Old Drum: Immortal Missouri Hound

George Graham Vest

Editor’s Note: One of the most memorable closing arguments ever made by a Missouri lawyer was delivered not in defense of a man accused of a crime, but rather in honor of man’s best friend – the dog. On September 23, 1870, George Graham Vest made his famous comments to a Johnson County jury – comments so noteworthy that no less a contemporary author than William Safire included Vest’s remarks in his 1992 collection, “Lend Me Your Ears: Great Speeches in History.” Vest himself served in the Missouri House of Representatives, the Confederate Congress and the United States Senate before his death in 1904. This article, which originally appeared in the April 1940 issue of the Journal of The Missouri Bar, is reprinted here in recognition of its enduring historical interest.

By George Ganter of the St. Louis Bar

It may seem strange that of all the jury speeches by countless Missouri lawyers, the one best remembered was in a case being tried on appeal from a Justice of the Peace involving only $50 damages for the killing of a dog. The case was, however, in its facts, issues, and events, no ordinary case. The men whom fate brought together on that dramatic occasion – the parties, jurors, lawyers, judge – were not ordinary men. And Old Drum, the immortal dog whose virtues stirred the spark of genius in Senator George Graham Vest to deliver his inspired eulogy, was no ordinary dog.

Eulogy To The Dog

“Gentlemen of the Jury: The best friend a man has in this world may turn against him and become his enemy. His son or daughter that he has reared with loving care may prove ungrateful. Those who are nearest and dearest to us, those whom we trust with our happiness and our good name, may become traitors to their faith. The money that a man has he may lose. It flies away from him perhaps when he needs it most. A man’s reputation may be sacrificed in a moment of ill-considered action. The people who are prone to fall on their knees to do us honor when success is with us, may be the first to throw the stones of malice when failure settles its cloud upon our heads. The one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him, the one that never proves ungrateful or treacherous, is his dog.

“Gentlemen of the jury, a man’s dog stands by him in prosperity and in poverty, in health and in sickness. He will sleep on the cold ground where the wintry winds blow and the snow drives fierce, if only he may be near his master’s side. He will kiss the hand that has no food to offer; he will lick the wounds and sores that come from encounter with the roughness of the world. He guards the sleep of his pauper master as if he were a prince. When all other friends desert, he remains. When riches take wing and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens.

“If fortune drives the master forth an outcast in the world, friendless and homeless, the faithful dog asks no higher privilege than that of his company to guard against danger, to fight against his enemies. And when the last scene of all comes, and death takes the master in his embrace and his body is laid away in the cold ground, no matter if all other friends pursue their way, there by his graveside will the noble dog be found, his head between his paws, his eyes sad but open in alert watchfulness, faithful and true even in death.”

When Vest closed there were few present, the jury included, whose eyes were dry, it is said. The foreman appeared to lead the rest in weeping. Counsel for the defendant knew then that their cause was lost. One of them is said to have whispered facetiously to his partner: “We had better get out of the courtroom with our client, else all might be hanged.”

The case was Burden v. Hornsby, being tried in the Court of Common Pleas at Warrensburg, September 23, 1870. Those in the courtroom that day saw in the speaker a man then forty years old, five feet six inches tall, weighing about 110 pounds, with a large head on a short neck, broad shoulders, red hair, a freckled face, blue eyes with a tinge of grey, and, who, among other characteristics, had the singular appearance, it is said, of looking as tall when sitting as when standing. He was a man of charming personality, with extraordinary ability to make and keep friends, a remarkable mind and memory, and was a skillful story teller – a man who stood out in any assemblage.

Vest was no ordinary country lawyer of pioneer days. He had had a good education in his native Kentucky, came to Missouri in 1853, settling at Georgetown, and in 1856 had removed to Boonville. While originally a believer in the Union, he later followed the state government into secession, and served as a member of the Confederate Congress at Richmond in both the House and Senate. Returning to Missouri after the war, he located in Sedalia, becoming a law partner of John F. Phillips. The members of that firm, together with those of Crittenden & Cockrell of Warrensburg, were known as the “big four” of central Missouri. Vest was an able lawyer who, though not a profound book lawyer, carefully prepared his cases. A fluent and persuasive speaker with the ability of swaying juries, he was recognized by all as a dangerous antagonist.

The suite of Burdon vs. Hornsby was filed in the fall of 1869, tried twice before the Justice of the Peace, twice in the Court of Common Pleas, and despite Vest’s great effort in the FINAL trial in the Court of Common Pleas, was not finally ended until July, 1872, term, affirmed the judgment for the plaintiff as reported in 50 Mo. 238.

The case arose out of the killing of “Old Drum,” a locally famous fox hound owned by the plaintiff, Charles Burden, who accused his neighbor Hornsby of instigating the killing, and sought damages in vindication therefore. Old Drum was about five years old, black and tan, with a trace of bloodhound in him, “good for trailing man or beast,” and because of his extraordinary talents, was in great demand in all the surrounding country.

According to Burden, there never was a dog like Old Drum, and in his day he had seen many – both at home and in his many trips across the plains. The dog was the leader of the pack kept by his master at his place down in the second bottom of Big Creek. The country thereabouts abounded in game, such as deer, raccoons, foxes and the like. Wolves were prevalent. No matter what kind of animal, Old Drum was equally good in running it down. To friends who would call at his modest two-room log house, Burden delighted in recounting the dog’s many feats.

Burden said Old Drum “never lied” when on the trail. He could tell from the baying of the dog, and by the direction and manner of the chase, the kind of game followed. The hound’s voice could be heard above all the others, and it had a deep regular sound, as that from the booming of a drum – hence the name. The dog was fearless and seldom failed to get its quarry. As Crittenden (one of the counsel in the case) said many years later, “the dog was known far and near as one of the fastest, best nosed and least uncertain, and has having the most singular bark.”

The plaintiff, Burden, a farmer and ex-confederate, of easy going disposition, enjoyed hunting as something more than a mere pastime. Hornsby, the defendant, was prosperous, a “Drake radical,” and possessed considerable stock of all kinds. During the summer Hornsby had lost about a hundred sheep to dogs, and vowed he would kill the first dog seen on his place. Notwithstanding their differences in temperament, the two parties were alike in their exceedingly stubborn determination. Both were “set” in their ways.

On October 28, 1869, at 8:00 p.m., while Old Drum was absent on a trail, and plaintiff Burden and his brother-in-law were taking their ease at the former’s cabin, a shot was heard coming from the general direction of Hornsby’s farm. Old Drum not appearing the next morning, Burden started out to investigate. Hornsby denied killing the dog, but admitted that, seeing a dog in his yard the night before, he had told his man, Dick Ferguson, to get the gun and shoot it; that Ferguson had done this; that the dog wasn’t killed but had howled and ran away; that the dog wasn’t Old Drum but appeared to be that of a neighbor, Davenport; and that the shells in the gun were loaded with corn. It was said that at the time Ferguson took the shot, there was no moon, and the dog was about thirty steps away in the shadow of a tree. No blood was found at the spot. Later that day Old Drum was found dead in Big Creek, with his head in the water, lying on his left side, with mud on his underside, hair ruffled up, and sorrel hairs, thought to be from a horse, clinging to him. Hornsby owned a sorrel mule. It was inferred that the dog had been dragged or carried to the creek.

Quite a few people had been about the vicinity of the creek but none heard the shot. Both Hornsby and Ferguson claimed that they had removed the lead bullets of varying size from the dead dog. Then it was claimed that two shots were heard that night, but only the body of Old Drum was found.

Plaintiff’s efforts to get justice got off to a poor start. His lawyer, Thomas L. Jones, brought suit before Justice of the Peace Monroe of Madison Township for damages in the amount of $100, although the jurisdictional limit was $50. Defendant’s attorneys, Nation and Allen, moved to dismiss, but over their objection plaintiff was permitted to reduce the prayer for damages to $50. A jury was demanded, and in the first trial before the Justice, in November, 1869, the jury failed to agree. The case was tried again in January, 1870, resulting in a verdict for the plaintiff for $25. Defendant appealed to the Court of Common Pleas. At this time the parties evidently decided that they needed new counsel, as Elliott & Blodgett appeared for the plaintiff and Crittenden & Cockrell for the defendant. During March, 1870, the case was tried on appeal, resulting in a verdict for the defendant. Plaintiff filed motion for new trial. Thereafter, and no doubt before this motion was argued, the plaintiff retained the firm of Phillips & Vest of the nearby city of Sedalia. In May, Judge Wright granted a new trial on the ground of newly discovered evidence.

On September 22, 1870, the famous trial began with Judge Wright presiding. By this time the case had created considerable interest because of the nature of the case, and ill feeling between the parties, and the array of counsel. The courtroom was crowded with lawyers, witnesses, the partisans of the contestants and the merely curious. The patience of the court must have been about exhausted, as he is quoted as saying that he “wanted this dog case fully tried and ended; it has already taken too much time.” The witnesses were heard and Judge Wright allowed two speeches to the side, Blodgett making the opening speech for the plaintiff, Crittenden opened for the defendant, Cockrell followed, and Vest closed with an argument of one and one-half hours, of which the eulogy took only about five minutes. Crittenden and Cockrell, up to the time that Vest spoke, fully expected victory for their client, the defendant, but after Vest started speaking they realized that they had lost.

Defendant Hornsby appealed to the Supreme Court, which in a short opinion by Judge Bliss affirmed the judgment. Appellant alleged error in permitting the amendment of the original statement of claim reducing the amount prayed from $100 to $50. The court held it was proper to allow the amendment. Appellant further alleged error in granting plaintiff’s motion for new trial. As to this the opinion said, “It has long since been settled in Missouri that error will not lie for granting a new trial,” and “Upon the second trial the evidence was all submitted to the jury upon fair instructions, and the case should have stopped there. I find no error whatever in the record.”

Of the lawyers who appeared in the case for the plaintiff, G. N. Elliott became Judge of the Court of Common Pleas, Wells H. Blodgett, after serving as State Senator, became Vice President and General Solicitor of the Wabash Railroad, John F. Phillips was appointed U.S. District Judge at Kansas City, where he served ably for many years, and George G. Vest, after being defeated for the Democratic nomination for Governor in 1876, was elected by the Missouri Legislature to the United States Senate, where he served from 1879 to 1903.

On the defendant’s side, Francis M. Cockrell was also elected United States Senator, serving as such for thirty years, and later became a member of the Interstate Commerce Commission. His partner, Thomas T. Crittenden, after serving as a representative in Congress, was elected Governor of Missouri in 1880, filling that office very capably. Through his efforts he rid the state of outlawry. It was during his term that Bob Ford

“The dirty little coward
Who shot Mister Howard
Has laid Jesse James
In his grave,”

and Frank James, co-leader of the James gang, surrendered to the authorities. Crittenden later served as American Consul to Mexico under appointment of President Cleveland.

And the memory of Old Drum is preserved eternally in the minds of men by a greater monument than any graven stone could be – the undying tribute in Senator George Graham Vest’s Eulogy To The Dog. (Mo. Bar J. April 1940)