Wilbur Fisk Stone
by Larry Bohning
Larry Bohning is a Denver County Judge and a Colorado history buff. The author wishes to thank Colorado Bar Association Historian David Erickson for his generous assistance in providing information for use in writing this article. Erickson is writing a history of the Colorado Bar Association.
Courtesy, Denver Public Library,
Western History Department
If people living in Colorado today have heard of Wilbur Fisk Stone, it is usually because they know him as one of the chroniclers of early-day Colorado history. Few realize that he was also a journalist, attorney, and respected jurist. After his death in 1920, it was said: "Few men had been so intimately identified with the history of Colorado and no other had been so prominently identified with it for so long a period [1860 to 1920]. It might almost be said that his history was the State’s history."1
The Early Years:
Connecticut to Colorado
Wilbur Fisk Stone, a descendant of early English settlers of the Guilford colony in southern Connecticut, was born in Litchfield, Connecticut, December 28, 1833. He and his family lived for brief periods of time in western New York, Michigan, and Indiana. In 1844, his father moved the family to a large farm near Oskaloosa in what was then known as Iowa Territory. Stone worked on the farm until he was 18 and then went to school in Indiana. After earning an undergraduate degree at Indiana State University at Bloomington, he entered its law department and graduated with a law degree in 1858. He then moved to Evansville, Indiana, where he practiced law and served as an editor of the Evansville Daily Enquirer.2
In the fall of 1859, Stone went to Omaha, Nebraska, on legal business and remained there through the winter. While in Omaha, he also took a job as assistant editor of the Nebraskan (later the Omaha World-Herald). Having acquired the then rare skill of shorthand, Stone reported verbatim the proceedings of the Nebraska territorial legislature that winter. Also during that winter, he met people coming back from Colorado (then called the Provisional Territory of Jefferson) to get fresh supplies. Among those he met were William Byers, founder of the Rocky Mountain News, and Governor Robert W. Steele, Governor of the Territory of Jefferson. Stone was fascinated by the stories they told about gold and the wondrous Rocky Mountains. In the spring of 1860, he joined those coming to Colorado to seek their fortune.3
Park County and
Stone passed through the then ramshackle town of Denver in 1860 and went on to the Tarryall "diggings" in South Park. He spent the next five years in that area prospecting, mining, and practicing law. Stone was one of the early settlers of Cañon City and, in 1860-61, along with attorney George A. Hinsdale, drafted the first code of laws for the "People’s Court" of that district. He described life there in a letter he wrote from Cañon City, dated January 29, 1861, to Sarah "Minnie" Sadler (his future wife).
We have had many gay parties here the past three months, but I have attended few; they are grotesque—a mixture of the manners and costumes of the elegant and accomplished in society, and the rude freedom of mountaineers and trapper’s life—where silks and perfumery, fringed buckskin and belted knives rustle and dangle together in the merry quadrille.
How do I look? Well, a little changed perhaps, since you saw me; complexion a little bronzed by a Mexican sun; hair a la mountaineer, beard a trifle longer than it used to be; nose the same irregular Roman cast; teeth yet untarnished by tobacco, breath ditto by whiskey, and hands yet uninitiated in the mysteries of the—here—almost universal practice of gambling, or at least playing cards. I dress in black, having since I left the mountains and entered the practice of law, doffed my buckskin rig, belted arms, long boots and Mexican spurs for a more civic costume.4
After the Territory of Colorado was organized in 1861, Stone was elected as a representative from Park County to serve in the first territorial legislature in 1862, and was re-elected in 1864. From 1862 until 1866, he served as assistant U.S. Attorney for Colorado, under General Samuel E. Browne, who was U.S. Attorney for the Territory. In 1864, Stone wrote and published a description of Mount Lincoln (around which he had spent time prospecting and exploring—he climbed it in 1861), a monument to President Abraham Lincoln. The description "attracted widespread attention, and was universally pronounced the finest example of descriptive writing that the magnificent scenery of the Rocky Mountains has ever called forth."5
Marriage and Pueblo
In the winter of 1865-66, Stone married Sallie Minnie Sadler of Bloomington, Indiana. When he returned to Colorado in the spring of 1866, he and his wife settled in Pueblo, where he opened a law practice. In 1868, Stone was appointed district attorney of the Third Judicial District (Pueblo) and was subsequently elected to that position for a full term. He was treasurer and corresponding secretary of the first Pueblo Board of Trade, organized in 1869. Stone and George A. Hinsdale (whose namesake Colorado county was made famous during the Alfred Packer trial) became the first two editors of the Pueblo Chieftain, a newspaper established in 1868, and Stone continued to serve as editor until 1873. In August 1871, it was reported that Stone had grown "Concord and Rogers grapes," and the Pueblo Chieftain "is confident that the experiment on an enlarged scale will insure to southern Colorado an abundance of grapes equal in size and flavor to those imported from California."6
Also in 1871, Stone and Hinsdale founded a newspaper called The People, about which the Rocky Mountain News reported: "In politics it is to be red hot democratic, unalloyed, devoted especially to the interests of the democratic party and to the welfare of southern Colorado in general."7 The People was published from 1871 to 1875. During these early years in Colorado, Stone wrote numerous articles for territorial newspapers using the nom de plume of "Dornick."
Stone also gave a graphic description of the early-day practice of law in the Third Judicial District:
Over this vast region, larger than an average State, the lawyers with the judge and other court officials, litigants, witnesses, Spanish interpreters and often prisoners for trial, traveled from court to court in a motley caravan of wagons, ambulances, primitive buggies, horseback and mule; over dusty, sage-brush mesas and mountain ranges, fording rivers; in heat, snow, wind and alkali dust; camping out nights where there were found "wood, water and grass"; fishing trout in the mountain streams, occasionally shooting an antelope. Cooking their own "grub," smoking pipes round the campfires, singing songs, swapping lies, sleeping in blankets on the ground; then holding courts within rude adobe walls, attending Mexican fandangos at night—dances got up in honor of the Court—and having more fun, legal and unlegal, than the Bench and Bar have ever seen since in the effeminate days of railroads and fine court houses.8
Stone also painted a wonderful word picture of early-day courts in the Arkansas Valley:
In the first courts ever held in the Arkansas Valley, the judge sat on a small goods box with a larger one for a table in front of him. The lawyers sat on boards supported by boxes or chunks of wood. The others squatted on the dirt floor and leaned against the adobe walls. The judicial robe of old Judge Bradford was oftenest a Mexican blanket. Everybody smoked tobacco pipes during the proceedings.9
Along with Governor A. C. Hunt and General William Palmer, Stone was one of the most active promoters of the Denver & Rio Grande Railway in Pueblo, and was its attorney until he was elected to the Colorado Supreme Court. In 1874, Stone and Henry C. Thatcher10 went to Boston and effectuated an agreement whereby the Atchison, Topeka & Santa Fe Railroad would build an extension from the eastern border of Colorado to Pueblo.
Stone became a member from Pueblo County of the Constitutional Convention. In the winter of 1875-76, the Convention framed the constitution under which Colorado was admitted into the Union on August 1, 1876. He served in the critical role as chairman of the Judiciary Committee at the Convention.
Colorado Supreme Court
In the very first state election in 1876, Stone was nominated as a candidate for Associate Justice on the Colorado Supreme Court on the Democratic ticket. However, the entire Democratic state ticket was defeated. Then, on September 1, 1877, after serving only a few months of a nine-year term on the Colorado Supreme Court, Associate Supreme Court Justice Ebenezer T. Wells resigned, creating a vacancy for the remainder of the term that would have to be filled in the upcoming 1877 elections.11
Representatives of the bar decided to hold a convention in Colorado Springs on September 14, 1877, to be attended by attorneys from both political parties to nominate a replacement candidate. Stone was a favorite of delegates from the southern part of the state, and attorney John Charles of Denver had the support of delegates from the northern part of the state. Stone was nominated on the third ballot by a vote of 34 to 29. A remarkable chapter in Colorado legal and political history then occurred. The lawyers attending the ad hoc nominating convention in Colorado Springs voted to make Stone’s nomination unanimous, assuring that he would run for the Supreme Court unopposed. The Encyclopedia of the New West described the event as follows:
The bar of the state conceiving that the interests of the state, as well as the dignity and purity of the bench, would be best subserved [sic] by keeping the election of the judiciary aloof from the control of party nomination, took the matter in hand and called a convention of lawyers, which met at Colorado Springs, and resulted in the nomination of Mr. Stone. As an act, almost, if not wholly, without precedent in the history of nominations for a state office, and considering that a majority of the members voting in the convention belonged to the dominant political party [Republican] in the state, his nomination was justly regarded by Mr. Stone as one of the highest compliments which could possibly be paid to any lawyer by his professional brethren of an entire state.12
Stone was elected to the Colorado Supreme Court in the 1877 general election by a vote of 22,047 to 295. He moved to Denver and served on the high court until 1886. During some of this time, he was the only Democrat holding a statewide office. However, the spirit of non-partisan support had apparently faded by 1886 when Stone lost his re-election bid for the Supreme Court to Judge Samuel Elbert, by a vote of 26,387 to 31,703.13
In 1887, Governor Alva Adams appointed Stone judge of the Denver criminal court (at that time, Denver was still in Arapahoe County). When that court was abolished by the legislature in 1889, Stone commenced practicing law in Denver. Stone served as president of the Colorado Bar Association in 1908-1909. A long-time member of the Episcopal Church, he served as a senior warden of St. John’s Church in Denver and Ecclesiastical Chancellor of the Diocese Colorado. He also made one of several trips to Europe with his family. Wilbur and Minnie Stone had two children, Wilbur Fisk Stone, Jr. and Sidney Stone.
U.S. Court of Private
In March 1891, Congress established the Court of Private Lands Claims for the purpose of adjudicating Spanish and Mexican land grant titles in accordance with the Treaty of Guadalupe Hidalgo. The court, which consisted of five judges from five different states, adjudicated disputes over title claims in Arizona, Colorado, Nevada, New Mexico, Utah, and Wyoming. Again enjoying the support of both political parties, Judge Stone was appointed to the Court of Private Land Claims by President Benjamin Harrison on June 10, 1891. Because of his familiarity with the west and southwest and his fluency in Spanish, he was considered one of the most effective members of that court (in addition to Spanish, Stone was also accomplished in French and German). Stone was reappointed to the court by Presidents Cleveland and McKinley.
Stone also was appointed by order of the Court of Private Land Claims to research records relating to Spanish land grants in the United States. He traveled to Spain (along with S. Mallet-Prevost, a special assistant to the U.S. Attorney General), where he spent the winter of 1894-95 at the Spanish Royal Archives in Madrid and also in Seville researching the famous Peralta Land Grant claim. The Peralta claim involved over twelve million acres of land in Arizona and New Mexico, where the claimant alleged title to the land given under a 1748 decree by the King of Spain to a Spanish baron. As a result of the research done by Stone and Mallet-Provost, the land grant claim was determined to be fraudulent.14
The Court of Private Land Claims concluded its work in 1904. During its thirteen-year existence, it heard and decided approximately 300 claims involving close to 35 million acres of Spanish and Mexican land grant claims. The majority of claims were rejected because only claims that were based on provable and continuous legal titles originally granted by the Spanish and Mexican governments were recognized.15 After the Court of Private Land Claims concluded its work, Stone again practiced law in Denver until 1915. In 1915, the U.S. Commissioner in Denver, Sanford Hill, died, and Stone was appointed to fill the vacancy. Stone served as U.S. Commissioner until his death in 1920.
Chronicling the History
Stone not only lived and shaped the early decades of Colorado history, he chronicled it. A four-volume history of Colorado written by Stone was published in 1918 and has become an indispensable reference work for history scholars.16 Tom Noel, Professor of History at CU-Denver,17 states, "Stone’s History is a cornerstone of Colorado studies and a path-breaking look at Hispano contributions."18 When Jerome Smiley, another noted Colorado historian, edited his History of Denver, Wilbur Stone was one of the people he called on to read the manuscript and make suggestions.19 Some of the great stories about courts, attorneys, and the practice of law in early-day Colorado surely would have been lost had it not been for Stone.
In 1876, Stone also wrote a historical review about Pueblo for the National Centennial Records in Washington, D.C.20 Indicative of his ongoing interest in Colorado history, Stone was elected a vice-president of the Colorado State Historical Society on January 10, 1881, the day before Stone administered the oath of office, in his capacity as Supreme Court Justice, to Governor Frederick Pitkin, who was beginning his second term.
The Final Chapter
Stone died December 27, 1920, and was buried in Fairmount Cemetery in Denver. Writing about Stone’s last days, the well-known journalist Josiah M. Ward21 stated:
The death of Judge Wilbur Fisk Stone on his eighty-seventh birthday [actually, it was one day before] closed a chapter in Colorado history. He was the last of the pioneer lawyers whose record of activity in the profession dates back to 1860; his was the longest service on the bench; his law from the mastermind which encompassed every phase of the law from the crude machinery of a miners’ court to the most intricate constitutional interpretation. It was fitting that such a man die in harness. On Friday he sat up in bed to conduct, as United States Commissioner, a hearing in a case sent before him. He was the embodiment of justice. His bed was its seat. He listened to the evidence and the arguments, made his notations and—on the Monday following was dead.22
Wilbur Fisk Stone spent much of his life in public service and was, by all accounts, a true gentleman and scholar. His personal integrity was never questioned. Provisions of the Colorado Constitution relating to courts and judges, which Stone helped formulate, served the state well for many decades. Stone also was an extremely intelligent and dedicated jurist, sitting on state and federal courts in Colorado. The writing and publication of his four-volume history of Colorado, which has become an indispensable reference work, was a major accomplishment. When Ralph Waldo Emerson said, "There is properly no history, only biography," he could easily have been talking about the life of Wilbur Fisk Stone.
1. Bishop, ed., "The Passing of the Pioneer," Vol. XIII, No. 8, The Trail (Denver, Jan. 1921). Noted Colorado historian Jerome C. Smiley wrote in 1901: "The life-history of Judge Wilbur Fisk Stone is one of unusual interest." Smiley, quoted in Smiley, ed., "History of Denver," The Denver Times (Denver, CO: The Times-Sun Pub. Co., 1901) at 676.
2. Vickers, History of the City of Denver, Arapahoe County and Colorado (Chicago, IL: Baskin & Co., 1880) at 573.
3. Others on the pilgrimage to Colorado that season included David Moffat and Alvin Marsh. Moffat became president of the Denver & Rio Grande Railroad, and Marsh became Colorado Attorney General. See an article on Wilbur Fisk Stone in Magazine of Western History, Vol. IX (New York, NY: Magazine of Western History Pub. Co., Nov. 1888-April 1889) at 770.
4. Quoted in Louise C. Stone, "First Impressions: Judge W. F. Stone’s Letters on His Trip to Colorado—1860, Letters of Judge Wilbur Fisk Stone," for Colorado History Class 360, Metropolitan State College (Prof. Tom Noel) (May 1977) at 4-5. Louise Stone is a granddaughter of Wilber F. Stone.
5. Vickers, supra, note 2.
6. Rocky Mountain News (Aug. 26, 1871) at 1, c3.
7. Rocky Mountain News (Sept. 26, 1871) at 1, c3; Daily News (March 2, 1872) at 2, c5.
8. Stone, "Pioneer Bench and Bar of Colorado," Report, Colorado Bar Association, Eleventh Annual Meeting, Fort Collins (July 2 and 3, 1908) at 110.
9. Address of Hon. Wilbur F. Stone at the Inauguration of the Reorganized Supreme Court, 34 Colo.Rep. (April 5, 1905) at xxxii.
10. Thatcher served on the Colorado Supreme Court from 1877 to 1879.
11. The first Colorado state constitution provided that the first three judges elected to the Colorado Supreme Court would serve for three, six, and nine years, respectively, and, further, that after they were elected, the length of their respective terms would be determined "by lot" or lottery. As required in the Colorado Constitution, after the three judges were elected, they would get together and "draw straws" to see which of them would serve for three, six, or nine years and report the results to the Secretary of the Territory (State). See Smiley, ed., supra, note at 1 at 712.
12. Speer and Brown, eds., The Encyclopedia of the New West (Marshall, TX: The United States Biographical Pub. Co., 1881) at 23.
13. Dill, The Political Campaigns of Colorado (Denver, CO: Arapahoe Pub. Co., 1895) at 113.
14. For a review of Stone and his efforts researching the Spanish Peralta land grant, see articles by Josiah M. Ward in The Denver Post, Jan. 9-23, 1921, which may be found in the Dawson Scrapbooks, Vol. 31 (Denver, CO: Colorado Historical Society) at 5-15.
15. The court has been criticized because of the restrictive legal standard it used in determining the validity of grants and of ignoring the Hispano concept of community land grants and ownership. See Van Ness and Van Ness, eds., Spanish & Mexican Land Grants in New Mexico and Colorado (Manhattan, KS: Sunflower University Press, 1980) at 10.
16. Stone, ed., History of Colorado, Vols. 1-4 (Denver, CO: S. J. Clarke Pub. Co., 1918).
17. Noel also is the author of numerous books on Colorado and writes the Saturday Rocky Mountain News/Denver Post "Dr. Colorado" column.
18. Tom Noel, May 15, 2002, e-mail.
19. Smiley, ed., supra, note 1 at 15.
20. Byers, History of Colorado, Vol. 1 (Chicago, IL: The Century Publishing and Engraving Co., 1901) at 450.
21. For more about this colorful journalist, see Fowler, Timber Line (Garden City, NY: Garden City Books, 1951, rep. ed.) at 125-33 and 343-45.
22. The Denver Post (Jan. 9, 1921). A copy of this story may be found in the Dawson Scrapbooks, Vol. 31 (Denver, CO: Colorado Historical Society) at 5.