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President Benjamin Harrison, Judge A. A. Freeman and the Shalam Colony
By Mark Thompson
As the comprehensive bibliography in the Rio Grande Historical Collection of the New Mexico State University Archives shows, the 19th Century Shalam religious colony near Doña Ana is the subject of many fascinating stories. Less often told, perhaps, is the story of litigation involving the colony, the legal and political fallout that may or may not have occurred as a result, and the surprising legacy of the New Mexico Supreme Court opinion ending the litigation.
The colony had become a reality by 1884 and in 1887 one of the disgruntled colonists sued, seeking money damages for wrongs committed by the leaders. Jessie Ellis alleged that John Newbrough and A.M. Howland had knowingly and falsely asserted: (1) that the property of the colony would be held in common; (2) that the community would be governed by brotherly love, without a leader; (3) that all members would have an equal, permanent place in the colony; and, (4) that the community was based on principles of sound morality and purity of life. Because he had relied upon these false statements, and because he also alleged that the defendants had not delivered on a promise of payment for his work, Ellis claimed he was entitled to $10,000.00.
Represented by prominent Las Cruces lawyer, Simon Bolivar (“S.B.”) Newcomb, the defendants answered with a “demurrer,” a pleading that asks the court to dismiss the case on the grounds that, even if all the “facts” alleged are true, the plaintiff has not stated a proper (legal) “cause of action.” (In modern pleading terminology, the complaint “fails to state a claim upon which relief can be granted.”) The defense is important for understanding the legal issues involved in the case, something which gets lost in the entertaining appellate opinion. The district judge did not dismiss the case and, after a trial in May 1888, a jury awarded Ellis $1,500.00. Because it was a “general verdict,” we will never know what part of Ellis’ claim the jury believed had been proved. The defendants appealed, but the matter languished in the Supreme Court until August, 1891.
While the appeal was pending, Congress increased the number of New Mexico territorial judges by creating the 5th Judicial District. President Benjamin Harrison offered the position to the recently retired, long time Speaker of the U.S. House of Representatives, Thomas B. Reed of Maine, who turned it down. In October of 1890, A. A. Freeman, then in private practice in Washington, D.C. after a seven year term as an Assistant U. S. Attorney General, accepted the offer. At its creation, the district was comprised of Socorro, Lincoln, Chaves and Eddy counties. Much to the consternation of the southeastern New Mexico lawyers, Socorro became the headquarters for Judge Freeman. Because the territorial judges served as both trial (district) judges as well as appellate (Supreme Court) judges, Freeman also took his place on the appellate court and was assigned the task of writing the opinion in the appeal of Ellis v. Newbrough.
Alfred Alexander Freeman was no legal or political novice. Born in Haywood County, Tennessee on February 7, 1838, he was admitted to the Bar at age 21. A Union supporter during the Civil War, he was first elected to the state legislature in 1865. After an unsuccessful race as the Republican candidate for governor of Tennessee in 1872, he accepted appointment as U.S. Consul in Prague, but resigned the post after a few months. Returning to Tennessee he was again elected to the legislature in 1876, resigning the next year to take the position in the Justice Department in Washington.
The opinion of Judge Freeman, issued by the New Mexico Supreme Court August 19, 1891, defies easy summary. Lee Priestly probably did the best job, calling it “ten rollicking pages of ridicule.” Judge Freeman, it can be argued, summarized the case thusly: “What the declaration [complaint] leaves as uncertain, the proof [evidence presented by the plaintiff] makes incomprehensible. If the court below had been invested with spiritual jurisdiction, it might have been enabled, through an inspired interpreter, to submit to a mortal jury the precise character of plaintiff’s demand.” As will be seen by later use of the opinion by other courts, Judge Freeman could have skipped to the conclusion: “We are of the opinion that a proper cause of action was not set out in the declaration … and the judgment of the district court should be reversed.” Unfortunately, perhaps, he proceeded to mock the religion of the parties, thereby laying the foundation for the assertion that he so displeased President Harrison that he almost lost his job as a territorial judge.
Benjamin Harrison was certainly a straight-laced and proper lawyer; some persons apparently described him as the dullest personality ever to inhabit the White House. As a young man, he almost chose the ministry instead of law. He and his first wife Caroline both had a strong allegiance to the Presbyterian Church and he served as an Elder for almost forty years. Consequently, it is easy to believe that he would find an appellate opinion mocking religion improper. But in 1948, the former librarian of the New Mexico Supreme Court, Arie W. Poldervaart, claimed that the President was so deeply disturbed that Freeman “nearly lost his place upon the court.” A search for evidence of Harrison’s displeasure, an examination of the law governing territorial judges, and, a review of Harrison’s personal and political situation in 1891-92, leads me to doubt that Judge Freeman’s job was truly in jeopardy.
How did President Harrison make known his displeasure with Judge Freeman? A study of how the Shalam Colony was treated by the Rio Grande Republican does not mention the case or Judge Freeman’s opinionand my own review of that and Santa Fe, Carlsbad and Albuquerque newspapers, limited to late 1891 and early 1892, turned up no stories. If the index of the Harrison papers is reliable, the President never wrote Judge Freeman, New Mexico Chief Justice James O’Brien or Governor L. Bradford Prince during that same period. Although the President and Secretary of State James Blaine often discussed political appointments, I found nothing in their correspondence between August, 1891 and June, 1892. None of this proves that Harrison did not in some way express his displeasure, but it might speak to the supposed notoriety of the whole affair.
Territorial judges were appointed by the president with the advice and consent of the senate but did not have lifetime tenure. They were known as “legislative judges,” with whatever status and jurisdiction Congress chose to give them. As in Judge Freeman’s case, they were usually appointed “for the term of four years, and until his successor is appointed and qualified.” Their lack of constitutional status did not mean Congress was unconcerned about their judicial independence. The Act of Congress creating the territory of New Mexico, commonly known as the “Organic Act,” provides a good example. The appointment of judges for four years is contrasted with the appointments of governor, secretary, U.S. Attorney and U.S. Marshall. These executive branch officers were appointed to a term of four years “unless sooner removed by the president of the United States.” At least three U.S. Supreme Court Justices found this distinction significant, describing New Mexico as having judges appointed for an “absolute” four year term.
Even if Harrison did not seek a formal legal opinion on his authority to fire a territorial judge, he was undoubtedly aware of an opinion of the U.S. Supreme Court issued just three months before Judge Freeman’s opinion in Ellis. President Cleveland had “suspended” Judge McAllister of Alaska pursuant to the Tenure of Office Act in July, 1885. By the time the appeal reached the U.S. Supreme Court the statute had been repealed, but the court held that the Tenure of Office Act had indeed applied to territorial judges in 1885 and that Cleveland had acted lawfully.[ In addition, the court correctly noted that “[w]hat ever may be the powers of the president over territorial judges, now that [the Tenure of Office Act] is repealed, we need not now discuss.” No other territorial judges gave the court the opportunity to discuss the issue, but in 1897 the court explained that McAllister held that “prior to the repeal of [the Tenure of Office Act, a territorial judge] was subject to removal before the expiration of his term of office.” Nevertheless, at least one lawyer/law professor/historian asserts that, based upon McAllister, territorial judges were subject to removal at any time.
Finely-tuned legal arguments do not always prevail in a confrontation with political reality and the relationship of President Theodore Roosevelt with New Mexico territorial judges provides two examples. The first might be considered fairly straightforward: the firing of Benjamin Stanton Baker in 1904. Baker, from Nebraska, was appointed by Roosevelt in December 1901 and was the resident judge in Albuquerque when he was abruptly dismissed in December 1904. Although he had apparently incurred the wrath of Governor Otero, and the Albuquerque Journal said his “passions and prejudices” were so strong they controlled his judgment, it was not entirely clear what brought about the removal. Having apparently declined to resign quietly before the order was issued, Judge Baker was able to convince the President to retract the order of dismissal and he then resigned.
If the first example was simply “resign or be fired,” the second bordered on the bizarre. President McKinley had appointed Daniel Hugh McMillan of New York in December 1900 but by the fall of 1902 the Justice Department had opened an investigation of McMillan based upon allegations of “inappropriate” sexual activities. A lengthy process followed, ending about April 1, 1903, with McMillan confident that he had refuted the case against him. On June 22, 1903, Roosevelt announced that he had removed McMillan from office and appointed Clement C. Smith of Michigan to the position. The new appointment caught the Attorney General, who apparently had his own favorite, by surprise and enraged Bernard Rodey, the territorial delegate to Congress, because Rodey wanted a New Mexican in the position. In the meantime, former Judge McMillan, who had been removed “on a charge of general immorality,” appealed, not by filing a legal action but by attempting to have the U.S. Senate review the matter when it reconvened later in the year. The Senate never took up the matter and on October 7, 1903, New Mexican William H. Pope was named to the judgeship, Rodey apparently persuading the President and the Attorney General.
If the two “Roosevelt” cases confirm our suspicion that U. S. Presidents usually get their way, it seems ironic that Baker and McMillan get a pass from historians while the legend persists that Judge Freeman almost lost his job. Professor Poldervaart does not even mention Judge Baker or Judge McMillan in his history of the territorial court; much less discuss their “removal.” Professor Weihofen, in the history of the United States Court of Appeals For the Tenth Circuit, does not say anything about the removal but does say that Baker was “eminently able” and that McMillan “showed solid integrity and a sound grasp of the problems presented by the cases” and also “had a strong sense of social responsibility …”
No doubt Benjamin Harrison could have demanded Judge Freeman’s resignation, but his personal and political distractions during the period after the issuance of the Ellis opinion in August of 1891 should raise doubts about the extent of his engagement on the Freeman matter. Harrison’s wife, Caroline, had been diagnosed with tuberculosis and he cut back on travel outside of Washington that fall. During this time, with major foreign policy matters such as turmoil in Venezuela and Hawaii on his plate, his relationship with Secretary of State James G. Blaine deteriorated. Blaine resigned in June of 1892, and challenged Harrison for the Republican Party nomination. Harrison won the nomination but because of Caroline’s health, he refused to campaign. His opponent, Grover Cleveland, out of respect, likewise did not campaign. Caroline died in late October, just days before the election won by Cleveland.
Judge Freeman served until his successor was appointed by President Cleveland and qualified for the office in early 1895, slightly more than his “absolute” four year term. Contrary to the assumption that he had made his home near his Socorro headquarters, Freeman had purchased land from John A. Eddy in the county named for the Eddy brothers in 1891. In April of 1893, his daughter, Beatrix, married lawyer James O. Cameron in the Grace Episcopal Church in Carlsbad, then known as Eddy. When his term as judge ended, Judge Freeman entered into the private practice of law with his son-in-law in Eddy.
Judge Freeman apparently enjoyed the respect of both the legal and political communities. He served as President of the New Mexico State Bar in 1900 and that year was appointed by Governor Otero to the “Blue Ribbon” committee of prominent New Mexicans sent to Washington to lobby against a bill that would have given the State of Texas effective control over the water of the Rio Grande River. In 1904, Congress again created another territorial judgeship in New Mexico and Freeman was suggested for the position that eventually went to Las Cruces lawyer, Edward A. Mann. That same year his son Hugh, who had recently joined the law firm, died in an accident on his farm. In late 1907, the Freeman and Cameron families pulled up stakes and moved to British Columbia to engage in the lumber business. Alfred Alexander Freeman died in Victoria, B.C. on March 27, 1926.
Before considering the possible legacy of Judge Freeman’s opinion in the Shalam case, it is necessary to state what it was not-- “a leading case on the legal doctrine of estoppel,” as claimed by Professor Poldervaart in 1948. First, it could not be leading because it has never been cited as authority on the estoppel principle by any appellate court. That fact is easily shown by reference to the Shepard’s/McGraw Hill Citator, used by lawyers since the early 20th Century to determine the subsequent history of appellate opinions. Second, the other three judges considering the case with Judge Freeman refused to concur in his opinion, joining only in the result, the reversal of the district court. In other words, it was not the opinion of “the court” and would not be considered “precedent.” Third, the decision did not prevent recovery by Ellis based upon evidence of his conduct or silence, the definition of “equitable estoppel.” The court, i.e. all judges, held that his complaint was legally deficient and the case should have been dismissed at the outset. Yes, Judge Freeman did discuss the conduct of Ellis, saying that Ellis should have known better and that he was complicit in the “fraud.” But the Freeman comments are more than mere obiter dicta, i.e., comments not essential to the decision; they are satire
History has made its judgment on the legacy of the opinion, however, and it is favorable. No less than five state courts have cited Ellis in dealing with legal actions raising a serious problem under the First Amendment to the United States Constitution: are the civil courts qualified to resolve theological or doctrinal issues in order to determine if a religious organization has breached a contract or committed a wrong against one of its members, employees or members of the general public? Unless you are one of the persons claiming harm, most U.S. citizens are probably thankful that the courts have answered the question in the negative, adopting what has become known as the “church autonomy doctrine.” Judge Freeman did not know the doctrine title, but he described it well, if poetically: “If the court below had been invested with spiritual jurisdiction, it might have been enabled, through an inspired interpreter, to submit to a mortal jury the precise character of plaintiff’s demand.” It was not so invested and Mr. Ellis was shown to the courthouse door.
Mark Thompson practiced law in New Mexico for 30 years and writes about the history of New Mexico law and lawyers for the State Bar Bulletin. This article is an adaptation of an article which appeared in the State Bar Bulletin in January, 2007.
Reprinted with permission from the Southern New Mexico Historical Review. No further replication or reproduction is permitted without the written consent of Southern New Mexico Historical Review. http://www.donaanacountyhistsoc.org/
 The bibliography compiled by Linda Blazer may be accessed online at archives.nmsu.edu.
 “SHALAM. The Name of a New Colony Just Started Near Dona Ana,” The Rio Grande Republican (October 11, 1884), p. 1. See generally, Kathryn D. Stoes, The Land of Shalam, 33 N.M. Hist. Rev. 1 & 103 (Jan. & April 1958) and Lee Priestley, Shalam: Utopia on the Rio Grande, 1881-1907. (U. T. El Paso: 1988).
 I have relied on both the Supreme Court opinion, Ellis v. Newbrough, 6 N.M. 181(1891), and Elnora W. Wiley, Inside the Shalam Colony (Los Alamos, N.M.: privately printed, 1991), pp. 57-60, for the description of the case in the district court.
 Act of July 10, 1890.
 Albert T. Volwiler, The Correspondence Between Benjamin Harrison and James G. Blain, 1882-1893 (Philadelphia: The Amer. Philosophical Soc., 1940), p. 127.
 “Judge Freeman,” The Eddy Argus (November 1, 1890), p. 1.
 “The Fifth Judicial District,” The Eddy Argus (August 1, 1890), p. 1.
 “Judge A.A. Freeman,” The Eddy Argus (February 14, 1891), p. 1.
 Priestly, note 2 supra at p. 23.
 Ellis v. Newbrough, 6 N.M. at 184. (emphasis added).
 Homer E. Socolofsky & Allan B. Spetter, The Presidency of Benjamin Harrison (U. of Kansas Press; 1987), p. 7.
 Arie W. Poldervaart, Black-Robed Justice, 23 N.M. Hist. Rev. (Jan. 1948), pp. 47-49. Subsequent writers rely on Poldervaart for this assertion and I have found no earlier claim in writing. See e.g., James K. Logan, ed., The federal courts of the Tenth Circuit: a history (Denver: U. S. G.P.O., 1992), p. 248. (chapter by Henry Weihofen).
 Daniel Simundson, Strangers in the Valley: The Rio Grande Republican and Shalam, 1884-1891, 45 N.M. Hist. Rev. (1970), pp. 197-208.
 Library of Congress, Index to the Benjamin Harrison Papers (Washington, D.C.: G.P.O, 1964), pp. 96, 217 & 235.
 Note 5, supra.
 Note 4, supra, § 2. The first four territorial judges in New Mexico, as well as the three judgeships created after 1890, had four year appointments.
 Act of September 9, 1850. Compare sections 10 and 12 with sections 3, 4 and 11. (Section references to the Organic Act as compiled with “historical documents” in the New Mexico Statutes Annotated, 1978 edition.)
 Wingard v. United States, 141 U.S. 201 (1891), Justice Field, joined by Justices Gray and Brown, dissenting. Justice Field thought the territorial organization acts trumped the Tenure of Office Act.
 McAllister v. United States, 141 U.S. 174 (1891). Judge McAllister had only sued for his unpaid salary, not for reinstatement. The case of the Washington territory judge, Wingard, who also lost his action for unpaid salary, was decided as a companion case to McAllister and was also controlled by the Tenure of Office Act analysis.
 Parsons v. United States, 167 U.S. 324, 337 (1897). Parsons was the U.S. Attorney for the Northern and Middle districts of Alabama. The opinion is well worth reading for its history of the Tenure of Office Act and its use by Congress in the impeachment of President Andrew Johnson.
 See e.g., Logan, ed., 10th Circuit history, note 12 supra at p. 12. (chapter by Paul E. Wilson).
 “JUDGE BAKER REMOVED BY ORDER OF THE PRESIDENT. Friends Say Order is Severe Surprise,” The Albuquerque Morning Journal (December 10, 1904), p. 1.
 Miquel A. Otero, My Nine Years as Governor of the Territory of New Mexico, 1897-1906 (Albuquerque: U. of N.M. Press, 1940), p. 328.
 “WILL BE NO HEARING IN BAKER CASE. Rodey Informed That Matter Is Closed,” The Albuquerque Morning Journal (December 11, 1904), p. 1.
 “JUDGE BAKER ALLOWED TO RESIGN FROM OFFICE,” The Albuquerque Morning Journal (December 20, 1904), p. 1.
 Otero, note 23 supra at p. 327. Keeping with the tradition of the time, the newspaper articles on McMillan are short on details of his wrongdoing. Otero, whom historians usually take with a “grain of politics,” thought Roosevelt had “treated Judge McMillan shamefully.”
 “He Has Not Resigned,” Albuquerque Journal-Democrat (April 9, 1903), p. 5.
 “M’MILLAN’S HEAD FALLS,” Albuquerque Journal-Democrat (June 23, 1903), p. 1.
 “Rodey Makes Stormy Kick,” Albuquerque Journal-Democrat (June 25, “Rodey Makes Stormy Kick,” Albuquerque Journal-Democrat (June 25, 1903), p. 5.1903), p. 5.
 “WILL APPEAL TO THE SENATE. Judge McMillan Disappointed With Decision of Department of Justice,” Albuquerque Journal-Democrat (June 26, 1903), p. 1.
 “Judge William H. Pope of Santa Fe Selected by President Roosevelt For Supreme Bench in New Mexico,” The Albuquerque Morning Journal (October 8, 1903), p. 1. Bernard Rodey, following Judge Pope’s death, took credit for the appointment. “A Friend’s Tribute to the Late Judge Pope,” Santa Fe New Mexican (September 17, 1916), p. 4.
 Logan, ed., 10th Circuit History, note 12 supra at p. 256.
 Socolofsky & Spetter, note 11 supra at p. 92.
 “Eddy County Deeds,” The Eddy County Genealogical Society, Pecos Trails (Vol. VII, 1987), p. 32.
 “Book A-1, Records of Eddy County,” The Eddy County G. S., Pecos Trails (Vol. I, 1981), p. 82.
 “Professional Card: Freeman & Cameron,” The Eddy Weekly Current (May 16, 1895), p. 3.
 Miquel A. Otero, note 23 supra, at p. 28. DoñaAna County lawyers, S. B. Newcomb, A.B. Fall and W.H.H. Llewellyn were also members of the committee.
 “Freeman Endorsed. Roswell Bar Favors Him for Judge of the New District,” The Carlsbad Argus (May 6, 1904), p. 2.
 “Conquering Death Summons Hugh Freeman,” ibid at p. 4. The other Freeman son, Elmore, died by suicide in 1903. “By His Own Hand,” The Carlsbad Argus (October 9, 1903), p. 1.
 “The New Law Firm: Judges Grantham and Dye Form Law Partnership and Succeed Freeman, Cameron & Fullen,” The Carlsbad Argus (February 14, 1908), p. 2. See also, James Oscar Cameron household, 1911 Census of Canada, British Columbia population schedule, Victoria District 13, sub-district 14, page 12, dwelling 112, family 114; microfilm ed., Library & Archives of Canada, Ottawa.
 The only opinion citing Ellis v. Newbrough for something close to “estoppel,” was by a court of appeals in Illinois which used Ellis for the proposition that some statements are of such an improbable sort that a reasonable person is not entitled to rely on them. Mother Earth. Ltd. v. Strawberry Camel, Ltd., 390 N.E. 2d 393, 405 (Ill. App. 1979).
 Cf., Chadwick v. Public Serv. Co. of N.M., 105 N.M. 272, 274 (Ct. App. 1986).
 State v. Amana Society, 109 N.W. 594 (Iowa 1906); Williams v. Johnston, 104 N.W. 789 (Ark. 1907); Ruse v. Williams, 130 Pac. 887 (Ariz. 1913); State ex rel. Chamberlain v. Hutterische Bruder Gemeinde, 191 N.W. 635 (S.D. 1922); and, Seventh Elect Church in Israel v. First Seattle Dexter Horton Nat. Bank, 10 P.2d 207 (Wash. 1932).
 Celnik v. Congregation B’Nai Israel, 139 N.M. 352 (Ct. App. 2006). It should not be a surprise, given the history discussed above, that the Ellis opinion was not recognized as a prior New Mexico case on the subject.