Hugh N. Smith, New Mexico’s First Attorney General

T. Edward Shumaker

As a young man of about twenty-six, Hugh N. Smith enlisted in the army to serve with Colonel Alexander Doniphan (1808-1887) in the US-Mexico War. The war had broken out between the two North American republics in 1846, the same year that Kearny arrived in Santa Fe and proclaimed the new rule of the United States. Kearny promised not only law and order but also to respect the rights, privileges, religion, and language of New Mexico. In return he demanded only loyalty and quiet obedience to the new order. Smith had attended Transylvania College (now Transylvania University in Lexington, Kentucky) and served as a lawyer before he entered the military. He served under Colonel Doniphan until January 1847. The Peace of Guadalupe Hidalgo, formally proclaimed on 4 July 1848, ended the war. New Mexico, together with a vast swathe of territory, passed under the control of the United States. After his discharge, Smith remained in New Mexico, resuming the legal profession.

Between 1846 and 1849, New Mexico was under military rule, the fundamental law of the time being the Kearny Code, which provided a bill of rights and provisions of civilian government within the province. Governor Charles Bent (1799-1847) had Smith in mind for the office of attorney general.[1] It is unclear when Bent appointed Smith to this office, although it was some time before 19 January 1847, when Bent was killed in the Taos Rebellion. Regardless of the precise time Bent appointed him to the post, Smith accepted and served in this capacity until 1848. It appears that during the course of the year 1848, Smith was elected to the office of representative from New Mexico to the Federal Congress in Washington, D.C.[2] A provision of the Kearny Code called for the organization of some form of civilian government. In an address to Congress on 4 April 1850, Smith argued that he should be admitted and that Congress should recognize some form of civilian government for the province of New Mexico. He cited the historical existence of a provincial legislature under the Mexican Republic, as well as the fact that New Mexico had sent a representative south to the Mexican Federal legislature in Mexico City.[3] Despite his eloquent attempt, Congress refused his request, resolving that “it is inexpedient to admit Hugh N. Smith, esq., to a seat in this House as a delegate from New Mexico.”[4] The reason stated was that the there was no formal, recognized government in New Mexico–at least none recognized by Washington. Change, however, came swiftly to New Mexico.

The Compromise of 1850 (passed in September of that year—six months after Smith’s attempt to procure Congressional representation) permitted New Mexico to become a formal territory of the United States.  At this point, the details of Smith’s life and career become rather obscure. He participated in crafting laws of great import for the territory of New Mexico, but his activity during the years 1853 to 1858 are largely unknown.[5] Smith was reconfirmed as attorney general in February 1859.[6] Abraham Rencher was then governor of the territory (1857-1861). This must indicate the high esteem that Rencher held for Smith during his time in office. Smith’s second term as Attorney General of New Mexico was of short duration. He died suddenly on Monday, 12 September 1859 after an illness described as being brought on by an “apoplectic fit.”[7]

 The esteem in which he was held can be seen from the tributes the people of Santa Fe, the New Mexico Bar Association, and the Masonic Lodge paid to their deceased colleague and friend. The article below appeared in the Santa Fe Gazette on 24 September 1859. The style of the prose, the flowery orations, and solemn resolutions, are typical of nineteenth-century cultural attitudes and practices in the United States.

Death of Hugh Smith Esqr.

Upon us involves the painful and melancholy duty to announce to our readers the death of Hugh N. Smith Esqr., Attorney General of the Territory of New Mexico. He departed for the eternal mansions, on Monday, the 12^th inst., at six o’clock A.M. after a contracted illness of about two days, the consequence of an apoplectic fit. We do not believe it is necessary to add anything to the proceedings of the District Court, the resolutions adopted by the Masonic fraternity and those adopted by a public meeting held in this city: they give ample testimony of the high estimation in which the deceased was held by the citizens of this Territory in his…vocations of life, and the deep sorrow they evince at his loss.

Mr. Smith was born at or near Danville, Kentucky, and was between 37 or 38 years of age. He graduated at Transylvania College, Lexington, Ky. And entered upon the legal profession. He came to Santa Fe, N.M. as a volunteer in Col. Doniphan’s regiment in 1846, and having received his discharge shortly after the Battle of Taos, re-entered upon his profession immediately after the organization of the Territorial Government under the Kearny Code. He was appointed Attorney General by Governor Bent, which office he held until 1848 when he was elected [as a senator].[8] In 1851 he was re-elected as a Senator from the central District of the Territory, which office he held for two years, during which time he was instrumental in passing some of the most important laws, now upon our statute books.

In February last, he was again appointed by the Governor, by and with the advice of the Senate, Attorney General for New Mexico; engaged in the faithful discharge of his duties he was suddenly summoned to appear before the celestial tribunal and thus ‘escaped from our grief into the Halls of the Blest.’

Besides his numerous friends in this Territory, his aged parents and three brothers (who live near Lexington in the State of Missouri) weep over his grave.

‘In vain, oh! How vainly,
Flow tear upon tear!
Human woe never waketh
Dull death’s heavy ear!
Yet say what can soothe for an ever vanished love
And I, the Celestial, will shed from above
The balm for your hearts.

We invite the attention of our readers to the following proceedings and resolutions of the District Court, the Masonic Fraternity, and the citizens of Santa Fe.

U.S. District Court, September Term, 1858, Santa Fe:

Proceedings and Resolutions upon the death of Hugh N. Smith Esq. Attorney General of this Territory.

Upon the record of yesterday, being this morning, read and signed:

A.M. Jackson, Esq., Secretary of the Territory and an Attorney of this court rose and announced that Hugh H. Smith, Esq., Attorney General of New Mexico at his residence in this City, and at about six o’clock in the morning of this day, had, suddenly after an illness of about thirty one hours, departed this life. Furthermore, that a meeting of all the Members of the Bar now present in this City had just been held, and that a series of resolution had been unanimously adopted and that he had been designated to announce to the court the deeply painful and melancholy decease, and to move that the court by its order cause said resolutions to be spread upon the record as a part of this day’s proceedings, and which motion be then made, and accompanied the same with a strain of remarks, beautifully eulogistic, upon the life, virtues and character of the deceased. Theodore D. Wheaton and Merrill Ashurst Esqs., each of whom had filled the office of Attorney General, now also each paid their tribute of respect to the virtues and memory of their deceased professional brother.

Chief Justice Benedict then said:

Gentlemen:

I receive the announcement just made with feelings of distressing melancholy. This event is so sudden, so unexpected and heavy, that it overwhelms us with grief. We are unprepared, to estimate the greatness of our loss. As yet, we cannot fully realize how deeply we are wounded by this blow. I will trust myself, with a few glances at the virtues and character of the deceased. The beautiful tributes just paid by three distinguished members of this bar, to the memory of their daily associate and friend, have sounded gratefully upon my spirit, in the midst of this bereavement. I sympathize with them in the just, kindly, and generous sentiments they have uttered. It is now more than six years, since I arrived in this place, to enter upon the performance of the duties of the Bench, in New Mexico. To me, as Stranger and a Judge, the honor, the professional standing, the character, deportment and qualifications of the Members of the Bar, with whom I must become intimately connected, were among matters of my first solicitude. During the first hour of my arrival, I met Hugh N. Smith, then in all the glow of health and ambition, hope and promise, now smitten to his shroud, his coffin and his grave. My knowledge of his worth and eminence had preceded my personal acquaintance with him. In the change of government, from Mexican to American rule, the part he took, in forming and in administering the civil branches of the new government, in its different departments, had passed into fame and history. We met as friends, and through all the varying circumstances of this trying country, so remained to the last moments of his life. He received me with that gentleness and courtesy that in all his walks of life ever threw such a charm about his presence. I at once, felt myself drawn towards him, with feelings of person attachment, confidence and admiration that never lessened and for the indulgence of which I never had cause to regret. His large practice brought him in close contact, with my official acts. He became one of my companions in my judicial services throughout the territory. Whether at the North till Taos, or at the South till Mesilla, his companionship was sure to be present, increasing the interest of the courts and enlivening the incidents of travel. I watched and studied his points, his character. Nature endowed him, with a bright, quick, keen and strong intellect. His understanding was large, active and penetrating. It had a native polish and dignity. He had been well trained and educated, in early life, in mind and manners and had a fine legal preparation, previous to his entry into the practice of his profession. In the court house—in his causes, he was especially distinguished, for the capacity, closeness and power, with which he analyzed and investigated the most difficult legal questions that presented themselves for his consideration. From the District Benches and in the Supreme Court, he ever gained careful attention. All this may be justly said, of many who death sweeps away. It was the high qualities of the heart and soul that gave the lamented Smith such preeminence among his fellow men. In this, take him all in all, his was a character, we rarely see, in more (?) full dimensions than he exhibited. He combined a courtesy, a boldness, a generosity and magnanimity of spirit, that would have added luster to men of highest eminence. With an intuitive perception of right and justice, he was courageous and true. With such qualities he could not be any second rate man. There was no envy of high qualities in others, no littleness or mean jealousies in his breast and conduct that so degrade and so often destroy the usefulness of inferior souls. His was the chivalric, reliable, truthful character. When with him, you might ever feel safe in his unblemished honor, his tried…unbending integrity. When he talked with you, and told you something as true, you could know that what he assured you was so, or that he believed that it was so, and then he would stand by and act up to his word and promises, his profession and sentiments. He had no part of the curse upon him of the one in ancient story, whose curse it was never to be believed when he spoke the truth. These things gave him his great weight, his influence and popularity with his countrymen. Hence he was a man to be consulted when any important move was to be made in the public and political affairs of the Territory. Indeed, the history of New Mexico cannot be faithfully written, since the establishment of American rule, without giving a prominent place to our deceased friend. Indulge me an allusion to his social virtues. I have mentioned his courtesy, that sure attendant of every truly brave, generous and lofty spirit. His kindness and charity were free from all sordid calculation. They went with him in his fine and noble bearing as part of his nature. Fond of social life, and ever a favorite in its circles, no one can be more missed from this city, where he had so long dwelt. With all his gentleness of demeanor, no one had a stronger inward sense of personal pride of character, in its best sense, and of self-respect, and none more read to maintain his dignity and honor.

This now is Tuesday morning. On Saturday last, late in the afternoon here he stood maintaining his country’s laws, in the prosecution of an indictment for murder. How little we then thought, that we no more should hear his voice, or see his manly form in this Courthouse. On that day, at my order I could hear the crier call his name, as he would be required, form his duties, with the grand jury—see him enter and take his place among his brethren, but he will come at this court’s call, no more. He has answered to the summons of the Court of Heaven, and left us to weep over his absence. No sound less than the Archangel’s voice that the living and the dead shall hear, can reach the sleep, last sleep of Hugh N. Smith. That star that shines with so much brightness in our midst has been moved from our sphere, and taken its more glorious flight, to a resting place with loftier and purer spirits, and while we remain in this cold, dark, sad world, let us humbly bow before the Chastener who has so sorely smitten us.

            In conformity with your request, your resolution shall be spread upon the Record and in honor to the deceased, this court doth now adjourn.

            A meeting of the Bar of the Territory of New Mexico in attendance upon the District Court for the County of Santa Fe, at the September Term 1859, the following Resolutions were unanimously adopted:

1. This Bar has learned with emotions of sincere sorrow the decease of their brother and friend, Hugh N. Smith Esq. Attorney General of the Territory of New Mexico.
2. That by this event this Territory has been deprived of an efficient and faithful officer, this Court of one of its most eminent Counsellors, this Bar of one of its most esteemed members, and this community of one of its most valued citizens.
3. That the members of this Bar bear their undivided testimony to the great ability and unimpeached fidelity with which our deceased friend and brother was discharged in life the responsible duties of the several high public trusts confided at various times to his hands; to the capacity and courtesy which characterized his professional career; and to the honorable, and generous principles which distinguished him as a man.
4. That this Bar offer their sincere condolence to the parents and relatives of the deceased in the sad bereavement inflicted by this premature and deplorable event.
5. That this resolution be presented to the Court and by it permission be spread upon its record, and that a transcript of the same under the seal of the Court be forwarded to the father of the deceased, by the Clerk of this Court.
6. That the Hon. Kirby Benedict, Chief Justice presiding, be requested so to adjourn this court, as to permit the attendance of the members of the Bar and others concurred upon the interment of the deceased.

RESOLUTIONS

Of Montezuma Lodge No. 109 Ancient Free and Accepted Masons, passed at a special meeting held at Santa Fe, New Mexico on the 14^th day of September 1858, in respect to the memory of Hugh N. Smith, deceased Master of said Lodge.

Be it resolved:

1^st. That to the dispensation of the Grand Master of the Universe, who has suddenly summoned from the control of our council, and the scenes of his labors, our beloved Master, this Lodge submits with resignation, but deplores with grief—

2dn. That by the lamented event, the chastening had of an All-wise Providence, has bereft this Lodge of one of its brightest ornaments, and best workmen, but has left to us, its members, the melancholy but pleasing duty of attesting the many virtues, and high qualities which adorned him as a Mason and ennobled him as a Man.

3^rd. That in the character of our deceased Brother were exemplified the masonic virtues of Truth, Justice, and Charity, and the only appeal we make is that to it be accorded the benefit of thise virtues, which he himself so freely accorded to all.

4^th. That cherished in our hearts, we will keep evergreen the memory of that noble intellect now stilled forever; of the chivalric spirit now returned to its maker, and of that open hand, so ready to relieve the destitute, and succor the distressed, now closed in death.

5^th. That to his country of which he has been the gallant soldier to the people of the Territory of whom he was and had often been the faithful public servant to the legal profession which he elevated and adorned: and to this community to which he was endeared by every tie which can attach man to his fellow we tender our sympathy and demand its reciprocation:–while from the brethren of the Order, here and elsewhere, we ask the tribute of a Mason’s tear over the true Mason, in a Mason’s grave!

6^th. That in behalf of the parents and family of our departed Brother whose sorrow we share, we implore the consolations of that Being who ‘doeth all things well and whose mercy endureth forever.’

7^th. That this Lodge do now proceed to the interment of all that was mortal of its deceased Master, in the order and with the solemnities appropriate to the occasion.

L.J. Rose
Secretary, pro tem.
THE TRIBUTE OF THE PEOPLE: to the memory of the late Hugh N. Smith

The lamented death of this much esteemed gentleman has called forth no demonstration of sorrow more striking or emphatic than the proceedings of the public meeting held in the Court House on Wednesday Morning the 14^th inst., just previous to the interment of his remains. That large Assemblage was the spontaneous impulse of the people themselves, conscious of the loss which they had sustained in the death of Mr. Smith, and sincerely desirous of giving expression to their sorrow and of evincing their affection and respect for his memory. Scenes such as that meeting afforded reflect, credit upon human nature itself, and do honor to the living as well as the dead. Without previous preparation or apparent notice, the people, as though silently moved by a common impulse, filled to overflowing the spacious court room and all that approaches to it. The proceedings were solemn and impressive in the extreme, and it is difficult to convey in writing a report of them at all adequate or just.

The organization if the meeting was effected on the motion of R.H. Tompkins, Esq, by calling Don Facundo Pino to the Chair and the appointment of James L. Johnson Esq., and Don Donaciano Vigil, Vice-Presidents. Dr. F.E. Kavanaugh was appointed Secretary. Upont taking the Chair Mr. Pino proceeded to explain in Spanish to the vast assemblage the purpose and occasion which brought them together. The remarks of Mr. Pino were admirable in every respect—fervent feeling, beautiful and most appropriate. Coming fresh and warm from his own heart they found a ready response from the hearts of those to whom they were addressed. Briefly but forcibly he sketched the brilliant and useful career of the lamented deceased; and passed upon his character an eulogium at once chaste, discriminating and just.

After the chairman had concluded, Gov. Rencher, Don Jose M. Gallegos and C.P. Clever Esq., addressed the meeting. The remarks of these gentlemen were in the best taste and admirably becoming the occasion. They were listened to with the most profound attention, and the sympathies of all hearts echoed the sentiments of the speakers.

Merril Ashurst Esq., moved the adoption of a program to be pursued in attending the remains of the deceased to their last resting place. This program together with the resolutions unanimously adopted by the meeting we append.

When the meeting adjourned it formed in procession and repaired to the residence of the deceased, whose remains it accompanied to the tomb. Together with the Masonic body, the Court and its Members, and the Civil Officers, this Assemblage, composed of the people, constituted a funeral cortege, which announced in terms more eloquent than any we can employ the high and universal esteem in which the deceased was held in this Territory.

Preamble and Resolutions:

WHEREAS it hath pleased the Supreme Ruler of the Universe in his inscrutable dispensation to call to his throne our much esteemed and valued friend and fellow citizen Hugh N. Smith, who departed this life on Tuesday Morning the 13^th inst.

Be it therefore resolved: That in the death of the Hon. Hugh N. Smith, New Mexico has been deprived of one of most useful public spirited citizens, Santa Fe of one of her brightest ornaments, and his associates of one who was the pride of the social circle.

Be it further resolved: That although his sudden and unexpected death has cast a gloom upon our community which will not soon be dissipated, we cherish the hope that it will chasten us as a community, and that we may imitate those virtues which so much adorned his character.

Resolved Further: That we sincerely sympathize with his Family Relations, in the loss of their beloved son, brother and relative, that although his loss is a sad one to us, it has left a void in their midst, which can never be filled.

Resolved Further: That a copy of this Preamble and Resolutions be transmitted by the Secretary of this Meeting to his Family Relations in the State of Missouri, and that the Santa Fe Gazette be requested to publish the same.

Resolved Further: That in honor to his memory the meeting do now adjourn to attend his funeral in a body.

 

Hugh Smith; Attorney General of New Mexico; New Mexico Legal Officials; Territorial Period;