Missouri's Evolving Jurisprudence: A Brief History of the Supreme Court of Missouri, 1821 to 2008
Joseph Fred Benson1
When one speaks of the Supreme Court of Missouri, the first thing that comes to mind is the Dred Scott case. Emerson v. Scott2 fueled the flames that led to the Civil War. But the history of the Supreme Court is more than Dred Scott ─ it is the story of Missouri’s counties, cities and townships. It is the story of Missouri’s evolving jurisprudence, and of the men and women who have served on the Court since 1821. It is Missouri history.
The objective of this article is not to repeat what scholars such as former Supreme Court Judge Joseph Simeone3 or the late Professor Gerald T. Dunne4 have written about the Court. This article is to call attention to the richness of Missouri’s evolving jurisprudence ─ to speak about the men and women who have graced the bench ─ and hopefully to shed some light on how the Court was, and how the Court is today.
I. The Formative Era: 1821 to 1850
On Tuesday, June 19, 1821, two of the first three judges of the Court were sworn into office. The Permanent Record Book of the Supreme Court for the June 1821 term reads:
1st year of Independence of the State of Missouri Judges of the Supreme Court of the State of Missouri the Honorable Mathias McGirk, President; and the Honorable John D. Cook Judges of said Court, the Court met 20 minutes at 6 P.M.
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James Evans was appointed Clerk of the Supreme Court of the State of Missouri for the fourth judicial district, having given bond security, and having taken thereupon any oath as prescribed by the Constitution and laws of this State, and having presented a commission from his Excellency Alexander McNair, Governor of the State of Missouri commissioning him as clerk . . . of . . . the court.
* * *
John Hayes as Sheriff of the County of Cape Girardeau having been produced to the Court, and the appointments of William Garner as his deputy, . . . are recognized as the Sheriffs of this Court.5
A couple of days later, John Rice Jones was sworn in as the third judge of the first Supreme Court of Missouri.6 On June 19, 1821, the Court adopted 14 rules of practice.7 Initially, the chief justice held the title of “president.” Over time, the title faded into oblivion and the term “chief justice” became the term embedded in Missouri’s constitutions.
The first three judges of the Court ranged in age from 30 ─ President of the Court Mathias McGirk, the youngest judge ever to be appointed ─ to John Rice Jones of Potosi, who was appointed to the Court at 63 years of age. Judge Jones died in 1823 at the age of 65. Judge John D. Cook of Cape Girardeau was appointed to the Court at 31 years of age. He resigned from the Court in 1823 and went on to serve as circuit judge of Cape Girardeau County. During Judge Cook’s tenure on the circuit court, he was appointed on two separate occasions to the Supreme Court of Missouri. On each occasion Judge Cook refused. In 1848, Judge Cook resigned as circuit judge of Cape Girardeau to become United States Attorney for the District of Missouri. In 1850, Judge Cook, now an old man by the standards of the day, fell ill. For two years he alternated between pain and hope, but in 1852, his constitution weakened, Judge Cook departed this life.
A. Early Cases Heard by the Court
Prior to Missouri’s admission to the Union, the Territorial Court of Missouri heard cases involving Indian affairs and the rights of Native Americans. William Clark of Lewis and Clark fame sat on the territorial court. He endeavored to protect the rights of Native Americans. He strove to improve Indian-American relations ─ a radical concept for his time.
The first case decided by the Supreme Court of Missouri was Collier v. Wheldon and Wife.8 On January 24, 1813, Timothy Kibbe died, leaving a widow, the mansion house, and debts. Between 1813 and May 1815, the widow rented out the property to Collier on a month-to-month tenancy.
At trial it was alleged that since Kibbe died insolvent, his widow was not entitled to dower in the premises. The Circuit Court of St. Charles County agreed with Collier, and the widow appealed.
Reversing and remanding the cause back to the trial court, the Court traced the history of dower to the reign of Edward III (1326-1377), and held that the law prohibited the “deforc[ing] of widows of their dower.”9 Dower has since been relegated to the pages of legal history and property law in law school. Dower in 21st century Missouri is dry. But it was the bread and butter of lawyers’ practice 200 years ago. Collier v. Wheldon and Wife speaks to the times ─ of the social and economic mores of the community, of protection of women ─ and indeed, to the then-present status of women.
When we speak of today’s Supreme Court docket, seldom does one hear of appeals that involve suits brought for money or property due and owing.10 These cases are routinely decided by the Missouri Court of Appeals. In the 19th century, however, appeals involving recovery for money or property were a staple of the Court’s appellate docket.11
1. Slave Cases
Freedom suits abound in the Missouri Reports.12 From a historical perspective, it is interesting to observe that the first slave case decided by the Court was one involving an allegation of fraud in the sale of human property.13
Beginning in the 1820s, southern states began enacting laws abolishing suits for manumission (a device by which slave owners freed their slaves upon their death in accordance with the terms of their last will and testament). Manumission laws applied to the newly freed slave for a limited period of time. Former slaves who did not leave the jurisdiction could be re-enslaved after the grace period had lapsed.14 Unlike manumission laws,15 freedom suits were not couched in the language of last deed and testament or of another instrument under seal. Nor did freedom suits free the former slaves for a fixed time.16
Economics played a minor role in this seamless façade to “explain the Southern passion about race.”17 Race was the consummate fear that propelled the South’s fear and the “passion about race.” In his travels throughout America, the French magistrate Alexis DeTocqueville observed that race war “is a nightmare constantly haunting the American imagination.”18 This was the common denominator in the agrarian South as well as in the industrialized North. By the late 1840s there was a shift in the Court’s perception regarding freedom suits. In Charlotte v. Choteau,19 Judge William Barclay Napton, writing for the Court, held: “Whatever may be the policy of other governments, it has not been the policy of this State, to favor the liberation of negroes from that condition in which the laws and usages have placed the mass of their species.”20
a. Dred Scott
Five years after Judge Napton’s opinion in Charlotte, Judge William Scott, writing for himself and Judge John F. Ryland, overturned 31 years of Missouri case law. The law in Missouri became once a slave, always a slave.
A unique feature of the Dred Scott case, one that historians have not focused on, is the background of Judges Scott, Ryland and Gamble. These future judges were born in Virginia. Judge William Scott was born in Warrenton, Facquier County on June 7, 1804, Judge John Ferguson Ryland of Essex County on November 2, 1797, and Judge Hamilton Rowan Gamble of Winchester County on November 29, 1798.21 Not only were Judges Scott, Ryland and Gamble transplanted Virginians, all three began the practice of law in Old Franklin, Missouri.22 Gamble became Missouri Secretary of State in 1824. Scott moved to Jefferson City in 1827, where he practiced law and in his spare time served as State Treasurer.23 In 1834, Scott became circuit attorney.24 Ryland moved to Fayette in 1830, where he practiced law until being named a circuit judge in 1831, a position that he held until his appointment to the Supreme Court of Missouri in 1849.25 It cannot be underscored that in frontier Missouri the likelihood that Scott, Gamble and Ryland knew each other was inevitable. The more interesting question, and one that is beyond the scope of this article, is: To what extent did their probable business and social relations play a role in the outcome of Dred Scott?
II. Reforming the Bench? An Elective Judiciary
Beginning in the late 1840s, law reform swept the nation. Since the founding of Jamestown in 1607, English substantive and procedural law had been the rule, first by the colonies and then by the newly-established American states. English procedural rules were arcane and harsh. Pleading was an art. By the 1840s an evolving American jurisprudence questioned the wisdom of the late Middle Ages. Were the rules of practice that emerged during the early years of King Henry VII applicable to Missouri ─ to the new frontier, the “Emporium to the West”?
In 1848, New York adopted David Dudley Field’s streamlined code of practice and procedure. “The ink was hardly dry on Field’s Code [as it became known when] Missouri adopted it into law (1849).”26 Law reform permeated the air. For three decades the governor, with advice and consent of the Senate, had appointed Missouri’s judges. But the grassroots movement in law reform did not just apply to procedure. An elective judiciary – a judiciary held accountable to the people – was deemed to be in the best interest of Missourians.
A. Politics Versus Judicial Independence: The Civil War and Reconstruction
From 1850 until adoption of the Missouri Nonpartisan Court Plan in 1940, Supreme Court judges were elected. At times in Missouri’s history, politics and judicial independence collided. We need only to look to the Civil War and the Era of Reconstruction ─ a period marked by removal of judges from the bench based on politics, not judicial competence and temperament. Judges William Scott, William Barclay Napton and Ephriam Brevard Ewing were removed from the bench for refusing to swear to the loyalty oath adopted by the Missouri Convention in 1861.
At the March 1862 term of the Supreme Court, Barton Bates of St. Charles County, William Van Ness Bay of St. Louis County (now the City of St. Louis), and John D.S. Dryden of Pike County were appointed judges of the Court.27 Ironically, these judges were removed from the bench for refusing to swear the loyalty oath of February 13, 1864. On February 1, 1865, Judge Bates resigned from the bench. Judges Dryden and Bay were carried off the bench in their seats on the command of General David C. Coleman and taken to the Recorder’s Court of St. Louis, where they faced criminal charges.28
As late as 1875, the Court was hearing appeals that arose from the Civil War. The facts in Black v. Gregg29 show that hostilities still existed within Missouri. In 1862, Black “made a deed of trust with power of sale, conveying to Lucas, as trustee, certain lands” in his possession, and “one portable saw-mill.” The deed of trust, acknowledged before Lucas as clerk of the Circuit Court of Jackson County, stated that the deed of trust was for the benefit of J.M. Hughes and Jacob Gregg.30 Sometime after executing the deed of trust, Black voluntarily enlisted in the service of the Confederate States of America, and was eventually taken prisoner by Union soldiers. Suffice to say, Black defaulted on the deed of trust. On May 13, 1865, Black was still in federal custody. On that date, Lucas sold the property to Jacob Gregg ─ the beneficiary of the deed of trust.
The Court held that where the rights of third persons are involved, such as good faith purchasers for valuable consideration and without actual notice, that the recording of a deed becomes necessary. Jacob Gregg, however, was the intended beneficiary ─ and as such, the law did not require recordation.31
Dissenting was William Barclay Napton, who had been removed from the bench by the Missouri Convention in 1862. Judge Napton wrote: “I dissent from the opinion of the court in this case.”32 Friction among members of the Court can be interpreted from this case. But we will never know the logic behind Judge Napton’s one-line dissent.
1. Revolution in Law and Intellectual Thought
At the time of the Black case, the Court had undergone a transformation from its initial three-judge court (1821─1872) to five judges. The Court’s docket had grown ─ and with it the need for an expanded judiciary. In the years immediately following the Civil War, American law became just that: American. In 1868, the first American lawbook on negligence was published, Treatise on the Law of Negligence.33
A parade of other texts soon followed. In 1871 Dean Christopher Columbus Langdell of the Harvard Law School published the first casebook, A Selection of Cases on the Law of Contracts.34 Judge John F. Dillon’s classic and first American book on The Law of Municipal Corporations35 was published in 1872. Personal Property and Judgments36 debuted in 1873, Injunctions37 in 1874, and Negotiable Instruments38 and Taxation39 (subtitled “a substantially new subject”) appeared in 1876. Following Taxation came Judge Dillon’s The Law of Municipal Bonds (1876),40 and in the same year Law of Corporate Securities as Decided in the Federal Courts,41 Fraud,42Mortgages,43 and the 1879 texts Eminent Domain44 and Code Pleading.45
a. Some Works by the Judges of the Supreme Court of Missouri
Here in Missouri, Judge Ephraim Brevard Ewing, who had been elected to the Court in 1872, published Practice in The Supreme Court of Missouri: A Compilation of Statutes and Rules with Instructions and Forms for Making Abstracts of Record and Transcripts.46 In 1872 Judge Philemon Bliss left the Court to become the founder and first dean of the University of Missouri-Columbia School of Law. In 1879, he published Code Pleading47 and in 1885, On Sovereignty.48 Judge David Wagner (1868─1876) is best known for presenting a new edition of the Revised Statutes of Missouri in 1870 and again in 1872. Wagner’s Revised Statutes (though unofficial) became the bedrock of a Missouri lawyer’s office from 1870 until the state resumed publishing the official Revised Statutes of Missouri in 1879.
Not only was law and the legal profession undergoing a revolution – so, too, was society. Missouri and the nation were in a jurisprudential and intellectual revolution that would yield 20th century thought. The shaping of the 20th century mind was underway.49
iii. The Court in the Twentieth Century
As the 19th century faded into oblivion and America embarked upon the 20th century, a wave of reform swept the nation. According to the late Richard Hofstadter, dean of American history, the Progressive Era was “[o]ne of the great ‘revival’ movements in American history. Through the press and in the court, in politics and social work, men not only criticized, but sought remedies for the glaring social and political abuses fostered by the rise of industry and Big Business.”50
The early years of the 20th century brought about substantial improvements in the standards of American life and living, and it was the state legislatures which were in the avant-garde’ of political, social and economic reforms. Between 1901 and 1919 states enacted reform measures running the gamut from repeal of the “fellow-servant” rule to enactment of workmen’s compensation laws and statutes establishing minimum wage and maximum hours for women and children. It was also a period in American history in which the “initiative, referendum and recall” came into existence. Missouri was a leader. In 1903, the General Assembly enacted a statute establishing the juvenile court in the City of St. Louis and Jackson County.51
A. Trust-Busting
When we speak of Theodore Roosevelt and trust-busting, the federal Sherman Anti-Trust Act of 1890 springs to the front of our minds. In United States v. E.C. Knight Co.,52 the United States Supreme Court limited the scope of the Sherman Act by holding that control of “manufacturing” was not a part of the federal anti-trust law. The Court drew a distinction between attempts to monopolize “manufacture” and attempts to monopolize “commerce.” Only the latter was held to come within the ambit of the Sherman Act.
1. The Standard Oil Case
Common law remedies and ancient writs can prove to be powerful weapons in reigning in abuses of corporate power. So it was with the Standard Oil case. On March 29, 1905, Missouri Attorney General Herbert Hadley (governor from 1905-1909, and later chancellor of Washington University) brought an information in the nature of quo warranto in the Supreme Court.53 This ancient common law writ means “by what right.” What right did Standard Oil of Indiana have to engage in monopolistic actions in Missouri? Also sued were the Republic Oil Company of New York and the Waters-Pierce Oil Company. The Court appointed a special master to conduct an evidentiary hearing as to whether or not the respondents had violated Missouri law. After more than two years, the hearing concluded on June 11, 1907.
In a 518-page opinion – 340 pages devoted to the facts of the case – Judge Woodson, writing for a unanimous Court, revoked the right of respondent Standard Oil from conducting business in the state. Judge Woodson wrote:
While this court has no power or authority to compel the Standard Oil Company of New Jersey to sell and dispose of its stock in the respondent companies, yet we have the unquestionable power to do just what has been done, namely, to revoke the license of the Standard Oil Company of Indiana, and to absolutely forfeit the charter of the Waters-Pierce Oil Company; and we also have the same unquestionable authority to decline and refuse to suspend said judgment of revocation and forfeiture without the Standard Oil Company of New Jersey will first sell and dispose of its stock and other holdings in the Standard Oil Company of Indiana and the Waters-Pierce Oil Company of this State, and completely sever all its other trust relations in those two companies . . .54
With one fell stroke of the pen, the Supreme Court of Missouri busted John D. Rockerfeller’s billion-dollar oil trust. Old law but good law, used creatively, brought down the concept that the oil trusts were immune from successful prosecution. Other trust-busting began to take center stage in the Supreme Court. Using the writ of quo warranto, the Court busted the lumber monopoly55 that had exerted itself over small businesses and the common man.
B. Election Contests
Hanging chads were unknown to the early 20th century voter. Election contests, however, were quite another matter. At the general election in November 1910, John Kennish was declared the winner over Henry C. Timmonds for a seat on the state Supreme Court by a margin of 5,357 votes.56 In like manner, John C. Brown defeated incumbent Supreme Court Judge James B. Gantt.57
The issue of whether Gantt’s death rendered the case moot58 may be of interest to authorities in civil procedure, but from the perspective of history, registration of African-Americans in the City of St. Louis59 is of paramount interest. It was contended that “in four precincts of the Seventeenth Ward 10,082 negroes registered from 177 houses; that there were 1,135 negroes who registered on September 22, 1910, voted November 8, 1910, and were stricken off in January 1911.”60 Despite these allegations, the commissioner appointed to take evidence “found in regard to the whole negro question that the evidence was insufficient to show that ‘these colored voters did not in fact exist or did not reside at the places from which they registered.’”61
C. Civil Rights
In the last century Missouri proved to be a pivotal state in the quest for civil rights. As early as 1918, the Court in Koehler v. Rowland62 upheld the constitutionality of restrictive covenants as being reasonable. A generation later, the United States Supreme Court held that restrictive covenants violated the Fourteenth Amendment’s Equal Protection Clause.63
The quest for equality in American history necessarily entails equality in education.64 From Plessy v. Ferguson65 until Brown v. Board of Education,66 the doctrine of “separate but equal” was the law of the land.
1.The Gaines Case
A crack in the Plessy wall came in the seminal case of State ex rel. Gaines v. Canada.67 Petitioner Lloyd Gaines, an African-American, applied for admission to the University of Missouri-Columbia School of Law. Though Gaines was a resident of the state and possessed a Bachelor of Arts degree from Lincoln University, he was denied admission to the state’s only law school because of his race. At the time Lloyd Gaines brought suit to compel the university to admit him as a law student, state and federal case law weighed against him.68 Because of how the law stood at the time Gaines filed his lawsuit, the trial court was compelled to dismiss the suit.
Affirming the trial court’s decision, the Court traced the history of Lincoln University. “In 1870, the General Assembly enacted a statute . . . establishing a ‘State Normal School for colored teachers,’” named “the Lincoln Institute at Jefferson City.”69 Over the next half-century, the legislature enacted amending statutes broadening the scope of Lincoln’s educational goals. In 1921, Lincoln Institute became Lincoln University.70 The name change was significant. Reorganization of the Institute into a university equal to the University of Missouri was the goal of the curators ─ albeit, separate but equal.71
The Supreme Court of Missouri unanimously affirmed the trial court’s decision. Because there was a “legislative declaration of a purpose to establish a law school for negroes at Lincoln University whenever necessary or practical,”72 the Court found that the state did not violate Lloyd Gaines’ right to a legal education. The Court’s language in Gaines was pretextual. The Court’s opinion in Gaines vested the legislature, which had drafted the Jim Crow laws, with exclusive jurisdiction to determine when, if ever, the African-American population of the state was to have a constitutional right to a legal education. This was the epitome of the fox guarding the chicken coop. Times were changing, however, and the Supreme Court of the United States under Chief Justice Charles Evan Hughes was willing to re-examine its earlier cases.
The U.S. Supreme Court’s opinion in Gaines is not only important as being the first of many civil rights victories that were to come. Gaines is important because the dean of civil rights attorneys – the eminent Charles H. Hughes, and Sidney R. Redmond, a 1923 African-American graduate of the Harvard Law School and a member of the Missouri Bar – prevailed.
Writing for a 7 to 2 Court, Chief Justice Hughes, reversing the decision of the Supreme Court of Missouri, held: “The equal protection of the laws is ‘a pledge of the protection of equal laws.’”73 The immediate result of the Gaines case was not petitioner’s admission to the University of Missouri School of Law. Lloyd Gaines disappeared from sight after his victory in the U.S. Supreme Court.74 The immediate effect of the U.S. Supreme Court decision was the legislature’s establishment of a law school at Lincoln University for the state’s African-American population.75 The first of many cracks in the Plessy doctrine had made its debut. Over the next 16 years the Gaines doctrine was extended in graduate and professional education76 until Brown scuttled the remnants of the rule in the field of elementary and secondary education.
a. The Legal Profession and . . . The Legal Profession: Two Faces
Law does not exist in a vacuum. Nor does civil rights. Today, the legal profession does not differentiate between the names Missouri Bar Association and The Missouri Bar. Journalists write about The Missouri Bar as being the Missouri Bar Association. There is, however, a historical difference: one of exclusion as opposed to inclusion.
Prior to the establishment of the integrated bar in 1945, not only was membership in the Missouri Bar Association voluntary ─ it was restrictive. In 1931 there were 1,622 members of the Missouri Bar Association. These figures, however, do not include the 55 African-American attorneys then practicing law in Missouri.77 The position of the Missouri Bar Association mirrored that of the national scene. As early as 1912, the American Bar Association refused to admit to membership William Henry Lewis, a graduate of the Harvard Law School who was then serving as United States Assistant Attorney General in the Taft administration. And as late as 1949, the Bar Association of Metropolitan St. Louis turned down for membership Sidney R. Redmond, who in 1938 represented Lloyd Gaines in the U.S. Supreme Court.78 These actions tell a chilling story: America’s dilemma of race.79 Exclusion of African-American attorneys from membership in bar associations at the local, state and national level led to the establishment of the National Bar Association in 1924 and the St. Louis Mound City Bar in 1927.80
Giants in the law – men such as Walter Farmer, the first African-American to graduate from Washington University School of Law (then called St. Louis Law School in Washington University) in 1887; E. H. Taylor, a 1893 graduate of Washington University Law School; and Crittenden Clark, a 1897 graduate of the law school – were trail blazers.81 Nathan B. Young, a 1918 graduate of Yale Law School, served as a judge in the City of St. Louis for seven years, as a prosecutor in St. Louis, and as an attorney in the city counselor’s office.
During the first four decades of the 20th century, African-American attorneys served in numerous positions, such as law librarian, assistant registrar of the Kansas City Law School (now the University of Missouri-Kansas City School of Law), clerk of the St. Louis Court of Appeals, chief clerk of the office of the U.S. Attorney in Kansas City, and probate judge.82
D. Women’s Rights
Like the quest for racial equality, equality based upon gender has not come easy. Nineteenth century pioneers – women such as Phoebe Couzins, the first woman to graduate from Washington University School of Law in 1871 and to be admitted to the Missouri and Arkansas bars83 – were a rarity. Eliza M. Fitzwilliams was the first female deputy sheriff in the history of St. Louis County, serving from January 22, 1877 through the end of 1878.84
Women such as Margaret Bush Wilson,85 a 1943 graduate of Lincoln University Law School, and later a St. Louis attorney and pioneer in the civil rights movement, spring to mind. Judge Ann K. Covington86 is the first woman to serve on the Missouri Court of Appeals and the Supreme Court of Missouri. She was followed on the Supreme Court by Judges Laura Denvir Stith, Mary R. Russell and Patricia Breckenridge. Marybelle Mueller,87 a 1950 graduate of the University of Missouri-Columbia School of Law, was appointed a magistrate judge in Cape Girardeau County by Governor Phil M. Donnelly in June 1955. Not only was she the first female magistrate judge in Cape County, Judge Mueller became the first woman judge in the state who had served as a lawyer!88 After raising her children, Judge Marybelle Mueller returned to the bench in Cape Girardeau County, serving as a juvenile court judge for Cape Girardeau and Bollinger counties.89
IV. Conclusion
Diversity in legal thought is one of the crown jewels in the law. Standard Oil90 is a testament to that diversity and creativity91 in an emerging era of trust-busting and of a new anti-trust jurisprudence.92 We need only examine the backgrounds of the judges who heard and decided Standard Oil to reach this conclusion.
Like institutions small and large, the Supreme Court of Missouri has grown over its 187 years. Its opinions, the work product of judges at a given era, can be labeled conservative to progressive to trend-setting.93 These labels, however, cannot justify, they can not pigeonhole, nor can they do justice to the study of an institution and the development of the law. History is the “abode to the masters”94 and the study of legal history provides an opportunity for individuals to understand the role of the court in society, and development of the rule of law.95
Footnotes
1 © Copyright, Joseph Fred Benson, September 10, 2008. All rights reserved. Judicial Archivist, Supreme Court of Missouri. The opinions expressed herein are those of the author, and do not reflect the opinion of the Supreme Court of Missouri. A.A. 1974, St. Louis Community College –Forest Park Campus; A.B. 1976, A.M. 1977, J.D. 1985 St. Louis University.
2 15 Mo. 576 (1852).
3 See Joseph J. Simeone, Essay, The Legal History of the State of Missouri, 43 St. Louis U. L.J. 1395 (1999).
4 See Gerald T. Dunne, The Missouri Supreme Court: From Dred Scott to Nancy Cruzan (University of Missouri Press, 1993). See also, Charles F. Mullett, The Value of Law to Historians, 9 Mo. L. Rev. 144 (1944).
5 See General Record of the Supreme Court of Missouri, No. 8189, 1815-1821,159 [Hereinafter Cited: Permanent Record Book].
6 See Permanent Record Book at 164. See also Louis Houck, 3 A History of Missouri: From the Earliest Explorations and Settlements until the Admission of the State into the Union 256-57 (R.R. Donnelley & Sons Company 1908).
7 Permanent Record Book at 160-61.
8 1 Mo. 5 (1821).
9 Id. at 7; see also Lawrence M. Friedman, A History of American Law 375-76 (1973). Though some Midwestern states such as Indiana abolished dower as early as 1852, substituting in its place the “forced share” rule, see “Rev. Stats. Ind. 1852, ch. 27, secs. 16,17.” Id. Missouri did not abolish the common law concept until adoption of the new probate code in 1955. See 1955 Mo. Laws 385, § 246, at 464, codified under § 474.110, RSMo. 1949 (Supp. 1955), repealing § 496.010, RSMo. 1949; see also, Edward D. Summers, The Proposed Probate Code for Missouri, 20 Mo. L. Rev. 123, 137 note 75 (1955) and accompanying text; Charles P. Dribben, Comment, Dower, Homestead Estate, Homestead Allowance, and Release of Marital Rights Under the New Missouri Probate Code, 21 Mo. L. Rev. 151, 152 (1956).
10 The last time the Court heard such an action was in Hughes Dev. Co. v. Omega Realty Co., 951 S.W.2d 615 (Mo. banc 1997). Hughes Development was the first time since Martin v. Potashnick, 217 S.W.2d 379 (Mo. 1949), that the Court heard and decided a case on money or property owed and due under § 516.110, RSMo. The majority of appeals involving this issue are filed in and decided by the Missouri Court of Appeals. For a collection of cases see Hughes Development at 617.
11 See e.g., Labeaume v. Hill and Keese, 1 Mo.32 (Mo. 1821); White v. Bennett, 1 Mo. 71 (Mo. 1821); Easton v. Collier, 1 Mo.430 (Mo. 1824); Bank of Missouri v. Scott, 1 Mo. 633 (Mo. 1827); Philipson to use of Menard v. Bates’ Executor, 2 Mo. 95 (Mo.1829);O’Fallon, Adm’r. of Mullanphy v. Boismenu, 3 Mo. 286 (Mo. 1834).
12 See Susan v. Hight, 1 Mo. 82 (Mo. 1821), the earliest freedom suit decided by the Supreme Court of Missouri. See also, Winney v. Whitesides, 1 Mo. 334 (Mo. 1824); Merry v. Tiffin and Menard, 1 Mo.520 (1827); La Grange v. Choteau, 2 Mo. 19 (Mo. 1828); Milly v. Smith, 2 Mo. 32 (Mo. 1828); Theoteste (alias Catiche) v. Choteau, 2 Mo. 116 (Mo. 1829); Vincent v. Duncan, 2 Mo. 174 (Mo. 1830); Ralph v. Duncan, 3 Mo. 139 (Mo. 1833); Julia v. McKinney, 3 Mo. 193 (Mo. 1833); Nat v. Ruddle, 3 Mo. 282 (Mo. 1834); Rachel v. Walker, 4 Mo. 350 (Mo. 1836); Wilson v. Melvin, 4 Mo. 592 (Mo. 1837); Choteau v. Pierre, 9 Mo. 3 (Mo. 1845); Charlotte v. Choteau, 11 Mo. 193 (Mo. 1847); Emmerson v. Scott, 11 Mo. 413 (Mo. 1848) (Dred Scott I).
13 See Irwin v. Wells, 1 Mo. 11 (Mo. 1821). This case also sounds in detinue, and whether the third party was in privity of contract with the bailor.
14 See Friedman, note 9, at 193-94.
15 See Of Emancipation of Slaves, Mo. Rev. Stat. 587-88 (1835). This statute was Missouri’s manumission law.
16 See Friedman at 193.
17 See Alexis de Tocqueville, Democracy in America 329 (J.P.Mayer & Max Lerner eds., 1966). The period 1822-1832 has aptly been described as “a watershed in the history of Southern white people’s ideas of slavery. Hitherto, the planter class apologized for slavery something forced on them by circumstances which they could do nothing about; many frankly called it a curse. Beginning around 1822 there was a gradual tightening of the ‘black codes’ in the slave states, and a defiant adoption of the theory of slavery.” Quoting, Samuel E. Morison, et al., The Growth of the American Republic 474 (Oxford University Press, 6th ed. 1969). Slave revolts began to pop up all over the South and border states. When de Tocqueville traveled the young republic, the famous Nat Turner slave revolt of 1831 was fresh in the minds of Americans. Nat Turner, a pious slave, “enlisted a number of others who killed in August 1831 57 whites before they were rounded up by militia with the help of regular troops from Fort Monroe and sailors from the navy. Between 40 and 100 Negroes were killed, and Turner was hanged.” Id. at 475. This was the environment of the nation, and it made its way into deTocqueville’s study of America.
18 See Friedman at 193, quoting Alexis de Tocqueville, Democracy in America 329, id.
19 11 Mo.193 (1847).
20 Id. at 200.
21 See L.C. Krauthoff, The Supreme Court of Missouri, 3 The Green Bag 157, 171, 174, 176 (1891).
22 Id., at 171, 176-177.
23 Id., at 171.
24 Id.
25 Id. at 174-75.
26 See Freidman, note 9, at 343.
27 See “Preface,” 31 Mo. (1861-1862).
28 See 35 Mo. v-vi (1865).
29 58 Mo. 565 (Mo. 1875).
30 Id. at 566.
31 Id. at 567.
32 Id.
33 See Harry J. Lambeth, The Practice of Law in 1878, 64 A.B.A. J. 1015, 1018 (1978).
34 C. C. Langdell, A Selection of Cases on the Law of Contracts (Little, Brown & Co. 1871).
35 John Forrest Dillon, The Law of Municipal Corporations (James Cockroft & Co. 1872).
36 See Lambeth, at 1015.
37 Id.
38 Id.
39 Id.
40 John F. Dillon, The Law of Municipal Bonds (G.I. Jones 1876).
41 See Lambeth at 1015.
42 Id.
43 Id.
44 Id.
45 Id.
46 Ephraim B. Ewing, Practice in The Supreme Court of Missouri: A Compilation of Statutes and Rules with Instructions and Forms for Making Abstracts of Record and Transcripts (1883). The Supreme Court has in its rare book collection an 1883 edition of Judge Ewing’s work.
47 See Philemon Bliss, A Treatise Upon the Law of Pleading (F.H. Thomas & Company, 1879).
48 See Philemon Bliss, Of Sovereignty (Lawbook Exchange 2005) (1885).
49 See Henry Steele Commager, The American Mind: An Interpretation of American Thought and Character Since the 1880s (Yale University Press, 1950).
50 See Richard Hofstadter, The Progressive Movement: 1900–1915, 97 (Vintage Books ed., 1955) as cited in Joseph Fred Benson & Bernard L. Lewandowski, One Hundred Years of Justice: A History of the Circuit Court of St. Louis County, Missouri, 1877 ─ 1978, 42.
51 See Douglas E. Abrams, A Very Special Place in Life: The History of Juvenile Justice in Missouri (Mo. Juvenile Justice Assoc., 2003). This project was supported by Award No. 2000-JN-FX-0087 awarded by the Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs, U.S. Department of Justice, and by funding assistance from the Missouri Bar Foundation.
52 156 U.S. 1 (1895).
53 See State ex inf. Hadley, Attorney-General v. Standard Oil Company of Indiana., 116 S.W. 902 (Mo. banc 1909), aff’d. sub nom., Standard Oil Company of Indiana v. Missouri, 224 U.S. 270 (1912).
54 Id. at 1061.
55 See e.g., State ex inf. Attorney General v. Arkansas Lumber Company, 169 S.W. 145 (Mo. banc 1914); see also State on Inf. of Attorney General v. Arkansas Lumber Co., 190 S.W. 894 (Mo. banc 1916), ancillary proceeding sounding in garnishment to enforce the Court’s 1914 decree compelling Bradley Lumber Company, one of the many named defendants, to pay “a fine of $50,000, to be levied on its possessions” in addition to ouster of its corporate franchise. Id.
56 See Timmonds v. Kennish, 149 S.W. 652, 652 (Mo. banc 1912) (Timmonds II).
57 See Gantt v. Brown. Timmonds v. Kennish. Gass v. Evans, 142 S.W. 422 (Mo. banc 1911) (consolidated cases under Gantt v. Brown); see also Gantt v. Brown, 244 Mo. 271(Mo. banc 1912) (Gantt II).
58 Gantt II, 244 Mo.at 306.
59 Gantt II, at 275.
60 Id., at 275.
61 Id., at 291.
62 205 S.W. 217 (Mo. 1918).
63 See Shelley v. Kraemer, 334 U.S. 1 (1948), rev’g. sub nom., Kraemer v. Shelley, 198 S.W.2d 679 (Mo. banc 1946).
64 See J.R. Pole, Pursuit of Equality in American History, passim (University of California Press 1979).
65 163 U.S.537 (1896).
66 347 U.S. 483 (1954).
67 305 U.S. 337 (1938), rev’g 113 S.W.2d 783 (Mo. banc 1938).
68 See e.g., Gong Lum v. Rice, 275 U.S. 78 (1927), holding that separate but equal in the field of public education did not violate the Fourteenth Amendment equal protection clause; see also, Lehew. v. Brummell, 15 S.W. 765 (Mo. 1891). In Lehew, the Court held that the Fourteenth Amendment equal protection clause was violated by the state in requiring African-American children to walk three and one-half miles to school as compared to two miles for white children. Sitting in division, Judge Strong held: “[E]quality and not identity of privileges and rights is what is guaranteed to the citizen.” Id. at 766.
69 113 S.W. at 786.
70 Id. at 790.
71 Id. at 790-91.
72 Id. at 791 [emphasis added].
73 Gaines, 305 U.S. at 350, quoting Yick Wo v. Hopkins, 118 U.S.356, 369 (1886).
74 See Nathan B. Young, Early Black Lawyers in St. Louis, 30 St. Louis B.J. 6, 14 (Spring 1984).
75 See 1939 Mo. Laws 685, Section 2, at 686 (codified under § 10774, RSMo. 1939).
76 See e.g., McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950) (Held: qualified African-Americans who have been admitted to doctoral programs can not be treated differently than other qualified non-African-Americans, nor can the state impose restrictions that impair and inhibit one’s ability to study, and to engage in discussions and exchange of views with other students, and in general, to learn his profession.) Id., at 640-641. In the field of professional education, see e.g., Sweatt v. Painter, 339 U.S. 629 (1950) (legal education). See generally, Mark V. Tushnet, The NAACP’s Legal Strategy against Segregated Education, 1925-1950 (Univ. of N.C. Press 1987).
77 See Anne-Marie Clark, The History of the Black Bar, 30 St. Louis B.J.17, 22 (Spring 1984).
78 See Marshall D. Hier, While no one spoke against [Sidney] Redmond’s Admission, 42 St. Louis B.J. 42 (Fall 1995).
79 See Gunnar Myrdal, An American Dilemma: the Negro Problem and Modern Democracy (Harper, 1944).
80 See Young at 14. Judge Young, a 1918 graduate of the Yale Law School, was elected the first Secretary of the Mound City Bar in 1927. Young, at 10, 14.
81 See Clark at 18.
82 Id. at 22.
83 See Sandra Davidson Scott, Phoebe Couzins, Show Me Missouri Women: Selected Biographies 173 (Mary K. Dains ed., 1989).
84 See Joseph Fred Benson & Bernard L. Lewandowski, One Hundred Years of Justice: A History of the Circuit Court of St. Louis County, Missouri, 1877 ─ 1978, 20-21 (1981) (commissioned centennial history by the Circuit Court of St. Louis County).
85 See Sara Sale, Margaret Bush Wilson, Show Me Missouri Women: Selected Biographies 177 (Mary K. Dains ed., 1989).
86 See Sandra Davidson Scott, Ann Covington, Show Me Missouri Women: Selected Biographies 174-75 (Mary K. Dains ed., 1989).
87 See Bertha Hoffmeister, Marybelle Mueller, Show Me Missouri Women: Selected Biographies 175-76 (Mary K. Dains ed., 1989).
88 Id. at 176.
89 Id.
90 Notes 53 and 54, and text accompanying.
91 In Millar v. Taylor (1769), 98 Eng. Rep. 201, 206 (K.B.), as cited in Dunne at 5, Justice Willes held that the genius of the common is: “When new problems arise, new principles will be discovered to resolve them.” Creating new rules through existing rules is the epitome of the common law tradition –and it is this concept that benefits law and society.
92 Note 55 and text accompanying.
93 See e.g., Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), adopting pure comparative fault. Prior to Gustafson, 40 states had adopted some form of comparative negligence. Id. at 13. The Supreme Court of Missouri adopted pure comparative fault, which in the words of the late Judge Billings, “is more equitable and just than the ancient and harsh, all or nothing, rule of contributory negligence, and the mathematical gymnastics employed in last clear chance and humanitarian cases.” Gustafson, 611 S.W.2d at 28.
94 The phrase “abode to the masters” is taken from Massachusetts Chief Justice Oliver Wendell Holmes’ address on the opening of Boston University Law School in 1897. Chief Justice Holmes wrote: “The aim of a law school should be, . . . not to make men smart, but to make them wise in their calling – to start them on the road which will lead them to the abode of the masters.” See Oliver Wendell Holmes, Collected Legal Papers 35, 39-40 (Harcourt, Brace & Howe 1920). The aim of history should be twofold: 1) to set one on the road which will lead to the abode of the masters; and, 2) to afford a better understanding of our legal, political and social institutions and the individuals who have contributed to them.
95 See Charles F. Mullett, The Value of Law to Historians, 9 Mo. L. Rev. 144 (1944). This remarkable law review article written by History Professor Charles F. Mullett of the University of Missouri brings forth George Santayana’s illuminating statement that a “‘man’s life as it flows is not a theorem to which there is any one rigid solution’ but ‘is composed of many strands and looks to diverse issues.’” Id. at 146. This statement reflects the history of our law and its institutions.