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Nevada Law Journal




Decius Spear Wade was the longest serving member of the Montana Territorial Supreme Court, holding the Chief Justiceship between 1871 and 1887, more than sixteen years. Wade authored an impressive 192 majority opinions, along with fourteen concurrences and dissents, of the total of 637 reported majority opinions issued by that court. By productivity and length of service alone, Wade stands out on the Montana court and among territorial judges generally. Unlike many territorial judges, including some of his brethren on the Montana court, Wade was well-regarded by his contemporaries. Subsequent observers have also ranked Wade among the best of the judges of the territorial courts generally.

In addition to his long tenure on the Territorial Supreme Court, Wade played an important role in other aspects of nineteenth century Montana. He wrote the chapters on law and the courts for a popular nineteenth century history of Montana, authored a novel with a legal theme that was read (and apparently well thought of) in Montana Territory, and wrote an article on selfgovernment in the territories. In addition to his writings, Wade served on the 1889-1895 Code Commission and delivered two crucial speeches on the common law8 and codification9 in the 1890s that helped pave the way for Montana's adoption of Civil, Political, Penal, and Civil Procedure codes originally drafted by David Dudley Field for New York.

Yet we must be careful not to overestimate Wade's influence. Wade is far from the judicial stalwart portrayed in the brief summaries of Montana's judicial history present in general historical works. He was a thorough and careful (if overly wordy) writer, as discussed below, but he was also surprisingly sloppy about attributing his lengthy quotes from others' works in at least some of his published writings. He was an able common law judge, but enthusiastically threw himself into an attempt to dismantle the common law system in the 1890s. He played an important role in ensuring the common law's stability, yet disparaged that stability in his public pronouncements. Paradoxically it is the role that Wade seems to have been least concerned with, that of common law judge, rather than his more grandiose attempts at a legacy of legal reform, that form his most significant contribution to Montana jurisprudence.

The combination of Wade's prominence, prolific opinion-writing, other legal writings, and reputation make him a fitting subject of study today. In Wade's writings we see the combination of what Gordon Bakken termed the "habitual modes and forms of official thought and action and the innovations produced by the frontier." In section II below, I give a brief biographical overview of Wade. I outline the methodology I used to extract data from Wade's opinions in section III. I present the results of this analysis, along with a more traditional legal analysis in section IV.

A brief note is in order on what this article is not. It is not a legal history of Montana Territory, something that has yet to be written. It is also not an examination of the federal-territorial relationship, an important area for territorial judges who were under the supervision of the federal attorney general. The focus is on Wade and his writings, which means it is also not a full fledged analysis of the national or regional territorial bench or legal systems as a whole, something that has already been written and written well, by several authors. 16 Rather the goal is to examine how Wade dealt with the legal challenges posed by Montana Territory's rapid growth.

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University of Nevada Las Vegas

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