse than 
 a crime. He was pure in thought, in word and in deed. 
 He was brave under circumstances that would have tried 
 the courage of any man. He was calm when passionate 
 anger would appear to be inevitable. He was kind and 
 considerate even toward those to whom it was his duty to 
 measure punishment, and also toward those whom in the 
 line of his duty he strenuously combatted and steadfastly 
 opposed. 
 
 Such are the words and phrases, not of empty eulogy 
 or lavish encomium, but of the sober judgment of the men 
 of his own day and of his personal acquaintance, the pains- 
 taking portraiture for the benefit of the men of other times 
 and of other states of one of whom it may be said in sober 
 truth and exactitude : 
 
 "None knew him but to love him, 
 None named him but to praise." 
 
 To the young men of Colorado, and especially to the 
 young lawyers of the Denver bar. Judge Steele was a model, 
 an example, an inspiration, a friend and helper. He had 
 a high sense of the ethics and the responsibilities of the 
 legal profession, and scrupulously upheld its honor both as 
 an attorney and a judge. But he also had a most kindly 
 interest in and regard for the young men around him and 
 he always did whatever he could to help them along the 
 path he had pursued. The beautifully illuminated seal 
 upon the certificate issued upon admission to the bar is a
 
 3l6 ROBERT WILBUR STEELE 
 
 mark of his consideration, for he arranged its colors with 
 his own hand, thinking that "the young men ought to have 
 something better than a plain seal in black and white." 
 
 His interest in them they returned with something 
 warmer and more personal than the respect due to an older 
 and wiser man, with something more affectionate than the 
 honor paid to the judge who was eminently successful in 
 the profession they had chosen for their own. They loved 
 him because he appealed to the best that was in them, as 
 men and as Americans. He had faith in them, as he had 
 faith in the nation to which he gave the unstinted measure 
 of his service and devotion. 
 
 Patriotism and love of humanity were the guiding 
 stars of his career — not rival and inconsistent objects of his 
 regard, but harmonious parts of a resolute purpose. To 
 those high ideals his life was consecrated, not in the formal- 
 ism of a conscious statement, but rather in the expression of 
 a lifetime of loyalty and truth. As in the County Court he 
 had guarded the interests of the widows and the orphans, 
 so in the higher tribunal he defended the inheritance of 
 liberty. The citizens of the republic were his wards ; the 
 usurpers of the people's rights were his adversaries; free- 
 dom was a sacred trust committed to his keeping; and he 
 recognized no other treason so vile as that of the public 
 official, in legislative, executive or judicial position, who 
 would use the power entrusted to him for the people's wel- 
 fare to betray their trust. 
 
 He held ever a supreme faith in the American republic ;. 
 a glory in its historic achievements; a pride in its wealth, 
 its resources, its strength, its prosperity, and in all the mag- 
 nificent accomplishments of its civilization. He felt a 
 steadfast confidence in its future, believing that through all 
 its difficulties and dangers things would come out right in
 
 THE MAN WHOM THE PEOPLE LOVED 317 
 
 the end, because he believed in the people, in their patriot- 
 ism and in their love of truth and justice. 
 
 Through the distractions and the temptations of an 
 age when the conditions in state and nation seemed to appeal 
 as never before to the selfishness, to the avarice and to the 
 ambition of men's natures, Robert Steele kept faith with the 
 people and with himself. He did his full part to hand on 
 to Americans of the future the full measure of the inherit- 
 ance of freedom with which he had been endowed ; and he 
 never doubted that there would always be men of his own 
 mold, who would carry forward his work as he had sus- 
 tained the work of others, and that, amid the struggle for 
 wealth and the strife of selfish ambition, there would always 
 be those who would resolutely pursue the Higher Way, and 
 who, guided by Reason and enlightened by Truth, would 
 strive, fearlessly and unfailingly, according to the full 
 measure of their powers and opportunities, for Liberty and 
 Justice and Humanity.
 
 INDEX 
 
 PAGE 
 
 Adams, Gov. Alva 18, 73, 75, 88, 91, 218, 219, 222, 231, 283 
 
 Agriculture 20, 23 
 
 Americanism, fundamental principle 273 
 
 — new 16 
 
 Arata riot 20 
 
 Arnold, Mortimer 43 
 
 Aspen 19 
 
 Assembly, general, resolutions 284, 285 
 
 A. T. & S. F. Ry 22, 52, 87 
 
 Australian ballot 9, 60, 278 
 
 Baker, Prest. Jas. H 42, 44, 301 
 
 Bailey, Judge Geo. W 266, 269 
 
 Bailey, Judge Morton S 269, 276, 277 
 
 Bank failures, 1893 64 
 
 Bartels, G. C 108 
 
 Bell, Ezra M., case 81 
 
 "Big Mitt" 28, 278 
 
 Bland vs. People 265 
 
 Bradford, Mrs. Mary C. C 96, 293 
 
 Brown, Mrs. J. S 43 
 
 Buchtel, Gov. Henry A 91 
 
 Bucknum case 7i 
 
 Builders, The 49 
 
 Campbell, Judge John 259, 265, 268, 277, 286 
 
 Cassiday case 227, 276, 278 
 
 Caswell, Judge Chas. F 269 
 
 Center College 31, 314 
 
 Chaffee, Jerome B 92 
 
 Cities, government of 226, 228 
 
 Civil war 33, 34 
 
 Clayton will case 262 
 
 Clear Creek miners 21 
 
 Cleveland, O., Leader 113 
 
 Coal mining 20, 21 
 
 Colorado, peaceful revolution 9, 10 
 
 — population, increase and change 20 
 
 — railroads 22, 23 
 
 — resources 20 
 
 — soldiers' memorial 98 
 
 Columbian university 46 
 
 Commission form city government 9, 14, 235, 236, 237 
 
 Conejos county machine 28 
 
 Contempt, constructive 162, 163, 276 
 
 — crime against courts 163 
 
 — punishment not personal right of judge 163
 
 320 INDEX 
 
 PAGE 
 
 Cooper estate 79 
 
 Corporations, public utility 27 
 
 Costilla county machine 28 
 
 Cottonwood tree eulogized 99, 100 
 
 Court common people 67, 281 
 
 Court of last resort 167, 272, 278 
 
 Creede 19 
 
 Creel, George 306 
 
 Cripple Creek miners 21 
 
 — strike 104 
 
 C. S. & I. Ry. vs. Nichols 270 
 
 Cunningham, Judge L. W 300 
 
 Daily case 78 
 
 Dayton, Ohio 31, 32, 33, 34, 35, 36, 37 
 
 Democratic state convention, 1910 282 
 
 Denver, auditorium 96, 266, 267, 268, 269, 282 
 
 — Bar Association memorial 286 
 
 —census, 1870 38 
 
 — city and county 230, 232 
 
 — city government 226 
 
 — corporations 27, 218 
 
 — democracy of 68 
 
 — first railroad 37 
 
 —high school 42, 43, 289, 290 
 
 — Republican 61 
 
 — schools 41 
 
 —Tammany 27, 219, 278 
 
 — Times 61 
 
 — University 40, 314 
 
 Denver vs. Hallett 266 
 
 Denver vs. Hubbard 262 
 
 Detroit, Mich., Free Press 112 
 
 Dickerson, Mrs. Mary Peabody 43 
 
 Direct elections, U. S. senators IS 
 
 Direct primaries 9, 14, 278 
 
 Dixon, Judge N. Walter 258 
 
 Docking horses, cruelty 82, 265 
 
 Dodge, Col. D. C 22 
 
 Dodge, Mrs. D. C 42, 289 
 
 Duluth, Minn., Herald 113 
 
 Dunlavy, John C 33 
 
 Dunmire case 55, 57 
 
 Eight hour law 10, 255 
 
 Emblems upon ballot 25 
 
 Evans, Gov. John 22, 92, 291 
 
 Evans, William G 291 
 
 Fenlon, Thos. P 301 
 
 Fishermen's rights 269 
 
 Gabbert, Judge Wm. M 117, 229, 259, 268, 269, 275, 277 
 
 — supplementarj' opinion in Moyer case 117 
 
 Garfield, James R 95
 
 INDEX 3^1 
 
 PAGE 
 
 George's Weekly l^J 
 
 Gilpin county miners > • 21 
 
 Goddard, Judge Luther M 253, 266, 269 
 
 Gold, Semi-centennial ^' 
 
 Good Fellowship Dinner 91 
 
 Gove, Prof. Aaron *2 
 
 Grant, Gov. Jas. B. J° 
 
 Greeley, colonists arrive ^° 
 
 Green vs. Weller • • • 238 
 
 Guntcr, Judge Julius C 231, 266, 275, 277 
 
 Gurley, Boyd F 304 
 
 Hale, Gen. Irving *^ 
 
 Hartman vs. Bailey 26V 
 
 Harris case 270 
 
 Hawkins, Horace N -■■■ 2^5 
 
 Headless ballot 9, 14, 278 
 
 Helm, Judge J. C 96, 269 
 
 High prerogative writs •''"> ^'^ 
 
 Hill, Senator N. P • • • -24, 57 
 
 Hill, Judge William A 269, 277, 304 
 
 Holt, William 292 
 
 Horan case • 2 
 
 Huerfano county machine -° 
 
 —riot V 97^ 
 
 Initiative 9, 275 
 
 Jackson dinner ■ • • • • • • • J'^ 
 
 Johnson case 227, 231, 232, 233, 235, 237, 245, 277 
 
 Judge Johnson's case 270 
 
 Knapp, George L ^"2 
 
 L'Abbe case '^^^ 
 
 La Junta ■ ■ ^* 
 
 Lamar, town founded ^3, 54 
 
 Las Animas county machine ~° 
 
 Lathrop, Miss Mary F 297 
 
 Leadville, miners 21 
 
 —strike 20 
 
 — street mining cases • 257 
 
 Lindsey, Judge Ben B »+. »5, 298 
 
 Loyal Legion 313 
 
 McCormick, Dr. S. B 298 
 
 McKee, Chas. J., letter • • • 36 
 
 Mclntire, Governor ' 1> ^2 
 
 Machine, definition J° 
 
 — makers of the • ^\° 
 
 -political 18, 23, 27, 28, 29, 105, 106, 218, 223 
 
 Mack, Christopher, case ^^ 
 
 Manitou townsite case. 
 
 263 
 
 Manufacturing • • • • • • • • -" 
 
 Maxwell, Judge John H 231,266,268, 269 
 
 Mills vs. Newell in 5^5 
 
 Miners' eight hour law *"> ^^^
 
 322 INDEX 
 
 PAGE 
 
 Mining, coal 21 
 
 —gold 18, 21 
 
 — kings 21 
 
 — silver 18, 19 
 
 Morgan case 255 
 
 Moyer case, dissenting opinion Ill, 119 
 
 Governor Peabody's proclamation 121 
 
 Alleged right arbitrary arrest 149 
 
 Attorney General Bates criticised 137 
 
 Caleb Gushing habeas corpus decision 127 
 
 Case Bollman and Swartout 125, 126 
 
 — ex parte Benedict 136 
 
 — ex parte Milligan 140 
 
 — in re Kemp 138 
 
 — in re Moore 139 
 
 — Johnson vs. Duncan 126 
 
 — Johnson vs. Jones 145 
 
 — McCall vs. McDovsrell 139 
 
 Congress refused suspension writ 131, 134 
 
 — suspended privilege writ 136 
 
 Congressional debate, 1807 128 
 
 —February, 1808 131 
 
 Constitution not changeable 155 
 
 Constitutional privileges not separable 154 
 
 — provisions, Colorado and U. S 135 
 
 Court's opinion discussed 144 
 
 Decision Chief Justice Taney 135 
 
 Distinction suspension writ and martial law 124 
 
 Facts of arrest 122 
 
 Facts of the petition 144 
 
 Governor's civil and military power 148 
 
 — act violated bill of rights 144 
 
 Indiana cases 139 
 
 John Merryman case 134 
 
 Judge David Davis' opinion 141, 142 
 
 Judge Hall's decision 137 
 
 Justice Breese's opinion 145 
 
 Martial law 140 
 
 Powers of governor 146 
 
 Proclamation of governor 121 
 
 Reasonable construction laws 147 
 
 Respondent's reply 123' 
 
 War power of governor 151 
 
 Moyer case, comments on dissenting opinion. 112, 113, 114, 115, 116 
 
 — Judge Gabbert's supplementary opinion 117 
 
 Musser, Judge Geo. W .' 269 
 
 Nagel, Frank G 300 
 
 New Americanism 16 
 
 Newspapers, business success requires independence 160 
 
 — constitutional liberties should not be abridged 161 
 
 — effort control bv business interests 160
 
 INDEX 3^3 
 
 PAGE 
 
 Newspapers — Continued. 
 
 — effort subjugate to machine politics 159 
 
 — expensive equipment "» 
 
 — how purchaseable • • 1°^ 
 
 — not open medium expression all opinions 159 
 
 News, Rocky Mountain 108, 113, 157 
 
 New York Evening Post 11^ 
 
 O'Donnell, T. J 301 
 
 O'Ryan, Father Wm 3UU 
 
 Oklahoma constitution ^^ 
 
 Overton, Miss (see Mrs. J. S. Brown). 
 
 Palmer, Gen. Wm. J • • • 22 
 
 Panic of 1893 63, 64 
 
 Patterson, Thos. M 158, 168, 275, 293 
 
 Patterson case 157, 164, 165, 275 
 
 Alexander Hamilton's argument 200 
 
 Alleged waiver jurisdiction 177 
 
 Andrew Hamilton's defense 198 
 
 Averments of respondent 169 
 
 Case against Horace Greeley 204 
 
 —Hughes vs. The People 196 
 
 — in re Moore et al 206, 207 
 
 — in re Pryor 216 
 
 — John Peter Zenger 198 
 
 —King vs. Root 204 
 
 — MuUin vs. People 198 
 
 —Myers vs. The State 185 
 
 — Neal vs. State 216 
 
 — Negley vs. Farrow 205 
 
 — People vs. Storey 215 
 
 —People vs. Wyatt 172, 173, 207 
 
 — reported 46th Kansas 175 
 
 — State ex rel. Ashbaugh 182 
 
 — State vs. Dunham 190 
 
 — State vs. Frew 205 
 
 — Stuart vs. The People 177 
 
 — Telegram newspaper vs. Commonwealth 183 
 
 Central Law Journal, discussion Chadwick case 181, 216 
 
 Claim truth immaterial 209 
 
 Conspiracy charged ■ . • |65 
 
 Cooley on constitutional limitations 179 
 
 Court assumed new power 176, 186 
 
 Decision in Missouri case •• • ^12 
 
 — in Stapleton case 175, 207 
 
 —Justice Helm in People vs. Green 191 
 
 — in South Dakota case 189 
 
 Declarations of majority opinion 171 
 
 Denial legislative power -08 
 
 Dissenting opinion Justice Steele 168 
 
 Doctrine repudiated by authorities 213 
 
 Doctrine "pending case" mere fiction 186
 
 324 INDEX 
 
 PAGE 
 
 Patterson Case — Continued. 
 
 Essential power of court 191 
 
 Harry Croswell convicted of libel 199 
 
 Initiatory affidavit required 172 
 
 Judge Thomas, "law of necessity" 193 
 
 — newspaper contempts 213 
 
 Justice Kent's opinion 203 
 
 Lawmaking power people supreme 167 
 
 Lord Erskine, free speech and fundamental rights 192 
 
 Lucian's anecdote, Jupiter and thunder 192 
 
 Majority opinion summarized 168 
 
 Mistakes of majoritj- opinion 215, 217 
 
 Opinion Chief Justice Sharswood 181, 215 
 
 —Justice Helm 173, 17+ 
 
 Outgrowth political controversies 165 
 
 Power not essential to federal judges 193 
 
 Proof of charges offered 166 
 
 Respondent's reply 169 
 
 Seymour D. Thompson, review Stapleton case 179, 216 
 
 Sturoc's case 183 
 
 Truth is justification 211 
 
 Wharton on Criminal Pleading and Jurisprudence 184 
 
 Peabody, Gov. Jas. H 218, 219, 222, 231, 255 
 
 Peaceful revolution 9 
 
 Pisko, Mrs. Sarah Eppstein 43 
 
 Pittsburgh, Pa., Dispatch 112 
 
 Post, Louis F 299 
 
 Public utility corporations 27 
 
 Pueblo district court 258 
 
 — political machine 28 
 
 Railroads 20, 22, 23, 37 
 
 Recall 9, 276 
 
 — of judges 167 
 
 Referendum 9, 275 
 
 Revolution, peaceful 9 
 
 Rico 19 
 
 Right of self-government 14, 226, 229, 234, 279 
 
 Riots, Arata 20 
 
 — Huerfano county 20 
 
 Rocky Ford 52, 54 
 
 Rush amendment (see Twentieth article). 
 
 Ryan case 260 , 
 
 St. Louis convention, 1896 72 
 
 Sewall, Dr. Henry, quoted 39 
 
 Shaf roth, Gov. John F 284, 292 
 
 Shiwagri, Joe, naturalization 77 
 
 Silver Cliff 19 
 
 — demonetization 19 
 
 —downfall 18, 19, 64, 93 
 
 — mining 18, 19 
 
 —Republicans 24, 26, 89, 108
 
 INDEX 3^5 
 
 PAGE 
 
 Sloan's Lake 52 
 
 Smelting 21 
 
 Smith, Miss N. O. (see Mrs. D. C. Dodge). 
 
 Sons of Colorado 99 
 
 Sours case 227, 229, 231, 233, 237, 238, 246, 247, 248, 250, 277, 278 
 
 Steele & Malone 51, 54, 57, 65 
 
 Steele Block 54 
 
 Steele, Harriet D 37 
 
 Steele, Dr. Henry K 31, 32, 34, 36, 37, 38, 39, 40, 41 
 
 Steele, Jane G 51 
 
 Steele, Mary F 37 
 
 Steele Memorial Hospital ■*!. 313 
 
 Steele ranch 56 
 
 Steele, Robert W. 
 
 Anecdote, anti-toxin treatment 86 
 
 —fire 35 
 
 — land office 57 
 
 — marrymg 
 
 76 
 
 — poetic quotation 86 
 
 — political meeting 36 
 
 — railway trip 
 
 87 
 
 — sold newspapers 35 
 
 — volunteered for war 88 
 
 — Washington boarding house 4-7 
 
 Admitted to bar +7 
 
 Bankruptcy law written 65 
 
 Birth ...." 31 
 
 County committee chairman 57, 58, 59 
 
 Chief justice 269 
 
 Children 51, 313 
 
 Choice of profession +6 
 
 Columbian university student +6 
 
 Conservative force 16 
 
 Contemporary opinion, his work and character 282 
 
 County court, clerk +8, 51 
 
 —judge 67, 68, 75, 287, 291, 316 
 
 — judge appointed 67 
 
 Death 272 
 
 District attorney, elected 60 
 
 — nominated 59 
 
 Divorce eases 75, 256 
 
 Early emplovment ^^ 
 
 Father's influence 39 
 
 Genealogy 32 
 
 Grandparents 31 
 
 Harmonious member court 271 
 
 High school 42, 43, 44, 45, 290 
 
 — oration ''^5 
 
 Home built • 54 
 
 Humane cases 81, 265, 312 
 
 — officer 313
 
 326 INDEX 
 
 PAGE 
 
 Steele, Robert W. — Continued. 
 
 Juvenile field day 82, 83, 84, 85, 313 
 
 Library 44 
 
 Loneliness high position '. 281 
 
 Losses in panic, 1893 65 
 
 Love of animals 312 
 
 — nature 311 
 
 — outdoor life 42, 312 
 
 Marriage 51 
 
 Memorial window 285 
 
 Mistake admitted 264 
 
 Namesake 32 
 
 Naturalization cases 77 
 
 Oklahoma constitution 88 
 
 Opportunities of youth 47, 50 
 
 Parents 31 
 
 Partnership 51 
 
 Personality 308 
 
 Probate cases 79, 287, 291 
 
 Prophet New Era 11 
 
 Ranch taken up 56 
 
 Re-election assured 272 
 
 Removed to Colorado 37, 38 
 
 Reply to critics 62 
 
 Republican partv left 73 
 
 School .' 35, 41 
 
 Sense of justice 43 
 
 Speech, Garfield dinner 95 
 
 — Gold semi-centennial 97 
 
 — Good fellowship dinner 91 
 
 — Jackson dinner 89 
 
 — Russian refugees 96 
 
 — Soldiers' monument 98 
 
 —Sons of Colorado 99 
 
 Supreme court judge 12, 16, 17, 29, 30, 107, 219, 255 
 
 — nominated 108 
 
 — renominated 283 
 
 Technicalities opposed 229, 237 
 
 Trips to Cuba and California 87 
 
 University Club 314 
 
 Vacations, San Luis Vallev 42 
 
 —White River .' 302, 311 
 
 Victory of his principles 274 
 
 Woodbury prize winner 43 
 
 Steele, Robert W., Jr 51, 297, 302 
 
 Steele, Robert W., school building 288 
 
 Steele, Robert W., of Dayton, O .' 32 
 
 Stevens, Mrs. Flora L. Bishop 43 
 
 Stevens, L N 299 
 
 Stevick, Guy L 87, 297 
 
 Strike, Leadville 20, 104, 107
 
 INDEX 327 
 
 PAGE 
 
 Supreme court, citadel conservation 13, 235 
 
 Tammany, Denver 27, 219, 278 
 
 Tanner, Rev. A. A., D.D 289 
 
 Teller, Henry M 24, 25, 71, 72, 73 
 
 Telluride miners 21, 104 
 
 Thomas, Charles S 91, 308 
 
 Thomas, Theodore H 58 
 
 Thompson, R. D 59, 292 
 
 Too! case 220, 221, 224, 225, 277 
 
 Tritch will case 80 
 
 Turner Hall Republicans 58 
 
 Twentieth article constitution, 
 
 14, 228, 231, 233, 245, 246, 248, 249, 250, 251, 252, 253, 266, 277 
 
 Union bank 41 
 
 Union G. M. Co. vs. Crawford 261 
 
 United States senators direct election 15 
 
 Uzzell vs. Anderson 227 
 
 Van Horn, mayor of Denver 86 
 
 Waite, Davis H 24, 70, 71 
 
 Wells, Judge E. T 46 
 
 White River 311, 314 
 
 White, Judge S. Harrison 269 
 
 Williams, Dr 41 
 
 Wilson, Judge D. P., quoted 47 
 
 Wolcott, Edward 24, 25, 26, 71, 72 
 
 Woodbury, Frank S 43, 291 
 
 Woodbury prize 43 
 
 Woodbury, R. W 43
 
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