William J. Stephens: Some Cases in Point
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University of Montana ScholarWorks at University of Montana Graduate Student Theses, Dissertations, & Professional Papers Graduate School 1995 William J. Stephens: Some cases in point Kenneth M. Wasserman The University of Montana Follow this and additional works at: https://scholarworks.umt.edu/etd Let us know how access to this document benefits ou.y Recommended Citation Wasserman, Kenneth M., "William J. Stephens: Some cases in point" (1995). Graduate Student Theses, Dissertations, & Professional Papers. 8772. https://scholarworks.umt.edu/etd/8772 This Thesis is brought to you for free and open access by the Graduate School at ScholarWorks at University of Montana. It has been accepted for inclusion in Graduate Student Theses, Dissertations, & Professional Papers by an authorized administrator of ScholarWorks at University of Montana. For more information, please contact [email protected]. i Maureen and Mike MANSFIELD LIBRARY TheM University ontana of Permission is granted by the author to reproduce this material in its entirety, provided that tliis material is used for scholarly purposes and is properly cited in published works and repoits. * * Please check "Yes or “No “ and provide signaiure^''^' Yes, I grant permission _^L. No, I do not grant permission----- Author’s Signatuf Date; Y conimercial pmposes or financial gain may be undeitakei hot’s explicit consent. ■ Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. WILLIAM J. STEPHENS; SOME CASES IN POINT by Kenneth M. Wasserman B. A. The University of California, Berkeley, 1970 presented in partial ftilfillment of the requirements for the degree of Master of Arts The University of Montana 1995 Approved by: Chairman / ean, Graduate School Date / Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. UMI Number: EP39573 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. UMI O iss^ation FHiWishing UMI EP39573 Published by ProQuest LLC (2013). Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code Pro.Q^st ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. W asserman, Kenneth M., M.A., May, 1995. History William J. Stephens; Some Cases in Point (104 pp.) Advisor: Prof. Michael Mayer This Master's Thesis analyzes the frontier legal practice of William J. Stephens, an attorney who practiced in Missoula County during the last third of the nineteenth century. The practice demonstrably reflected historical influences, including both primitive Anglo- Saxon practice as well as the more erudite teachings of the Inns of Court. Bom in Ireland, Stephens came to America in time to experience the California gold msh. He spent a short time as a miner and as a merchant before taking up the practice of law in 1860. Stephens followed the mining camps, opening practices in Virginia City, Nevada, Idaho City Idaho, and Deer Lodge, Montana before settling in Missoula, Montana. Missoula County litigation records reveal similarities between the cases Stephens handled and primitive Anglo-Saxon procedure. These include the use of oaths verifying the truthfulness of complaints and answers, an unvarying reliance upon pre-trial seizure of the subject matter, and jury trials. Excepting the last mentioned, these same factors distinguish frontier practice from modem practice. As to jury trials, frontier jurys had more latitude than modern ones. Stephens handled numerous mining disputes, including matters within the purview of the so-called "miners' codes." Many suits were upon promissory notes, which were used as instruments of consumer credit and contract documents as well as evidences of ordinary borrowing. Many suits were brought upon the "common counts," further evidencing reluctance to employ attorneys as draftsmen. Torts to the person were rare, further distinguishing frontier practice from modern practice after the tort "revolution." The growth of the Town of Missoula in the 1880s is discernable from its litigation records, particularly after the arrival of the Northern Pacific Railroad, in the court cases become lengthier, more complex, more commercial, and concern greater dollar sums in issue. While other commentators have striven to point out that, allowing for its more colorful vignettes, frontier lawyers demonstrated a degree a care and skill which would belie media impressions. This study takes that observation further. If the aim of litigation is fair, cost-efficient dispute resolution, then practice in frontier Missoula County was superior to modern practice. 1 1 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. TABLE OF CONTENTS Preface .......................................................... 2 Introduction ................................................... 5 Chapter 1. Two Vectors .......................................... 9 Chapter 2. William J. Stephens ............................... 27 Chapter 3. The Early Practice: A Procedural Focus ......... 49 Chapter 4. The Early Practice: The Substance of the Causes . 63 Chapter 5. The Eighties ....................................... 82 C o n c l u s i o n ................................. 96 Afterward (A Note on Technology) ............................................................ 98 Bibliography ................................................. 100 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. WILLIAM J. STEPHENS: SOME CASES IN POINT Preface This Master’s Thesis shall study the law practice of William J. Stephens, who practiced law in Missoula County, Montana, in the last third of the nineteenth century. The direction of its narrative will move from the general to the specific, from an outline of the broader influences of the law to a detailed description of these influences in the practice of one lawyer, in one frontier county, in one fragment of time. The choice of Missoula County stems simply from logistic convenience occasioned by the proximity of the Missoula County courthouse to the University of Montana. The choice of Stephens stems from his high level of litigious activity and his relentless character. This "relentless" element of Stephen's character undoubtedly sprang from many sources. From what is known about his life, one can surmise that his mother's death during his own childbirth, a hearty upbringing in County Dublin, Ireland, and, what he described as liis early assumption of "life's responsibilities," forged a strong and resolute man. As a young man, his life intersected another influence: the Anglo-American common law. Through his career, Stephens became something more than another tough, resourceful, nineteenth century immigrant. Beyond being a lawyer, a court clerk, a state representative, and a judge, Stephens emerged as a true man of the law. Like so many others before and after him, Stephens adopted the patterned response to conflict which defines the lawyer, the relentless Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. dissection of human controversy into correlative rights and obligations. Stephen's practice provides an excellent opportunity to study a lawyer's real usefiilness to his clients. He almost never represented a fragmented body of shareholders. Stephens own friends and neighbors felt the impact of the results he obtained in and out of court. Like any lawyer, he had to face his clients' various accusers and tormentors; but he also had to face his clients. Since Stephens practiced in what was then a small, frontier community, his impact can be measured with particular clarity. I would be remiss in my obligations if I failed to acknowledge the able assistance of Marcia Porter of the Records Management Department of the County of Missoula, as well as her staff, Betty Labelle, Kurt Fuchs, and Beth Sobolik. Each of these people bring an appreciation for the Western Montana's heritage to the efficient discharge of their duties. In another arena, William Jones, Esq., of the law firm of Garlington, Lohn, and Robinson, provided great encouragement and directional assistance. Mrs. Audra Broman of Missoula, Montana, who has accumulated a large body of information concerning early Missoula, graciously opened her files to me, thereby contributing to this effort. Mrs. Broman's records are the fruits of decades of patient compilation, and her efforts have been motivated solely by a love for history. I also have had the excellent good fortune to make the acquaintance of Ms. Heather Hawley of Seattle, Washington. Ms. Hawley is the great-great granddaughter of William J. Stephens. She assumed the duties of family historian and has tirelessly gathered, and graciously made available to me, important information