# California Inter Pocula/Chapter 21

CHAPTER XXI.
COURTS OF JUSTICE AND COURT SCENES.
Conrad.—Away ! you are an ass, you are an ass.
Dogberry.— Dost thou not suspect my place? Dost thou not suspect my years ? O that lie were here to write me down an ass ! But, masters, remember that I am an ass; though it be not written down, yet forget not that I am an ass. No, thou villain, thou art full of piety, as shall be proved upon thee by good witness. I am a wise fellow; and, which is more, an officer, and, which is more, a householder; and, which is more, as pretty a piece of flesh as any is in Messina; and one that knows the law, go to; and a rich fellow enough, go to; and a fellow that hath had losses, and one that hath two gowns and everything handsome about him. Bring him away. O that I had been writ dowTi an ass !
—Much Ado About Nothing.
1st Clown.—Argal, he that is not guilty of his own death shortens not his own life.
Sd Clown.—But is this law ?
1st Clown.—Ay, marry is't; crowner's quest law.
—Hamlet.
Courts of justice in California were, in early times, equal if not superior to those of any new country or border settlement founded since the days of Justinian—equal if not superior in ability, stupidity, or what you will. Anything that courts of justice could do any where or under any circumstances, good or bad, ours could achieve. Yet I may safely say that the judges, on the whole, were honest men; and while frequently neither educated in law nor specially fitted for the position, they were far above the average magistrates in general intelligence and practical judgment. On the supreme bench and presiding over the district and county courts, particularly in the cities and more thickly populated parts, have been from the first occupation of the territory by citizens of the United States until the present day, as able and erudite jurists, men of as broad and enlightened intellects, as might be found elsewhere in Europe or ​America. Some were dissipated, but for the most part they were men of integrity. Even during the most lawless times there were sitting on the judicial bench of California men whose purity of life and character was never questioned. And to-day a corrupt judge is the exception, not the rule. With pride I point to our judiciary and to the better class of attorneys who practice in our courts. True, a judge may be bribed sometimes, not knowing it; or he may be swayed by public opinion, not knowing it; he may be feasted by bonanza men, or given a free ride across the continent by the wholesale corruptionists of the railroads, and so warp his decision in their favor—not knowing it. Unfortunately as much cannot truthfully be said of our legislators and political officeholders who, during the usually short term of their occupancy, seek rather to serve themselves than the public. These are never bribed without knowing it, as they always require pay in advance.
During the flush times, the days of which I write, we find some dolts and some wilfully wicked men seated even on our higher judicial benches. Through the absence of strict social restraint arose laxity in moral observances and legal formulas. Among the people, vigor of mind broke out into numerous eccentricities; or, rather, the preoccupied citizen, acting naturally and independently, not thinking wholly of himself, his dress, and manner, claiming for himself the utmost freedom, eating, sleeping, walking, speaking as best pleased him, threw aside some of the eccentricities of fashion, and in so doing to the unenfranchised appeared eccentric. Leaving the marts of business for church worship, the same eccentricity of thought, or lack of it, is manifest, though in form devotion was not greatly changed. In such a society it is but natural that from tribunals of justice, as well as from its ministers, some part of that severe decorum which characterizes more staid and superstitious communities should be removed.
​Whence arose, carrying in some things their Uberty into hbertinism, the not unusual sights at one time of chief justice and courtesan promenading the busiest thoroughfare in company; of supreme judge seated behind a gambhng table dealing faro, and surrounded by lawyers, politicians, prostitutes, and friends; of supreme judge drinking to drunkenness, carousing all night in elegantly furnished halls of infamy, fighting duels, assaulting citizens, and burdened so heavily with debts incurred by licentious living as to become the willing tool of whomsoever would buy him up and offer him for cancellation by the easy though conscienceless method of warped judicial decisions.
While such a state of things existed at the fountainhead of justice, we should not be surprised to find its lower channels somewhat turbid in their flow. While Mammon and Gammon sat upon the supreme bench it was not difficult to determine what sort of pleading was required to win a cause before that tribunal. While he who during the morning hours listened as associate justice to the cases brought before one of the upper courts of the metropolis, in the afternoon stood by and witnessed a deliberate murder, of which he had foreknowledge and was accessory, being the murderer's friend he would naturally hurry him to prison as to a place of safety.
Between these two extremes of the best and the worst, in the city and in the country, every shade of character was to be found among the judiciary of California. Nor did personal immorality by any means imply judicial corruption. At a time when the female element was meagre, deference was paid by all classes to the female form, even though its dress covered corruption; nor was it very damaging to any man's reputation, when everything was public, to be seen in conversation with a public woman.
Gambling and drinking saloons were places of public resort; all classes there met and mingled freely. The person so prudish as to hold aloof from such ​places made few friends. There was nothing disreputable at that time in being seen in a saloon, and a man would be regarded mean who enjoyed night after night the shelter, light, and society of the place without ever spending a dollar there. Judges of course frequented drinking saloons; men who never patronized such places were seldom made judges. A judge's morals were his own, they said ; his official acts alone belonged to the public.
The men of chivalry, who indulged in the duels and street encounters, being of all men devoid of the pure article, were of all others the most sensitive to what they called their honor. It so happened among those of them w^ho were judges that their ideas of honor accorded with equitable decisions; though like many professors in other directions their practice was in no wise in keeping with thetr tenets. But for the most part chivalrous judges, though they might indulge freely in drunkenness, gambling, and licentiousness, when no one was at hand to bribe them, were just and equitable magistrates.
It so happened again that the term gentleman implied fair judgment; though this by no means was always the case. It was with them as with the pompous and punctilious of other ages who had nothing but their pride to* be proud of As to what constitutes a gentleman depends entirely upon time and place. George the Fourth of England, voluptuary, debauchee, egotist, and false-hearted, was called in his day the first rrentleman in Europe. Later, dandyism, with some intellectual pretensions, in the person of the Frenchman Count d' Orsay. became the orthodox type. To dress well, tc riue well, to swim, shoot, box, wrestle, and play cricket well, were the accomplishments that crowned the gentleman. Lord Chesterfield's gentlemen were made of manners and hollowhearted ness. California's judges were all of them gentlemen, howsoever corrupt or debased they were.
While in the cities, and in the higher courts of the ​more settled localities, court proceedings and rulings were governed by precedents and legislative enactments; throughout the mining region, or other distant or thinly populated districts, connnon sense took the place of common law, while statute-books and precedents were flung to the wind as unworthy a sane man's consideration. Such equipage might do for jurists like "that bloated philosopher, who mistook declamation for eloquence, and aflectation for feeling " as Lamartine said of Raynal; but then if they could not reach the truth without the aid of books and book-learning, they could not with them. Away from their bit and harness, these jurists of all-dominating rules and statutes were like that blindly wandering wisdom which looks one way and walks another, and when asked a question, and no books are at hand, nil dlcit, or like Ignaro, foster-father of Argoglia, answers "I cannot tell."
And they were right. Simple and ignorant judges of suiiple differences between ignorant men, the simplest and most direct method was the best for them. All the while, be it remembered, these uncouth jurists were in practical sagacity no whit behind their more intellectually cultured brethren of the woolsack. It was af broad unfolding in the evolution of jurisprudence, that such an element as that which infested the foothills from 1848 to 185G should be so easily and so thoroughly kept in order by their own regulations, carried out by men chosen from among their own number, and with little aid from statutory enactments.
As in religion so in jurisprudence, meaningless forms are becoming obsolete, and substance is the thing considered. Much superfluous tackling has already fallen from court proceedings, and there is more which might profitably be stripped from them; that the well-appointed library of an attorney in fair practice must number its volumes by tens of thousands, and that rulings and decisions nmst be compiled from those who sat and judged thirty or three hundred ​
years ago, suggests a further advancement in this direction. What we want is less precedent; in reHgion less of Patristic doo;mas, and in law less reverting- to the past for the solution of questions which, if we have availed ourselves of our advantages we should understand better than our forefathers.
Knowledge, either in law or elsewhere, is not alone a looking back, but an eternity of inquiry concerning not only what has been but what is and shall be. When we can no more conceive of a boundary to knowledge than we can conceive of a boundary to space, it is not wise in us to revivify by all our powers dead or dying formulas; for if such a course does not lead to the nihilism of Georgius of Leontini, there is at all events but little progress in it. This same Geor<rius after all is not altooether wrongs in his affirmation that nothing is, or if it be that it cannot be known. Our knowledge comes from nothing and ends in nothing. " Philosophy begins in wonder," says Plato, "for Iris is the child of Thaumas." Nature-worship is the mythology of science, and the myths of Greece reduced to system in the writings of Hesiod and Homer enfolded the germ of all that followed. The pursuit of knowledge is a journey from the sublime to the ridiculous. The end of knowledge is to plunge us yet deeper in the gulf of ignorance. The progress of religion is from the mighty and majestic gods of Homer to the buffoons burlesqued by Luciau; from the deities of savagism, moving clouds, speaking thunder, smiling sunshine and soft kissing breezes, through monotheism and Christianity to the infidelity generated by science. Science in its turn on eveiy side soon strikes the unknowable, and throws back the inquirer after ultimate truth upon something akin to nihilism. In the progress of literature, as elsewhere, we see the same principle manifest. In its earliest stages it assumes the form of epic or lyric poetry, of tragedy and historic narrative—the bloody and the real; later, with ​a higher intellectuality, we have comedy and romance—the contemplative and ideal.
Now the day is coming when law shall find wisdom in less learning; when from the mountains of ancient and accumulative legal lore, as from the Cretan labyrinth for the imprisonment of the Minotaurs, the thread of simple justice shall be followed until the searcher for the direct path shall be brought out into the clear light of open day. Then it will be manifest to all that between the natural rights of man as arrived at by the gold-diggers," and right as proclaimed by the law and taught by tribunals, the difference is less real than pretended; that the justice of the miners, like their gold, though it had not the statutory stamp upon it was none the less pure metal.
Much truth is treasured up in proverbs and legal maxims, and yet what oceans of absurdities are swallowed when codified under the formulas of truth! There are few of them but would fit mankind as well reversed, that is, if made to say exactly the opposite of what they do say. I have often followed as a pastime this reversing of maxims, and the effect sometimes is marvelous. What matchless subtlety of thought do we find in words thus broug-ht out, such as. An honest god the noblest work of man. Policy is the best honesty, and a host of others; while for the multitude of such meaningless expressions as "Live each day as though it were your last," we find by allowing the mind to dwell upon it for a moment that not the thing said was meant at all, but something else. No one could make a greater mistake than by following literally such injunctions. But they are not intended to be taken literally; all that is nuant is to live well every day. Then would it not be better to say so, and not to elevate into a maxim, and immortalize in the name of golden truth, brazen absurdity. Better the sage remark of the crank, Don Quixote, "Everyone is like everybody else, only a great deal ​
worse "; or that of any one of the several classes in society, each of which has a series of formal expressions containing little or no meaning.
Thus we see there is much in forms and precedents and maxims which, if blotted from the memory of man, would leave the course of justice more clear and logical. There is much cumbersome machinery in court procedure which retards rather than assists in protecting the innocent and punishing the guilty.
It is undoubtedly true that too often in our courts, where reason and sound argument should be the only weapons, coarse expletives and physical violence have been employed, but happily the logic of brute force is gradually becoming unfashionable.
During the time when vigjilance committees were a necessity, it is a most significant fact that besides the lower class of evil-minded persons marshalled on the side of law and order were all licentious judges, stabbing jurists, duelling editors, and fighting lawyers. Make out lists of the individual members of the opposing factions and you will find with singular uniformity one composed of persons quietly disposed, honest, industrious, intelligent, and virtuous, and the other of quarrelsome, irate, waspish work-despisers. Any one who will go carefully over the first seven years of the annals of the state, as recorded by the leading writers of the time, w^ill find it almost invariably the case, that those officials prominent in shooting-scrapes, those lawyers fined most frequently for drawing deadly weapons in courts, those limbs of the law who of all others oftenest broke the law, those whom only the law was made to punish—this class was usually loudest in support of law. And why was this ? Briefly, for two reasons. First, these manipulators of the law could the more easily shelter their misdeeds under the law; and secondly, the conflict, on one side at least, had degenerated from one for principle to one politically, sectionally, and socially partisan. Some were made to govern, ​others to be governed, was the doctrme held by law and order.
In a few instances, before the year 1850 had expired, justices of the peace and judges had been impeached and driven from their seats by the people. But compared with those who at this time were accustomed, either openly or in secret, to take illegal fees, to extort, accept bribes, or otherwise violate their oath of office, the number punished was insignificant. The money-makers had no time to chastise their criminals, to say nothing of judges. True, there was the short, quick way, the only practicable way in ordinary cases; but then they did not exactly like to hang judges, "as it might be again law, like," though they often threatened to do so.
In the first number of the California Star, published at Yerba Buena January 9, 1847, are the following pertinent remarks on the custom of smoking in court: "Among the many good rules adopted by our late alcalde, and broken by the present one—not to mention the high-handed violation of the dearest rights of freemen, a refusal of trial by jury, of which hereafter—is that of smoking in the court-room, and this, too, practised almost solely by the judge and his clerk, who are more than half their time puffing forth clouds of smoke from their 'long nines,' greatly to the annoyance of persons having business in court, particularly those net in the habit of smoking. Besides, I would ask, does it look very dignified for a judge to be delivering a decision in an important case with a cigar in his mouth, stopping every half minute in his address to give a puff or two?"
The following scene in court, which happened at San Francisco in February 1848, is but one of a class. Two individuals met in a liquor saloon, drank, quarrelled, fought. One received a stab in the breast. The other was arrested by a posse of citizens, and taken ​before the magistrate, who, after an examination, hinted of quarters in the calaboose. The oaths with which the prisoner interlarded his speech may be omitted without loss.
Prisoner (to the judge). "This is a bailable case, sir, and you can't put me thar."
Magistrate. "It is not a bailable case, sir, and—"
Prisoner (interrupting). "I know its a bailable case; I am something of a lawyer if I am dressed in buckskin. You can't put me hi the calaboose, sir."
Magistrate. "Stop, sir, stop, you will have to go to prison if—"
Prisoner. "I go to prison? No, sir! and you can't put me thar!"
Magistrate. "Yes, sir. We'll see!"
Prisoner. "We'll see! and if you go to put me in that thar calaboose you can't live in this place. Yes, sir, I know you, you are a rascal, and you—"
Magistrate. "Be silent sir! Will you hear me?"
Prisoner (in high fever). "Yes, sir, I'll hear you; you are no gentleman! You can't put me in that prison; you are a villain. Don't you dare to put me in that prison. I never was in prison yet, and if you put me thar and want to live you had better leave this place!"
The judge, who was scarcely fit for the emergency, not relishing the aspect of affairs, would have kept the prisoner confined without sending him to jail had not the citizens and members of that town council interfered and compelled him to do so.
Early in 1849 there was a man of somewhat intellectual aspect, fair address, free and easy manner, and that shrewd, practical instinct which in those days passed current for its full worth, who stood about the streets in San Francisco selling peanuts. Although the person was greatly superior to his calling, be seemed by no means ashamed of it. Before he came to California he was—nobody knew what. No one knew or cared to know who any person was before he came ​me
hither. It was enough now to be of Callfornia; a new existence dated from the landmg at the wharf in San Francisco.
This peanut-seller may have been a doctor, judge, drayman, or printer before coming here; now he was a business citizen of California's embryo metropolis. His business was a good one; nay more, it was large and profitable. There was no such thing as a small business in those daj's; scarcely such a thing as an unprofitable business. One might lose by fire or speculation, but every well-managed legitimate business was very remunerative. Even peanuts paid. At a dollar a cup-full when one roasted them one's self, and passed them out lively, one could easily afford to dress fairly and board at a fis-e-dollar-a-day hotel as our friend did.
The peanut-merchant made many friends. He seemed as much at home in tbe best society as in the worst; he was well informed up(Hi all the leading topics of the day, read the news from all parts of the world on the arrival of every steamer, and was at home in conversation equally with the lawyer, mechanic, or petty politician. It seemed never to occur to him, it scarcely seemed to occur to others, that there w^as anything about his calling low or humiliating. Ho had come to California, as had all the rest, to make money; and like a wise man he engaged in that which offered the most flattering inducements. Vanderbilt himself could not have found a more lucrative occupation with so small an outlay and risk.
But the peanut peddler was not without his quiet ambition. His traffic had taken him many times a day to the little court-house opposite the plaza, and he was upon the most easy terms with the alcalde, clerk, and constable, besides the lawyers and hangerson about the place. Being a man of intelligent observation, he had noticed how the increasing business crowded upon the ancient and yet unawakened magistrate of Spanish associations, and that although the ​quality of the justice there administered was none of the best, it usually commanded a good price.
An idea struck him. He would start a court and be a judge himself He believed he could make a better thing of it than of peanuts. He would do it. But how? Easy enough. He knew the ringleaders of the Hounds; knew intimately Sam Roberts, St John, and many more of them. He had treated them to peanuts fifty times, and had often talked with them by the hour about politics, raids, gold-mines, and the expulsion of the Chilenos. Then there were his lawyer friends, his court friends, and a host of others; and as he had saved a little money, the thing was not hard to do; and it was done.
Indeed the business of young San Francisco had so increased, and was still so rapidly growing, that the organization of another court, superior to that of the alcalde, seemed a necessity; and backed by his political friends, the peanut merchant with no great difficulty prevailed upon the governor to authorize him to establish such a tribunal.
The peanut peddler was now William B. Almond, Esquire, judge of the court of First Instance, with civil jurisdiction in cases involving sums exceeding one hundred dollars. His court was held in a little shanty, called the old school-house, situated on the southwest corner of the plaza, on the Clay street side, near the Monumental engine-house, while the alcalde still remained at his old quarters near the southeast corner of Washington and Kearny streets fronting the plaza.
The 12th of December, 1849, saw Judge Almond's court open and ready for business. Salary was a thino; unknown at that time among court officials. Judges, sheriffs, clerks, constables, all drew compensation for their services in fees, generally fixed by themselves. Running a court was a speculation, like running a hotel, or a store; it was conducted to make money, and was valued at what it would pay. To ​
make its decisions valid certain elections or appointments were necessary, and these were obtained as the exigencies of the times seemed to require. It was not until several years later that all the municipal officers were put upon a salary basis; nor until the offices of sheriff, tax-collector, and the like were estimated as worth to the occupant forty thousand dollars per annum. These tempting baits were the source of great evils, both in the manner of obtaining office, and in the execution of its duties.
Behold now the mercantile grub transformed to winged justice. All hail to the rising sun ! Money and merriment were the prominent characteristics of this tribunal. As a matter of course the mill must grind steadily, and with tolerable fairness; otherwise the institution would acquire an evil reputation, which, like a gambling-shop famous for its cheating, would repel litigants, and with them their dollars. There was no harm, however, in having it thoroughly understood that in this court time was money. This was no less a desirable feature with suitors than with the judges; those were busy days, and no one wished to wrangle long over a few hundred dollars, when probably they could make twice the amount during the same time by attending to their legitimate business. Money was the burden of Judge Almond's sittings; no criminal cases were allowed. Ounces were the sharp-edged Al Sirat which should bridge the infelicities of law to the heaven of rest beyond.
Seated sidewise by the comer of a table, exposing a profile view of a sharp-featured decisive face, grown somewhat stern by reason of its owner's elevation, and thin, perhaps from care and new responsibility; seated in the favorite American posture, balancing his tipped-back chair with feet planted against the wall higher than his head, paring his finger-nails, which seemed to grow according to the volume of business presented before the court, Judge Almond was prepared to listen to all who should come to him. And ​when case after case was called, imperturbably he sat, like Olympian Jove weighing in the balance the fates of Greek and Trojan, with no change of occupation, nor shiftings of position—only from his mouth shot thunderbolts of judgment, short, sharp and decisive.
In front of the table were usually three or four clerks and reporters, back of whom were litigants, lawyers, and witnesses, while a crowd of spectators and hangers-on filled the remainder of the room. The nuisance of a jury was seldom tolerated in this court. Decisions were reached partly by evidence and partly by intuition. The judge did what was right, as Sophocles said of Aeschylus, without knowing it. Seldom did he hear a case through, but when he thought he fairly comprehended it, he directed the clerk to enter judgment and call another case; and often these summary proceedings would continue until nine or ten o'clock at night.
Now it must not be inferred from all this that justice was not administered in this court, or that it was more uncertain here than elsewhere, or that it was more uncertain under the free and informal rulings of Almond, the quondam peanut-seller, than it would have been had Mansfield, or Marshall, or Stephens, or Story been seated in his place. In balancing the short, sharp encounters of busy men undergoing new and abnormal experiences, their learning would have hampered them like superfluous equipment, while the clear, free judgment of Almond directed his finger immediately to the root of a difficulty, which might be then eradicated without the aid of precedent. All their skilled intelligence would be employed in fitting experience to forms, while he had only the thing itself to deal with.
Almond determined the causes brought before him quickly, courageously, righteously. Rude, uncouth, illiterate so far as law learning went, there was a directness about him that suited the temper of the time. Everybody drank in those days; at least all ​who wished could do so, as I have said, without losing caste. Almond saw nothing hampering to the wheels of justice in his drinking, provided he did not drink too much, or alone; if he drank at all, he would do so openly, before all the world. Yet he was no soi fainéant in his rulings; it was generally the opinion among Californians of that day that forms of law were rather a curse than a blessing, at least to this special community.
Moreover, he was equal to the emergency. What he was before he sold peanuts, as I observed, nobody knew, except that he was not a lawyer and had never studied law. But he had somewhere gained experience, had learned to know men and the right and wrong of things, judging from a natural and commonsense standpoint. Says John Morley, writing of George III., "There is nothing more fatal, either in private life or in the larger affairs of state, than for an incompetent man to grasp a principle of action that is too bio- for him." Herein lies the secret of success in any walk in life. Almond grasped the running of a law court as completely as he had grasped the peanut occupation. He was by no means an admirable character, yet he was for that emergency a good judge. He was as full of oaths as Charles Lamb was of puns, and his blasphemy was not of the most refined quality. It is well to note how such a person could place himself in such a position among the intelligent people of California and maintain it, still holding their respect. Yet he was an honest man, and judged equitably between men who were in no humor to be trifled with. Had such not been his character and reputation, the frame school-house would not long have been Judge Almond's courtroom.
The judge was coarse rather than otherwise in his tastes. He used to delight in worrying the poor and pompous attorneys, and after bringing them to grief to laugh at their chagrin. To their displays of eloquence he was profoundly indifferent; their legal ​
knowledge was wholly thrown away on him; those only who, with homely logic, spoke plainly, briefly, and to the point might hope to move him with words. Often before the first witness had concluded his testimony his quick discernment had reached an opinion, and his mind once made up, nothing could shake it.
One day a physician appeared before the court asking judgment for five hundred dollars from the captain of a ship for attending such of the crew as were sick during the voyage. The doctor had shipped as passenger, and the demand was widely at variance with the value of his services. The case was briefly presented, and a witness called whom the judge instructed to tell what he knew about it in as few words as possible. This done, the plaintiff's attorney called another witness, but the judge informed him that further evidence was unnecessary. The witness had told a plain simple story, the court understood the case thoroughly, and its mind was made up.
"Very well," said the counsel, **but you will certainly hear us speak as to the points of law in the case «
" That would be entirely useless," replied the judge, "and we have no time to waste. The plaintifl* is awarded one hundred and fifty dollars; call the next case."
In a more pretentious court this case would have occupied one, two, or three days, and miglit easilj'have been postponed from time to time so as to consume as many weeks or months. Half an hour sufficed Judge Almond to dispose of it as fairly and equitably as anyone, however learned or skilled in the law, could have done in six weeks or six months. Half the award went to the plaintiff"'s attorney, leaving the doctor, even at that rate, well paid for his services, and there was an end of it.
Frank Turk on a certain occasion ha^dng business before this court, with profound respect on entering removed his hat, a broad-brimmed, pointed-crown, ​
Guy Fawkes affair, and laid it carefully on the floor three or four yards from the judge's feet. Wrapped ill meditation upon the intricacies of the case before him, and following his usual practice, his honor unconsciously made Turk's hat a mark for his tobaccotainted ejections. A head-dress of that kind and quality was worth two or three ounces, and Turk was particularly proud of his hat, as well as sensitive as to its treatment He sought to catch the judge's eye, coughed, moved his hat as he thought beyond the reach of danger, moved it twice, thrice; but ever the somnambulic eye of the judge followed it, and ever with unerring aim the discharge from his mouth did hlthy execution. Turk could endure it no longer. Boiling with indignation he stepped up to the judge, shook his fist in his face, and fairly yelled his curses. This demonstration and the roar which followed awoke the judge to a realizing sense of things, and he lauo-hed with the rest.
It was a dry business listening to dry cases, and spurting tobacco-juice at a mark across the room by the hour, and the judge was not the man to sit and suffer through the day. He was now a great man; but great men grow thirsty. All great men in California at that time were thirsty men. Indeed thirst was a mark of greatness, and the more thirsty a judge the more was he esteemed fit for the position. There was nothing at all strange then that Judge Almond should pause occasionally in his proceedings to quench his thirst. And this was done with characteristic openness, though not in defiance of any sense of public propriety. There were always those about the court, accuser and accused, counsel, jurymen, witnesses, ready to drink as often as the judge desired, especially if some beside themselves paid for it. Hence there were no decisions emanating from that bench which met with greater general approval than when the judge paused in the midst of a case, and raising himself to his full height announced, ​
"The court's dry; the court's adjourned; let's take a drink!"
Whether or not this might be called a court of original jurisdiction, it was certainly a court of original rulings. The witness who asked to be excused from giving bail for his appearance when required was answered: "Yes, on payment of the customary fee of one ounce." If an attorney wished to make a motion the judge replied, " The motion is granted on payment of the fee, one ounce." Either side could have a case postponed on payment of one ounce ; or if both parties to the suit requested it, then each m ist pay into court an ounce of gold-dust. Sometimes the judge's table would be half covered with gold-dust, and Judge Almond's ounce became a byword. It was by a sort of argmnentum ad ignorantiani that the judge arrived at this decision. Himself ignorant of the facts, if the order asked for by a responsible attorney was not proper his adversary would quickly appear and ask to have it cancelled; and then the ounces ! Never was there a court in California where injunctions could be so easily obtained or so quickly set aside.
It cannot be denied that Judge Almond, between liaste and an eye to the main chance, sometimes strained his opinions to meet emergencies. During the winter of 1849 a Sacramento river boatman at the mouth of Suisun bay picked up a dismantled launch and brought it to San Francisco. There being on board of it eight or ten bales of gijods the boatman claimed salvage, which the owner of the goods deemed exorbitant and refused to pay. The case came up before Judge Almond, who after one of his usual quick and careful hearings awarded the boatman $100 for his trouble ; but learning before judgment was entered that the boatman's counsel fee and court costs amounted to $200, he raised the judgment to that amount. The owner still refusing to pay, the goods were sold, and being damaged brought only $150, whereupon a cart and horse ​
belonging to the owner of the goods were sold to make up the remainder. Here was a case where even the machinery of Judge Almond's court proved sufficient to defeat the ends of justice; for the boatman who saved the goods got nothing, while the owner was compelled to pay more than their value for the saving of them.
With John W. Geary as alcalde in 1850, and a city charter and two boards of aldermen, a grand jury was in order in the pretentious town of San Francisco. Very respectable men were selected, and proceedings were conducted in staid New England manner. Particularly was the oath administered devoutl}^ and solemnly, every witness being required to kiss the book with reverential demeanor. Frivolity and blasphemy had disgraced our tribunals long enough, thought the new city's j)to tempore masters. A healthful example should now be set. Their deliberations over, the jury were about to be called into court to receive their discharge, when unluckily one of their number, cursed with evil curiosity, picked up the book upon which all had been so furiously swearing, and opened it when, O mores! it was Tiqypers Proverbial Philosophy. Now to let it be known that they, a genuine Yankee jury, anti-chivalry, anti-slavery, anti-law-and-order, anti-swearers and tobaccochewers, men of clean white shirts and consciences, Sunda3^school men, decent in all things, men of mark on Battery and Front streets, men who never indulged in any drink stronger than hard cider, and if they ever drove out at all it was always with one horse to four persons—that these prim puritanssons should so far demean themselves, their antecedents and their surroundings, as to mistake the sickly sentimentalism of the maledict Martin for the new testament, was pitiful to contemplate. Had it been only a Webster's Spelling Book there would not attach to it so foul a disgrace, but Martin ​
Tupper's rhymes—the error could never be forgiven.
What should be done ? All their proceedings, so far as the virtue of book in the administering of oaths was concerned, were of course invalid. If the book was essential to the sound administration of law, they had signally failed in using, in place of the sacred scriptures a volume of maudlin verses; if the book is not essential, then why add to the multitude of idle forms by which justice is hampered? The free and easy tribunals of audacious rulings committed no such stupid blunders as this. A long and solemn silence followed this discovery, as the men of merchandise gazed one upon another in blank chagrin. Finally an intelligent juror of very respectable wealth opened his mouth and slowly articulated, half soliloquizing:—"I would not like wittingly to do such a thing; my business needs my attention; we cannot well go over these days of arduous labors; an oath in the eyes of the Almighty is equally binding, perhaps, whether the swearer's hand rests on a Tupper or on a Paul, so long as the man himself does not know it; the sacredness of forms should be sustained and the etiquette of courts preserved ; I think on the whole we had better say nothing of this to. the judge. If we keep the secret to ourselves the oath is just as binding and the law just as good as if the swearing had been done upon a veritable bible; though it staggers me somewhat to think to what use unlearned and ungodly jurists might put this train of argument." So it was agreed and so done. The jury went into court; Alcalde Geary complimented them after the usual fashion for the faithful performance of their duties, apologized for his inability to pay their fees owing to the conspicuous emptiness of the city treasury, and discharged them.
When the Jenny Lind theatre was metamorphosed into a city hall there was quite a reform instituted in ​
courtroom manners, coarse jesting, profane swearing, and smoking were no longer j)ermissible. An Irish excursionist, on entering one of the rooms newly fitted up for the district court, saw twelve pine sticks placed in a row in front of the jurors' seats. Prompted by curiosity he asked an attendant their significance and use, and was informed that they were called desk-protectors, and that it was made part of his duty to provide whittling timber for the gentlemen of the jury.
It was said that McGowan, before coming to California, was sentenced to the state prison of Pennsylvania for the robbery of the Chester bank, and that he was afterward pardoned by the governor on condition that he wonld leave the state. The fact is, Ned forfeited his bail and was never pardoned. Many criminals, however, have been set at liberty on these conditions, which course is assuredly wrong on the part of any community or nation except under extraordinary circumstances. The only plea, on the part of a judge or a ruler, for adopting such a course is that in another country a criminal may reform and live a virtuous life. But no matter how the penitent may promise this is seldom the result. Far oftener happens it that the pardoned, sent from a society which knows and watches him, to one where he is unknown and consequently may with greater safety commit new villainies, enters upon a career of wickedness wider than ever. Having served an apprenticeship and become skilled in crime in one place, he is offered the most tempting facilities for profiting by his past experience, and for gaining the confidence of a new community, where he may practise his profession with the fullest success. A bad man, entering one state from another, may rightly be sent back to the place in which his wickedness was bred; but to turn him unwhipt upon the world is about as righteous as to turn into your neighbor's vineyard the fox caught iu your own because you dislike to kill it. If any ​country ever possessed the right to drive out its criminals instead of punishing them, it was Callfornia, for the ruffians that infested her shores were not of her own breeding. They had come from older countries that had no right to uncage them; from communities prim and puritanical, that regarded with pharisaical reprobation the land upon which they had emptied their prison-pens.
Well, Ned came to California, and coolly took his seat upon the judicial bench. Quite an agreeable change from a Pennsylvania penitentiary to a California court; as marked a change as was that of his friend Casey, from Sing Singing to supervisoring. Doubtless, now that he was justice of the peace, he thought lie was a better man, a reformed, a very good man. The wicked poor he punished roundly; the wicked rich he made pay him handsomely. Could Solomon have dealt out justice more wisely?
One day an attorney who had known him of old had a case in his court. The lawyer had but lately landed from a long and tedious passage round Cape Horn. Some of his fellow-passengers had manifested their joy at landing a little too loudly. Ned's party was nervous in those days and abhorred noise almost as much as light. Besides, there was money in it. The passengers were arrested for disorderly conduct, and asked their friend the lawyer to conduct their case for them. At the hour appointed for trial the passengers' attorney entered the court-room and took his seat. The judge had not yet arrived. Presently a bull-doggish face emerged from a side door, the owner of which stepped upon the judge's platform, laid his sword cane and deeply craped white "plug" upon the desk before him, took from his pocket a large red handkerchief and blew loudly his short upturned nose, and with pugilistic grace and dignity seated himself upon the bench.
The lawyer looked and was bewildered " I have seen that face before," he thought. "Can it be? Surely ​
I am not mistaken." Unable to restrain himself further he arose to his feet.
"Is it Edward McGowan I have the honor of addressing? " blandly asked the attorney. " That's my name," said Ned, rmming his fingers through his well-oiled hair. The attorney was satisfied. His course was clear. Turning to his clients he said:
"Gentlemen, you have no use for me. You may as well come down heavy with the coin first as last; it is your only chance."
Among: other court notices in the San Francisco Evening Picayune of the 20th of August, 1850, appears the following: " Justice McGowan's court. An interesting case came off this morning, interesting because several interesting young ladies appeared as witnesses. Thomas Jackson claimed $200 for wages as barkeeper against Eliza Crothers and her husband, Owen Crothers, and presented as evidence in his behalf Miss Maloney and Miss Margaret Waring, two young ladies of rare attractions and fashionable apparel. The judge, of course, could do noticing less than render a verdict in favor of the plaintiff."
Throug^hout the whole viojilance excitement of 1856 the courts were treated with profound respect by the committee except in the few instances where they interfered with the performance of the line of duty marked out by the committee. Not so the criminals, in whose estimation courts of justice seemed to have sunk into contempt. On the 28th of May, one John Brown, whose impudence was equalled only by his egotism, was called from the mayor's dock.
" Who are you ? " demanded the mayor.
" What is your name ? "
" I am a sea-lawyer. I shipped before the mast as a matter of form, but practised law in the forecastle all the voyage."
" Was your court recognized by the captain ? " ​
"Yes, about as much as yours is by the people."
" Beware, sir. What have you to say for yourself? "
" I deny the jurisdiction of the court," exclaimed the prisoner, "to try the case, on the ground that this court has no legal existence, the people having taken the authority into their own hands. I am prepared to argue the question if I be permitted."
"Have you no other defence?"
"Yes, I am a friend of Bill Lewis and Billy Mulligan," said the prisoner.
"Why, the man is mad!" exclaimed the mayor; "I will send you before the county judge to try the question of your sanity."
"You will find I am not crazy."
"Silence, sir!" thundered the mayor. "Officer, take him away."
Probably the most notorious of all our supreme judges was Hugh C. Murray, a man utterly abandoned in character, immoral, venal, and thoroughly corrupt. Even in those days of unblushing laxit}^ he was prominent for impudent indecorum. Among gamblers he was always at home, and could deal faro with the best of them ; of drinking saloons he was a constant habitue, having^ lono; scores at all the firstclass bar-rooms of Sacramento and San Francisco, lor he seldom paid for his drinks, or for anything else which could be obtained upon credit. Shuulderstrikers were his friends, lewd women his companions; he was a Californian Caligula, with his adherent politicians, gladiators, and courtesans.
As supreme judge, the profits were surer than in dealing monte. To anyone having a suit which should be brouo;ht before him, he did not hesitate deliberately to become indebted, neither side ever expecting payment. Though wearing a bland and polished exterior, inwardly he was as stumpy, misshapen, and graceless as a Scandinavian troll. And what made it the worse for the country was that ​
from his decisions there was no appeal—only from Hugh Murray drunk to Hugh Murray sober We say that he was so self-adaptive to circumstances as to quickly become a Californian; but of a truth such men were California; they were one with the land, and sea, and sky of the California flush times; it was they, with other elements intermingled, who made the country what it was, and without all of which California would not have been California.
Murray was of the chivalrous school, genial, gentlemanly, with a host of friends, and many admirers. Like the epicurean Atticus, he was elegant in his tastes and easy in his morals; selfish he w^as, as most of us arc, but he was of the self-indulgent type rather than that which fosters unkindness or indifterence to others. He was a very able judge, and even when bought by one side, he could render a most plausible opinion. Like some others of his class, he carried with him a superstition which he called his honor, which led him into eccentricities past the comprehension of ordinary minds. For example, though he would gladly sell an opinion, he objected to giving the transaction that name, and the money must not be paid to him direct. Then again, after a debauch, he was particular about paying the gambler, but cared little for the claims of the liquor and cigar-seller, while the tailor and launder he would not insult by the offer of money. This disgraceful honor of his compelled him to pay the man who took from him his money giving him nothing in return, while to him who of his substance clothes and feeds him he may, if it pleases him, give nothing. But when honor compels a person who has received an injury to invite the one who gave it to shoot him, we must not expect to understand all its subtle ways, for undoubtedly the honor these gentlemen are so careful to humor must be a thing of importance.
A man of repartee was this chivalrous upright ​judge. When candidate for the supreme bench, he was met one day by Brannan.
"Murray," said Sam, "you must have a devihsh deal of impudence to run for that office; what do you know about law 1 "
"That's just what's the matter, Sam," replied Murray, "I don't know much about it, and I am too lazy to study. If I am elected, knowledge will flow m upon me spontaneously. Every lawyer who comes before me will be a teacher, and I will reap the benefit of his studies unworn by midnight vigils."
Suits involving large amounts, where both sides bid for a favorable decision, called forth Judge Murray's utmost skill in legal legerdemain. It was scarcely the thing to take a bribe on both sides; honor would not permit it; with honor lost, all is lost. But if a litigant should make the judge a present wholly on account of his genial company and fine social qualities, or should the judge be asked to keep a sum of money until called for, would this prevent an honorable judge from receiving a bribe on the other side? Such were the points the early magistrates were obliged to decide, and which very often proved a severe strain upon their learning to do and at the same time to satisfy and conciliate both sides.
Justice at Sutter's fort during the autumn of 1848, like everything in that vicinity at that time, was greatly demoralized. Gold was the cause of it. The quiet hills and sleepy canons suddenly became pandemonium. Soon after the discovery of gold at Sutter's mill, several stores for the sale of general merchandise were opened at the fort. Some of these were within the walls, occupying the angles of the enclosure, and others standing without. Merchants and miners there met and exchanged their commodities; and as round this traffic, like thirsty flocks about a spring, strag ​glers began to settle, two alcaldes were chosen, a first and a second, following the Mexican fashion.
Among the storekeepers of the place w^as one Pickett, afterward surnamed "the philosopher," so that Philosopher Pickett, which, indeed, is but another name for Fool Pickett, became famous throughout California. Now Pickett unfortunately shot a man dead in self-defense; and Pickett must be tried for it. It was the duty of Bates, first alcalde, to place the homicide under arrest. But Pickett was a man of pronounced proclivities; and to handle him roughly was regarded a little dangerous. Bates promptly resigned office. The second alcalde, Fowler, was then urged to perform the same duty, and he also resigned.
Sam Brannan, the man of emergencies, and one who feared neither philosopher nor fool, was then the chief merchant of the place, his store bemg in an adobe building east of the fort. Brannan called a meeting of the people to consider the matter. This was before the days of popular action jure divino, when to punish informally was infinitely worse than not to punish at all; hence it was thought necessary to hold an election for the purpose of filling the vacancies caused by the resignation of the trembling officials. One alcalde, however, was deemed sufficient, and Brannan was chosen for the position. A prosecuting attorney was likewise required, but no one seemed to relish the office, as each person nominated immediately declined and proposed another. Finally Brannan was obliged to accept that office also. A sherifl' was then elected, the offender arrested, a jury empanelled, and the trial begun. On being brought into court, which was held in a room on the western side of the fort, Pickett was requested to lay his arms on the table, which he did. On the same table stood a plentiful supply of brandy and a pitcher of water, of which judge, jury, prisoner, and spectators partook at pleasure during the trial; the brandy, from its rapid dis ​appearance, being evidently more to their taste than the water. Then the question seriously arose whether in a criminal court, where a man was on trial for his life, smoking was proper. Appetite presses a strong argument; precedent was found in the California women who smoked at bull-fights, executions, and funerals, and if ladies indulged in the practice, tobacco could not be out of place anywhere.
The trial proceeded; equity in its broadest forms alone was sought, but still there must be the form. At length the judge rose and began a plea for the prosecution.
"Hold on, Brannan," said Pickett, you are the judge.
"I know it," Brannan replied, "and I am prosecuting attorney too."
Brannan the pleader then addressed Brannan the judge in conjunction with the jury; after which Pickett arose, tossed off a glass of brandy, and made a telling speech, for he was an able man. As soon as it was over, the night being well advanced, the jury scattered, more intent on finding their beds than a verdict. Then the question arose "What shall be done with the prisoner? "Place him in confinement," said the judge. " There is no prison," replied the sheriff. "Put him in irons." "Got none," said the officer of the law. Making a virtue of necessity the judge then called the ayes and noes, whether the prisoner should be admitted to bail. The ayes had it. The prisoner took from the table his rev^olver and bowie-knife, and marched off. Next day the jury were drummed together, held a conference, and disagreed. A new trial was ordered and the prisoner acquitted.
In the spring of 1849 an election was held for municipal officers in the town of Stockton. First and second alcaldes were wanted, and George Belt and James C. L. Wadsworth were elected. After the ​
election the boys voted themselves a banquet. A champagne supper was ordered and the electors made a night of it. In the morning the bill, amounting to $2,500, was divided equally between the newly elected alcaldes, and sent to them. Each paid his share, $1,250, without a murmur. Being unable to obtain a bible in the town, Mr Wadsworth says he used to swear witnesses on an old memorandum book. Horse-thieves were the most numerous class of offenders brought before him.
Let him who holds in low esteem youthful justice as manifest in the popular tribunals of the minhigcamps, and in the alcalde courts of the larger towns, during the flush times of California, read the following and then despise not the day of small things. Stephen J. Field, subsequently upon the supreme benches both of the state and of the United States, was in the rough year of 1850 alcalde of the roaring town of Marysville, so called from one Mary, a woman out of whom the seven devils were not cast. Field's first bench was somewhat ruder than his last one; and there was more difference still in the buildings which held the respective courtrooms. Indeed one of his first cases came up while walking the street; nor was this the first peripatetic trial or open air court held in California.
A well-known citizen riding a horse which he had just purchased was met by another citizen who claimed the anhnal as his own. Field passing by and hearing the dispute stopped. Naturally enough both men agreed at once to leave the matter for decision to their newly elected justice of the peace. Swearing the disputants where they stood, he heard the story of each, and decided in favor of the walking claimant, to whom the horse was immediately delivered. The judge's fee, an ounce, was cheerfully paid; and after adjournhig for a brief space to an adjacent saloon, the crowd which had gradually collected during the trial ​dispersed apparently well satisfied with their young alcalde.
The following story was told of W. T. Barbour once judge of the district court at Marysville. Afterward he was candidate for the legislature, and on election day was about the polls watching his interests. An unlettered mud-plastered voter, who knew neither his alphabet nor the candidates for legislative honors, approached Judge Barbour with a Douglas ticket and requested him to read it.
"With pleasure," said the judge, and he began to read, "for president, Stephen A. Douglas, for vice-president, Herschel V. Johnson."
"All right," said his unlearned friend, "go on."
So he read over the names of the electors. Again, "all right, go on."
"For senator, C. E. De Long."
"Yes, go on."
"For assembly, W. T. Barbour."
"Hold on, there; strike him off."
Barbour turned toward the man an eye of suspicion to see if he was being played upon, but nothing significant of sarcasm was apparent in the voter's features.
"Why, friend," said the judge, "what have you against him?"
"I don't like him."
"Do you know him?" inquired the judge.
"No, but I have heard of him, and that's enough. Strike him off; I don't think he ought to be elected to that place."
The judge touched the point of his pencil to his tongue, then slowly drew it over his own name.
"Whose will you have in Barbour's place?" now inquired the judge.
"Let me see; you may put in Magruder."
"Well, I'm sure," said the judge, "Barbour is as good a man as Magruder, but have your own way; you are entitled to vote for whom you please. But, ​
my friend, I know Barbour, and somebody has been slandering him to you."
So saying, and without waiting for a reply, he wrote down the name of Lloyd Magruder to take the place of his own, and read on down the ticket, name by name, but not another of them did his unlearned friend order scratched. The man then deposited his vote. The judge was beaten.
They used to do similar things in Ireland, if we may believe Curran, who gives the follo.wing examination of a witness:
"Did you vote at the election?"
"I did, sir."
"Are you a freeholder?"
"I'm not, sir."
"Did you take the freeholder's oath?"
"I did, sir."
"Who did you vote for?"
" Mr Bowles Daly, sir."
"Were you bribed?"
" I was, sir.
"How much did you get?"
"Five guineas, sir."
"What did you do with it ? "
"You may go down,"
"I will, sir."
Few places could boast of courts with speedier jurisdiction than Folsom and vicinity. By one justice a man was sentenced to be hanged within ten days, without benefit of clergy. By another, before whom three miners were brought for obstructing the highway, time was refused for sending for counsel; continuance of the case was next refused; then the court objected to both jury and witnesses; finally the men were tried at midnight, found guilty, and imprisoned. Next day they were brought before the district judge upon a writ of habeas corjpus, and discharged. ​
In the matter of a change of venue in a certian case which came before the district judge of the sixteenth judicial district in 1852, the defendant's attorney wished it to be sent to El Dorado county, while the district attorney chose Amador, Preferring the lawyers should settle it, and knowing that both prided themselves on their skill at cribbage, the judge suggested that they should retire to an adjoining room, and peg twice round the board. The lawyers agreed. After an absence of some twenty minutes they returned.
"Well, gentlemen," said the judge "have you agreed to what court your case shall be sent?"
"May it please your honor," replied the defendant's attorney, "you may send it to El Dorado."
"By how much? " asked the judge.
"Two points," was the reply.
In the minds of men accustomed to see punishment follow quickly their deliberations, there was no little difficulty experienced in segregating wholly practical results from theoretical forms. In the alcalde's court at San Diego, in 1849, a negro was tried for killing an Indian, before a jury composed principally of Americans. They found the prisoner guilty of manslaughter. Aware that their duties terminated at this point, and knowing that they had not the power according to law to pronounce punishment, yet, as there was no other tribunal at hand to sentence the offender, they appended to their verdict the penalty of one hundred lashes and one year's work with ball and chain.
The miners of the Stanislaus, not wishing to be behind other localities in assuming the forms of civilization, elected one of their number, their best man, justice of the peace. It happened soon after the establishment of this tribunal that a travelling attorney, carrying about more bluster and bowie-knives than ​
common sexise, in a case before the court laid down the law in such a manner as to call in question the ability of the unlearned judge to deal fair justice. The judge retorted in terms neither mild nor refined. The lawyer then declared that the judge took advantage of his position to insult him, and that if he would walk ten steps from the sacred precincts of the court he would give him a sound beating. Whereat the judge laughed inwardly, for of such was his strong suit, as he termed it; and rising immediately from his bench, and wringing the lawyer's nose by way of stimulant, as he passed out he punished the attorney until the latter was glad to go back and continue the case. And never again did that lawyer impeach the integrity or ability of a Stanislaus judge.
The alcalde of Badger hill was unwell; yet justice was healthful in his hands, and never slept. He had been elected by the miners and boarded at the Cherokee house. The court-room was wherever he happened to be. If working his claim, the nearest log or stump afforded a judicial bench; and any case which happened to come before him was disposed of with a disregard of forms and precedents worthy of Solomon.
He to whom the wronged of Badj^er hill looked for redress was an invalid. He sat up in his bunk to hear the case, while round his head was tied a red bandana. Green was the culprit; a large powerful man, and as cowardly as he was strong. He had borrowed forty dollars of little Shortey, borrowed it in the dead of winter when he lacked a pinch of golddust with which to buy a loaf of bread; and though he had a good claim, and was now taking out quantities of the yellow metal, he would not pay it. All the muscles in Shortey's body ached to angrily embrace the lubberly ingrate; but since the miners of Badger hill had a judge of their own creation, it was no longer deemed exactly the thing to ignore his office and ​
settle disputes, as formerly, by single combat. Time was when the right of fisticuff was the privilege of all; revolver and bowie-knife the common law of the land, to which he who would might virtuously appeal; but since justice was made incarnate at Badger hill, the miners had tacitly agreed that thenceforth muscle and steel should be subordinated to mind. They could trust the alcalde fully ; for he was a man after their own heart, who had "fit his fought" as often and as successfully as the best of them.
It was a cold rainy night, but in and round the sleeping-room of the Cherokee house were over two hundred miners assembled; men with long beard and tangled hair, patched pants, rimless hats, and toeless boots, for they scented fun if not blood. The plaintiff submitted his evidence; the defendant had little to say.
" Proved clar enough," decided the judge. " Shortey must have his money and this yer court her fees, and if yer won't fork over calm-like," turning to Green, " I'll send them inter yer camp what '11 take it.
" May it please your honor," exclaimed Shortey, "It ain't his dust I want; only let me whale him and I'll forgive the debt and pay the costs besides."
Thereupon Shortey "sailed in under kiver of the law," as the alcalde classically expresses it in his minutes. Green squared himself, trusting his bold front might be preserved to him by the sanctity of the place. The bystanders rushed in to prevent what the future historian of Badger hill might call a disgraceful scene. Meanwhile the judge jerked from his head the bandana, and springing from his bunk stood in short white robes between the crowd and the contestants.
"Gentlemen, stand back!" he cried. "Ef the parties to this yer action wish to effect a compromise, let 'em do it."
Green was then so soundly pummelled by the ac ​tive and energetic little prosecutor, that he was soon glad to buy escape by paying the claim and all the costs.
When men first began to steal along the happy foothills, the delving innocents regarded the matter lightly, often flippantly. A case is cited in which a man was taken before the justice at Downieville in 1850 for stealing a pair of boots. The justice was keeper of a saloon. The culprit was found guilty and adjudged first to restore the stolen property and then by way of fine to treat the crowd. The court and all present adjourned to the bar of the saloon to drink and joke at the criminal's expense. Ridicule is often a severer scourge than stripes. Regardless of the reckoning, and of the convict's ability to pay, drink after drink was called on and poured down the throats of the jovial assemblage until all, including judge, jury, and executioner became more engrossed in the pleasing pastime than in watching the prisoner, who, taking advantage of the opportunity, slipped out, packed his little property and was soon over the hills and out of sight. The chagrin of the justice may be imagined, who, when his bar-keeper summed up the bill for payment, found that his fine had been inflicted upon his own pocket.
High in the foothills, on the south Yuba, during the saturnian summer of 1850, stood a tented goldfield glorying in the name of Washington; glorying in its laxity and looseness, in its unincorporated social sentiment and dishevelled morals, in its free and easy justice and its alcalde of original rulings, and in its general indifference to Christian customs and institutions. Until recently the miners of this locality had revelled under the rule of an unhallowed theocracy, but eighteen hundred and fifty's fourth of July having just passed with the adoption of a name, which of itself should be sufficient for the maintenance of good ​
citizenship, it was determined that an alcalde should be chosen and civilization inaugurated.
Nor was choosing a magistrate regarded by them as a matter of little moment. He who should minister to them in judicial things must be learned in their whimsicalities; he should be equitable at the horserace and wrestling-match, honest in his dealings at poker, and withal of muscular powers sufficient to enforce the mandates of the court. Above all he must be a man of character and respectability, one who could treat the crowd easily and often, and wholly free from the effects of those stultifying studies originating in Sunday-schools and week-day lessons.
Now a stranger might think that in so small a community it would be difficult to find embodied in one person all the necessary attributes. But such was not the case. There was George Kelsey; if you had a thousand to select from, you could not find a better man. First, his great round tent, standing in the business centre, cool and pleasant by day and well lighted at night, would serve splendidly as a courthouse. True, the clarion note of justice might sometimes be drowned by the clinking of coin and the rattling of glasses; for in this greatest of buildings w^as conducted the greatest of businesses, the dealing of cards and the dispensing of drinks. But then, with cards and drink law would fit well, and as already the place was a dispensary of no mean pretensions, to medicines for mind and purse add one for conduct much needed, indeed, and Kelsey's law, drinking, and gambling saloon becomes an institution of which even the young ambitious town of Washington might well be proud. It was understood at the beginning that there should be no taxes connected with the creation of the municipality, and to find judge, courthouse, business, and refreshments all combined was certainly a fine thing.
As for character, George Kelsey could match ​Caesar's wife. He stood six feet two in his shoes, and was broad and strong in proportion. His head was large; he was thick-Hpped, snub-nosed, and corpulent as Socrates, and though his features were coarse and without much show of intellectuality, he had limbs and sinews like an emigrant's ox, so that what he lacked in mind he made up in muscle. When in the absence of the dealer he would sometimes seat himself at the monte table, his friends flocked round to win his money without fear of imperfect pack or waxed cards. Moreover, George possessed a coat, a relic of former days, and on extraordinary occasions he appeared in a white shirt. There was no fitter man for magistrate in all those parts than George Kelsey.
The principal business before a justice's court held in any of the towns along the Sierra drainage at this time was the settlement of disputes concerning mining claims. Thieving, highway robbery, and deliberate murder had not yet assumed the rank proportion of a year later, and such cases as did come up, the miners preferred to deal with summarily themselves. There was something stimulating, something resolute and audacious in thus dealing sinole-handed with the monster crime which well accorded with their humor. Peace was a commodity little coveted, so that bowieknife encounters and pistolings were left to take their own course, while in free fights the alcalde was more disposed to stand by and maintain fairness than to interpose his staff of office to prevent them.
Among other difficulties encountered by George Kelsey in assuming the somewhat hazardous position of arbiter between the diggers of Washington camp was that general indifference to court rulings and decisions common in the early history of Californian jurisprudence. If at any time during the progress of a case either party to the suit fancied his chances better without than within the pale of law, there was no . hesitancy on his part to drop proceedings, walk out of courtroom, and throw himself upon the miners, or ​
fight it out with guns and pistols. Such a case occurred within the classic walls of the round tent shortly after its proprietor had assumed the responsibilities of office.
Timothy Loker brought suit against Amber John — one of the positive and usually popular characters of the camp, so styled from the peculiar color of his somewhat wrinkled skin—for extending his claim up the side of the ravine beyond the limits allowed by the regulations, so as to include part of a spot staked off by one of Loker's men, for the mutual benefit of himself and his employer.
The case came up during the quiet hours of the afternoon while the miners were yet at work, and the town indulging in a semi-siesta preparatory to its nocturnal awakening. Behind a monte-table in the now well-nigh deserted tent sat the judge, ermined in the only coat the camp could boast, with the litigants before him.
It was evident from the beginnnig that Amber John was angry, and on his metal. Miners' justice was good enough for him. In five minutes the crowd at work out in the ravine could determine the rig^ht and wronoof it without all this round-tent clap-trap, and if that decision did not suit, they had only to fight it out. He didn't believe, in courts; they were useless, and a nuisance, but for once he would try it and see how it worked.
First of all he demanded that Loker should give security for costs of suit. If he wanted law, he would give him law; besides, he didn't believe any white man would go bail for the onery cuss. Loker, however, easily and cheerfully procured the required security, clinching the character of his bondsman as he laid the paper on the table by quietly adding, " who is well known to be in the round-tent interest."
It was now the defendant's turn to go through the same process and file his security, but when this was demanded of him he declined, coolly remarking that ​
he never had intended to pay any costs or judgment, or to abide the court's decision, but should lay his cause before the miners in mass meeting. Thereupon the plaintiff withdrew his suit, swearing that he had had enough of such nonsense, and avowing his purpose to settle upon the claim and defend it with his rifle. To this proposition the defendant heartily acquiesced, adding that, after all, the only way to settle differences amicably was to burn powder over them. Besides being the honorable and gentlemanly way, it was the only method which left no unpleasant feelings to stir up subsequent strife.
All which the judge marked with eyes and ears attentive; marked in dignified and meditative silence, with thought sluggish at the first, but gradually revolving, and with accelerated swiftness, until from the unwonted friction there rose to the eyes electric fire, and a red deeper and more indignant than that of rum suftused the face. How long should these things be ? How long should the blind goddess of the round tent be insulted by the vile rabble ? How long should appeals begun in prayer abruptly terminate in blasphemy? George Kelsey, alcalde or no alcalde—that was the next case to be tried in the round-tent, a case in which the arm of the law should appear in corporeal visitation.
Slowly rising, he stepped from behind the table and laid aside his coat. Insignia of oflice seemed suffocating just then. While bundled in dignity he was less a man than when facing upon common ground those who had elevated him out of himself Calling to the absconding litigants, he said, "Tim Loker, John, a word before you go. I question no man's right to carry his quarrel to any mill he thinks will grind it best; but once set in motion, the wheel of round-tent justice stops only at the master's bidding. You have honored me by elevation to oflfice; you have honored me by bringing here your cause; now I purpose to give you, Amber John, a sound thrash ​ing, for you have insulted me. Then under the subduing influence of a loaded revolver which will be placed upon the table, I shall proceed to try and determine this suit, after which we will call honors easy. Gentlemen, this is the first time since you elected me alcalde that my honor has been called in question. To my family in Missouri I am accountable for my conduct as a man, and to the miners who elected me for my conduct as a magistrate. I am a big man with a big heart; that is why they elected me alcalde, because I am a man big enough to execute the sentence proceeding from a big heart. I am no trickster; I know no law but common law, and that of the commonest kind; but as long as I am alcalde, I propose to deal out that quality of justice that suits me, and if it don't suit you, then select another man,"
At this juncture in answer to the judge's nod spirits appeared upon the table; mollifying spirits, whose presence seemed to soften the asperities of the litigants, but now bristling in bowie-knives and breathing bullets. *'Go on judge," they both exclaimed, as they drew near and poured each for himself a liberal potation. The case was continued without the punishment promised by the judge, whose words had answered in the place of blows ; and it is needless to say that the decision was in favor of the plaintiff who, as well as his surety, was "well known to be in the round tent interest."
Far below anything in quality that obtained along the mining belt in forty -nine or fifty is that disgraceful union of gin and justice occasionally found in later times. It was a very different matter, the early trial held in a saloon with the proprietor acting as judge, and the thing as sometimes seen to-day. Then saloonkeeping was a respectable occupation; now it is not. Then the best citizens frequented those places; now they do not. Respectability springs from conformity to the moral ideal of society, whether that ideal be right or wrong; and so does intrinsic worth, for virtue loves ​recognition. The gambler of 1849, other attributes being equal, was not so immoral a man as the gambler of 1889.
I find nowhere in the early records of jurisprudence on the coast anything which strikes me as so utterly humiliating to lovers of judicial decency, or which brings law into such low abasement, as a signboard which as late as 1877 disgraced the intelligence of the good citizens of Vallejo. Upon it was inscribed the words "C. W. Hiley, Dealer in Imported Wines and Liquors, and Choice Cigars; also Justice of the Peace,"
Law and liquor; happy union! Let not their former association be confounded with the later one. The interpretation of this sign-board of One-eyed Riley, as he was called, may be given in these words: American politics seek the low haunts of vice rather than the more retired paths of virtue. There is something radically wrong in the system which places the administration of justice in the hands that mix poisonous drinks for their fellows; that place the political power of a community at the disposal of the class that frequents and patronizes drink ing-saloons. In this instance the bar of justice and the bar of vile potations occupied adjoining rooms, communicating by a door which offered easy access one to the other.
As to the workings of this mongrel institution I offer a single illustration, which should be sufficient to incite the intelligent and enterprising citizens of Vallejo to a healthy reform. It happened one night during the early part of the year before mentioned, that two officers belongino; to a Russian war vessel then lying in the stream off Mare island had spent the evenincr ashore, and about eleven o'clock set out to return to their ship. Arrived at the wharf, they hailed a boat to take them off; and while waiting its appearance they were attacked and knocked senseless with a slungshot by a ruffian named Hollis Rand, ​
who thereupon proceeded to rob them, but was frightened from his purpose by a pohce officer, McDonald, brought to the spot by their cries. Rand made his escape; but was captured next morning and brought before One-eyed Riley. It appears that the robber and the judicial drink-seller were friends having: business relations, the former beino; a tenant of the latter, who, besides, was in arrears about $100 for rent. Rand was liberated on his own recognizance by Riley, and when the case came up for examination it was dismissed with little formality.
In June 1850 a fracas occurred among the judges at Marysville, in which contemptuous words, fines, and arrests were freely bandied, and weapons drawn by dignitaries seated on their bench in open court. Then the crowd without took the matter up, marched from the house of one belligerent justice to that of another, midst cheers and groans and the firing of pistols. Finally the mob dispersed, the excitement died away and nobody was hurt.
It was not an uncommon occurrence for attorneys and officers of the court during a trial to fall into disputes, become heated, pass the lie back and forth, and draw pistols. I know of one instance which occurred in the recorder's court at Sacramento as late as May 1856, in which a quarrel between the defendant's counsel and a testifying police officer threatened to involve the whole court-room in a fight. Peace being at length restored, the judge fined the attorney, who had given the policeman the lie direct, $100 for contempt of court; but an apology from the offender, in which the court was assured that the words were spoken in the heat of the moment, and with no intended indignity to the court, brought a speedy remission of the fine.
The Laura D. Fair trial is interesting in its psy ​chological aspect rather than in a professional way. Laura coveted money, but she coveted men more; she could love a little, but she could hate stronger; she could be insane somewhat, but her lunacy, which was of the emotional kind, was always subservient to her sense. If to see her lover kiss his wife made her a lunatic, wit waited on revenge to the instantaneous accomplishment of that which lay nearest her heart. With rare skill Laura gave in her testimony at the trial. It was very clear she was not insane then. It was very plain that she was not a lunatic immediately before and after the deed. She did not wish it understood that she was beside herself but for the moment, and like a mind lost in a mist of ever-increasing density, so was her giving of evidence, clear and vivid at a little distance from the deed, both before and after, but gradually growing indistinct, until at the moment of the murder all was opaque blackness. Her memory at that point was a blank. Hovering about the fatal moment were mingled facts and fancies hurrying hither and thither like imps of darkness, until she could not tell what was real and what imaginary. They were beyond her description, beyond her knowledge. A soul dropped by the messenger-angel upon a dark and angry ocean was not more lost to itself than was she at the time. Laura manifested no less ability in the escape than in the killing. Some of the scenes in court were quite characteristic.
"I am sure he was the only friend I had in the world," she exclaimed on one occasion from the witness-box. " I would not have harmed him for a hundred worlds. Had he been living, gentlemen, when Mr Campbell insulted me the other day, he would have made Mr Campbell on his bended knees apologize for it. " There were present certain sympathizing women of strong-minded proclivities, who took occasion at this juncture to applaud, such being deemed by them one of their denied rights. ​
•' Silence 1 " cried the judge, his face reddening for the unblushing females. " Officer, bring forward any who applauded." The officer after some search reported his inability to find such a one. Then spoke Laura :
"Judge, it was all my fault."
"Madam," said the judge, turning sharply upon her, " speak only in answer to such questions as are put to you. You are not blamed for the disturbance."
" Well, judge," replied Laura, " human nature could not stand it." Emily Pitt Stevens was now pointed oat as one who applauded.
"' Did you applaud ? " demanded the judge of her.
"Judge, I was not aware that I could not applaud in court," replied Emily.
" Did you applaud ? " cried the judge.
"I said ' good.' "
" What is your name ? "
" Emily Pitt Stevens."
" You applauded in court, did you ? "
" I said ' good ' and I put my hand down on the desk so."
" Did you make any noise ? "
" I made no noise with my feet."
" Did you with your hands ? "
"With my hands I did."
" You are fined twenty-five dollars."
" I will pay it," cried Laura.
" Thank you," smiled Emily.
Another of the sisterhood, Mrs Booth, was then accused.
"I did not applaud," said she.
"You did," answered her accuser.
" Judge," exclaimed the female rising and addressing the bench, " I was not aware that I could not applaud."
" What is your name ? "
" Mrs Booth."
" Did you applaud ?"
​"I stamped my foot, I was not aware that it was against the rules."
"Enter a fine of twenty-five dollars," said the judge to the clerk.
"I will pay it," put in Laura again.
"Thank you," said good Mrs Booth.
"You will have to draw heavily on your purse if you pay the fines of all of them," remarked the judge to Laura.
"I do not think, your honor, that these ladies understood the rules of the court," said Laura.
"Well, they understand them now," replied the judge.
A gay demoiselle of Pacific street, prosecuting in the recorder's court a lover, who one night while she was sleeping off the fumes of champagne rose from her side, rifled her room of its valuables and departed, was asked by the judge to state the particulars of the case, who she was and where she lived. Turning toward him with an arch smile, Angelina replied, "Ah! judge, you know all about it!"
Uncle Zeke was elected justice of the peace at Nevada city in 1852, and when called upon to take the oath of office it was for the first time ascertained that his name was Ezekiel Dougherty. A man arrested for horse-stealing was once brought before him and put upon trial. Evidence was strong against the prisoner, it being fully proved that he was a bad character. The prosecution rested, and the prisoner's counsel called a witness.
"I don't see what you want of witnesses," said Uncle Zeke.
"May it please your honor," replied the attorney, "the object of the testimony which I now propose to offer is to prove the general good character of the accused."
"What in hell is the use of trying to prove his ​
good character when he is already proved to be a thief?" roared the judge.
"Your honor, notwithstanding the one-sided evidence, the theft is not proved; moreover it is a presumption of law that a man is nmocent until he is proved guilty."
"Yes, my friend," concluded Uncle Zeke, "and there is another presumption of law, and that is that a justice of the peace is not bottomed with cast-iron. You may go on with your speech if you like, but I am going for my bitters right now."
Cerrutl tells the story of a scene which occurred in a justice's court at Sonoma while he was there engaged in writing from General Vallejo's dictation.
A Jew shop-keeper, at the instigation of his competitors, was arrested for violating the Sunday law, which decreed that all places of bushicss in California should be closed on the sabbath. The offender was fined ten dollars, which materially reduced that Sunday's profit. Thus forced to do reverence, the Jew thought he might as well keep his own sabbath as the Christian's, and so secure a better day for traffic here, and the seed of Abraham's reward hereafter. So the next week he sacredly regarded Saturday, and kept open shop as usual on Sunday. Arrested Monday morning, he was asked why he had transgressed the law a second time.
"I have broken no law," he declared; "I kept Saturday, which is the Jewish sabbath."
"Sir," said the judge, "do you propose to transplant Jerusalem to California? Clerk, enter a fine against the prisoner of twenty-five dollars."
Often in early times, as we have seen, justice and juleps were administered by the same hand; sometimes the storekeeper or the postmaster would add to his regular occupation the duties of alcalde. At Agua Frio we find in 1852 an unsuccessful miner metamor ​pliosed at one turn of the moon into doctor both of medichie and law. He did not hesitate even to accept the office of justice ; but he found it quite impossible to know all that was contained in books about the rendering of judgments. An important case was once before him in which one of the attorneys cited a decision of Justice Story, and opening the book began to read it, when the judge impatiently exclaimed : " Mr Wade, Judge Story was undoubtedly good authority in his day, but he won't do for this court.' This same medico-jurist owed a certain mechanic for work. Repeated dunnings proving of no avail, the man finally threatened to bring suit against the judge. As it happened, there was another hall of justice not far from Agua Frio, into which if our unlearned friend should fall he knew it would go hard with him, for the mechanic's claim was a just one. Meeting the man one day, the judge drew him aside and insinuated in a friendly though dignified manner, til at if he must brings suit it would be better for both sides that it should be done in his own court, thus saving useless trouble and expense. After some hesitation the man consented, made out his bill, $97 50, and handed it to the justice for collection. The suit then underwent all the forms usual in such cases; the justice issued summons against himself, acknowledged service, and fixed the day of trial. At the appointed hour the mechanic appeared in court.
"As I shall not dispute your bill, I see no necessity for calling a jury," remarked the judge.
"I agree with you," replied the mechanic.
"Then we will proceed at once to the examination of the case," said the judge. "Let me see, your bill is for $97 50. I admit the claim; you did the work well, and earned the money; I am perfectly satisfied. My bill against you is just $100."
"Your bill against me! What do you mean?"
"My bill for medical attendance; doubtless you have forgotten it; it was for that pulmonary attack, ​you know; it has been standing for some time. I should have sent it in sooner, I know ; I am very iiegHgent in money matters, but I do not Hke to inconvenience my patients."
"I remember, some seven or eight months ago, when sufiering with a cold, you advised me—"
"That is sufficient," broke in the judge. "You acknowledge the service. For that advice my charge is $100; in serious cases I never take less. I shall have to enter judgment against you for two dollars and fifty cents and costs, twelve dollars—it would l:ave been forty if taken to the other court—payable immediately, as it is a rule of court for all judgments to be settled at once."
There was no help for the mechanic but to pay the money.
John C. Murphy one day innocently borrowed without permission a horse belonging to William Gordon, a strong-minded magistrate of Yolo county. Hearing of it, the justice sent the constable after Murphy, who was brought before Gordon, tried, convicted, and sentenced to be hanged that afternoon. The magistrate was in earnest; and it was with the utmost difficulty, and only by appealing to his sense of fairness, and to his reputation as a magistrate in criminating a man where the judge was prosecutor, that delay was gained. Finally the case was referred to another court, and the prisoner discharged, greatly to the disgust of Gordon who immediately resigned office, affirming he would no longer be judge where he could not administer justice.
In the days when women were scarce and justice easy, Thomas A. Springer, magistrate near Georgetown, El Dorado county, divorced a wife one afternoon, and married her to a new husband the same evening. ​
In the spring of 1849 a small band known as the Texan company started for the southern mines. Among the members was one Richard C. Barry, who had obtained the title of major during the Mexican war, where he commanded a company of Texan rangers. Attracted by stories of the marvellous richness of the Tuolumne diggings, Major Barry and his party went to what is now known as Sonora. Emigration increased rapidly, and it became necessary that there should be a town organization, and Major Barry was chosen one of the justices of the peace. The position was one that gratified his pride, and filled the measure of his ambition ; he required his orders to be nnplicity obeyed, and the great dignity of his position to be respected. Justice Barry was a stout, red-faced man, of medium height, with an air of great resolution. His literary and legal attamments may be determined from the record of his rulings taken verbatim et liberatim from his docket, which consisted of loose scraps of paper carried about in his hat and pockets. His intrepidity and integrity of character elevated him to an office where coura^'e and resolution were often demanded. His court was omnipotent, and if disrespect was shown it a fine of from ten dollars to twenty ounces was imposed In his processes, forms, and ruling, he displayed a jiistesse de r esprit truly charming, as the following transcripts from his docket show.
Begin with case numbered 101. "In a caze where one James Knowlton brings sute again joss Sanchis fer felonously, and surreptiously, taking, stealing, and robbing the said James Knowlton, late of San Francisco. One buckskin purs or sack of gold-dust of the value of $4,000.
"After heering the evidence projuced in the case, I demand of Jose Sanchis whether he was going to plead guilty or not. Jose answered me thus, you find out. For which insolent, and abominable contempt of court I find him 3 ounces, and adjudged him ​
BARRY, OF TUOLUMNE. 631.
guilty. I sentenced him to restore the goold dust to the Court, and, to receive well lade on 40 lashes on his bare back, and to pay the Costs of the Court.
" Cost of Court 5 ounces which Jose not having I rooled that James Knowlton should pay. Deducted the amount and returned the balance to the owner James Knowlton.
July 9, 1851. RICH'D C. BARRY, J. P. U. H. Brown, Constable."
"In caze" number 516 the "Costs of coort" seems to be the idea momentarily ruling the judge's mind. *' This is a sute for mule steeling, in which Jesus Ramirez is indited for steeling one black mare mule, branded O with a 5 in it, from Sheriff Work. George swares the mule m question is hisn, and I beleeve so, too; on hearing the caze, I found Jesus Ramirez gilty of, felonously and against the law made and provided and the dignity of the people of Sonora, steelin' the aforesade mare mule, sentenced him to pay the cost of court, $10, and fined him $100 more asaterrourto all evil-dooers. Jesus Ramirez not having any munny to pay with, I rooled that George Work should pay the costs of coort as well as the fine, and in default of payment that the said one mare mule be sold by the constable, John Luney, or other officers of the court, to meet the expenses of the costs of coort, as also the payment of the fine aforesaid.
-R. C; BARRY, J. P.
"Sonora, Aug. 21, 1851.
"John Luney, Constable.
"N. B. Barber, the lawyer for George Work, insolently told me there were no law for me too rool so. I told him I didn't care a damn for his book law, that I was the law myself. He continued to jaw back. I told him to shot up, but he wouldn't; I fined him $50, and committed him to goal 5 days for contempt of court in brinsfino; mv roolinf]:s and dississions into disreputableness and as a warning to unrooly persons not to contradict this court." ​
Case 606 displays a little difference between the judge and certain attorneys: " This was a sute between two gamboleers. E. Krohe the gamboleer who sooed Sam Heed the gamboleer to recover 3,000 dolers won at ceards. After much swarin one way and another the lawyers, H. P. Barber and Leander Quint, argooed the caze, which after a long time they got through with. I discided that Barber was right, whereupon Quint said please your honor I never can get justice in your coort; putting out his finger and tliumb, i told him the likes of him in my country often lost their finders stealing: corn or chickens, and that if i had anything to say he never shood have justice here. I ordered him to hold his tung and shet up when he went out of coort he began to grumble again; i ordered John Luney the constable to arrest him and bring him into coort before me, which he done, and I then fined him $25 for contempt of court.
"Costs of court $100, which was paid.
"R. C. BARRY, J, P.
"Sonora, September 10, 1851.
"Constable."
Case 997 seems from the following summons to
have been one of a class not infrequent in those days,
which is judged first and tried afterward :
ucii. ± £■ r^ T-c ' "i To the Sh'ff or
otate OT Ualiiornia, f r^ , ^ ^ i»
/-, , m 1 > any Nonstable ot
County luolumne. l r.*^ . ,
•^ ) atoresaid co.
" Greeting :
"You are commanded to summons Maberry and Street to appear before me at my office on the eight day of November, A. D. 1851, at the hour of 9 o'clock, to answer to complaint filed in the court by D. T. Donnalld, where in he charges them with a nucense by putting a privvy on a lot which they have jumped belonging to pl'ff, as a possesor right he now comes to claim his right as an American citizen by claiming a writ to dispossess them to have restitution according to law, with appropriate demmages for the ​imposision now about to be carried out against him by sich high handed and mercanary arrovvgance on the part of the Accused.
"Sonora city, November 5, 1851.
"R. C. BARRY, J. P."
The duties of coroner devolved upon a justice of the peace. Barry had a pecuhar mode of recording liis procedures, which is best illustrated by quoting from his writings.
No. 3. "George Williams who cutt his throt with a razor October 20, 1850. Having heerd the evidense it is evident it is a case of felloday see. Said Williams had no property that I could find out.
"Justice fees, $10.
"R. C. BARRY."
" No 5. T. Newly killed by Fuller who shot him with a gunn, January 30, 1851, I found no property on the diseased. After trying Fuller and finding him gilty, he was comitted by me, and sentenced by the cort to two years' confinement. He broke jale and run off."
" No. 1 6. Inquest on the boddy of a Chileno boy, one of Snow's murderers, hun'*- hy the mob on Dargun creek, June 25, 1851. Noboddy seems to no who did it, he deserved to die."
A knotty case arose at Calaveras in 1852, which is not settled to this dav. Provender durino; that winter was very scarce. One night several donkeys, the property of certain well-known citizens, ruminating upon their hungry lot, encountered a clothes-line, the only one in those parts which could display among its gray and woolen bunting, that bloodtingling sight, a sacred white petticoat.
No sooner had he espied the prize than lifting up his voice, the oldest donkey blew loudly his horn, whereat he and his comrades made a general attack. Soon the clothes-line was cleared and the shivering bowels of the mules were comforted with a coverinsf ​
of divers garments such as men and women use. The question for the Themis of the foothills to settle was whetherthese clothes, so safely locked within hairy peripatetic trunks, might be recovered by action of replevin or left to digestion. A Chinaman who was asked his opinion replied "Jackass eaty Melican man shirt, belly good, belly good 1 "
An account of a law suit in the mountains given by an eyewitness, pictures the justice seated on a claret-box before a fire in his splitboard shanty frying a beefsteak for his dinner. The defendant enters.
" How are you judge. Isn't it time to begin the trial ? This is the fourth time I have come here; first the plaintiff was not ready with his witness, then your honor was absent, and the third time the plaintiff's witness did not swear to suit him. Now I think we had better try the case before another justice as I want you for a witness myself"
"Await the arrival of the others and we will see," replied the judge, cutting off a piece of the steak and beginning to eat. While thus engaged the plaintiff enters with his attorney.
"Well, judge, we are ready; don't want any witness. I'll tell you the story and that will settle the matter. My client owed the defendant fifteen dollars, and was the owner of a horse which he turned over to the defendant with a writing^ statins; that if he did not pay the fifteen dollars within ten days, the defendant might sell the horse and pay himself out of the proceeds. The ten days passed and neither the money was paid nor the horse sold. Now we tender the money and sue to recover the horse. That's the whole of it; now take a pen right away and render judgment in favor of the plaintiff."
"The defendant wants me for a witness," said the judge, munching his bread and beef-steak, " and therefore asks to have the case brought before another justice, but I don't think it necessary." ​
"No, no," exclaimed the lawyer, '*0f course not," echoed his client.
"Yes, it is necessary," persisted the defendant, "and I will have the case tried in another court."
"Try it where you like, but we'll fix the business here now. Don't you think I can give my evidence in this court as well as in another ? " demanded the judge. Then rising, but without being sworn, he testified what he knew of the matter, and resuming his seat without another word, he entered in his docket judgment for plaintiff,
" That's right, judge," said the lawyer, who thereupon immediately witlidrew.
" What I " exclaimed the victim of these summary proceedings, "render a verdict without a trial ? How can you act as witness, jury, and judge all at the same time ? I'll tell you what I will do—"
"Do what you damned please!" said the judge as he arose from the table, wiped his mouth with the back of liis hand, and started for his mining claim.
A territorial legislature and county officials had just been chosen by the people of Washington, and John W. Champ, justice of the peace, and Charles W, Denter, constable, opened the first law court ever held at Showlwater bay, and entered upon their first case.
All which proceedings the o3^stermen of this beach regarded with profound contempt. What did they want with law ? The country had been able to get along Well enough without it so far. The people were disposed to be peaceable. All had their ow^n affairs to attend to; tiieir rights and wrongs were very simple. Each found it pleasanter to be friends with all the rest, to have their good opinion and fellowship than their enmity; if a disturber of the peace dropped from some pass'ng ship, he was quietly advised to continue his rambles, and not stop there. If wdiisky assumed the sovereignty, a little fist-fight would ​
usually heal all feuds, and bring the belligerents to their senses. Law was not wanted at Showlwater bay, but new they had it they must use it. Nobody thought of "oino; to court until the court came to them.
Champ was a tall, muscular Vermont er of sixty-five, whose inner qualities as microscoped by rye whisky were craggy; Big Charley, as Denter was called, was dropped on Showlwater Beach by a Maine whaler as too lazy for the service. Two better men for their respective positions could not have been found by searching diligently with a candle; it is a peculiarity of our political system that certain offices are better filled by manikins than men. The first case was Public Opinion against Bowman. Bowman was a waif; how he lost himself no one knew. The Beach did not want him. Give him things to v,atch, and more of them would be missing than if left exposed. Mr Russell lost a small sum of money by him in that way. Before the establishment of a court the man would have been hunted hence, and that would have been the end of it, but law was master now. Besides, the justice wished to try the new machine.
Against Bowman there was neither prosecutor nor proof; but these slight impediments were easily surmounted by Champ, who was not hampered by legal knowledge.
The unitea wisdom of the Beach produced a paper which seemed to touch the evil remedially, which was made to take the place of what in more experienced courts would be a warrant for the arrest of Bowman. This was placed in the hands of the constable, whose wholesome fear of the obnoxious straggler, together with his constitutional aversion to either mental or muscular exertion, rendered the servino; of the warrant, as it was supposed to be, a serious matter. By one idea alone his mind was filled as he dragged his slow limbs through the sand. How should he get the man before the judge ? Assuming an indifference ​
which he was far from feeHng, he entered a boatman's hut where Bowman happened to be quartered for the time, and asked for something to drink. Bowman replied that he had none, of which fact Big Charley was well aware, otherwise the man would not be sober.
"Old Champ has just got a demijohn of first-rate whisky," said the constable, "let's go and get some."
"That suits me," replied Bowman, whose thirst for the ardent was unquenchable.
Approaching the unfledged hall of justice, they found the squire feeding his chickens. Seeing his first order thus so promptly obeyed, the judge gave a final flino- to the wetted bran which he was scatterino; to the infinite satisfaction of the poultry, and entering the courtroom with unusual alacrity, took his seat, a crowd was gathering, and within the hour the reputation of the tribunal would be forever fixed.
"Order in court!" began the judge, with as stern an expression as he could call up on so short a notice. Then turnino; to Bowman he began:
"Well, sir; what have you to say for yourself?"
"Nothing in particular, judge; have you any whisky, here?"
"Whisky! exclaimed the judge, somewhat angered by the unhallowed intimation, "do you take this for a rum-mill, sir? What have you been doing, hey; guilty or not guilty?"
"Capital, judge," replied Bowman, with a not altogether happy smile. "You would always have your little joke ; but where's that new demijohn of whisky; I'm as dry as a cured salmon."
"I'll salmon you for bringing this court into contempt," cried the judge, whose irate emotions were now running away with his syntax. "Do you know that you are arrested, sir; that you are on trial, sir?"
"No, I did not know it," was the reply. "What is the charge?"
"Charley, you lubber," said the judge addressing the constable, "didn't you show him that paper?"
" Of course I did," was the reply.
" That's a lie; I haven't seen any paper."
" Order in the court 1 " roared the judge. " Give him that paper, you big lump of whale blubber, and lawfully arrest William Bowman, in the name of the United States."
Big Charley handed the paper to Bowman, who opened it and read as follows: "You are hereby commanded to leave the bay within twenty-four hours or receive twenty-five lashes. And may the Lord have mercy on your soul. John- W. Champ, justice of the peace."
" This looks more like a vio-ilance notice than a warrant of arrest," said Bowman. " Of what am I accused, and by whom?"
"Accused ! " exclaimed the judge, " Of everything, and by the whole Beach. You know you stole Mr Kussell's money, and that you are a pirate and a red rover,"
"Who says I stole money; who makes such a charge, and who are the witnesses," said the prisoner, now fairly aroused.
" See here. Bowman," replied the judge. " We don't want any witnesses in this matter. You know all about it without beino; told; and as for the charo-e, I bring that myself, and to. save time I wrote out what you had to do, and that's the end of it."
"Court was then adjourned; Bowman was put upon a vessel for Astoria, and thus terminated the first legal trial at Showlwater bay.
Not long afterward a deserted sailor, called Bob, was discovered stealing a pair of shoes from a store. The oystermen from what they have seen of the new machinery at Champ's, thought themselves fully as capable as the United States to act in the matter; so without going near the judge they whipped the offender and shipped hira down the coast.
The registrar of the United States' land office may ​
not punish for contempt, hence those bringing cases before him may be as behigerent as they please In the case of Ketchum versus the State of Cahfornia, before Mr Haverstick of Los Angeles, among the attornej's on either side were Mr Gould for plaintiff and R. M. Widney for the defense. Ketchum himself was on the stand, and Gould was examining him ; both sides indulged freely in invective.
"What became of Lachenais ?'" asked Gould of the witness.
" He was hanged by Widney and others."
Widney rose from his seat, and drawing from his pocket a pistol, and holding his hand down, as one draws and holds a handkerchief, thus addressed the witness:
"You say I murdered a man, you lie, you perjured villain. I was not present when Lachenais was hanged, and knew nothing about it. If you and your party are armed to assassinate me, as I have been informed is your avowed intention, now is your opportunity."
" We are not armed," said Mr Gould.
"Then I will put away my weapon," replied Widney. "And in continuing the case this afternoon. I wish to have it distinctly understood whether we come together armed or unarmed."
Mr Llaverstick ruled that the case was to be continued by unarmed disputants.
A case came up in the district court cf San Francisco in September 1852, which shows how widely separated are justice and the jury in many suits at law. It illustrates at the same time how impatient of forms and technical restraint is the material composing our juries, and how utterly foolish and fickle are jurymen sometimes, and how farcical are many of our jury trials. Suit was brought by Green against Minturn for certain improvements on leased land, which improvements had been valued by an appraiser at ​
$4,000. Green had refused to abide by the decision of the appraiser, and so brouglit the suit. The trial ended, the jury brought in a verdict of $8,000 for the plaintiff, stipulating that no imputation of unfairness should lay at the door of the appraiser. The judge told them that the hitter clause of their verdict was superfluous, and must be stricken out. The jury atrain retired, and in a few minutes broutrht in a verdiet for the defendant, with some $500 costs which the plaintiff must pay, whereat the court and all present smiled audibly.
A Sacramento court-room was the scene of a somewhat undignified emeufe on the 16th of June, 1852, growing out of squatters' troubles, respecting which there were still many smothered feuds. No sooner was the court adjourned at noon than one McKune, of whom the associate judge, Wilson, had made some disparaging remarks, stepped forward and demanded an apology. This his honor refused to make, when McKunc and a friend of his, Caulfield, attacked the judge, and beat him over the head with a walkingstick. Judge Wilscm carried a sword-cane, which he drew, and plunged the steel into the body of his assailant. Pistols were then employed ; Caulfield fired once and the judge once. The jail-keeper rushing between the combatants received in his body the ball intended for the judge. There was great excitement throughout the city respecting the affair, and much talk of lynching.
A prosperous mining district always furnished the courts an abundance of business, and the lawyers fa,t fees. Titles and bounderies to claims were the chief causes of dissension, and if the contestants were able, their advocates had no difficulty in making them pay well for indulging in the luxury of law.
Jesse Niles, made magistrate of Donkey ville by an overwhelming majority of the people, was a long, sin ​ewy, hard-fisted, and thick-headed Indianian, who could read without spelhiig out any but the longest words, and if you gave him time enough could write his name. His decisions were eminently practical; hence lie was eminently popular. Legal lore was not pached between the coarse convolutions of his brain in such quantity as to wholly defeat the ends of justice. Rascality could not shield itself under cover of law, and a sworn alibi, in the face of undoubted evidence, carried little weight.
It was a great day for Justice Jesse Niles when the representatives of the two largest and wealthiest mining companies of Donkey ville district came into court with troubled determination in their faces. The McFarland company charged the Old Kentuck with trespass in having worked over on their ground. Justice Niles, as he fixed the time of trial, ran his fingers through his thick, tangled hair as best he could, with grave satisfaction. At the appointed hour both parties appeared in court; the jury was empanelled, and at one o'clock all were ready to proceed with the case. The foreman of the McFarland rose, stroked liis beard, and glanced round the room. The honor and dignity of the company had been placed in his hands, and he realized fully the responsibility of the situation. He was determined to leave no eftbrt untried to win for liimself laurels, and for his company their cause. Opening his mouth, in slow jerks he delivered himself:
"If the court please, and the defendant has no objections, I propose we adjourn for five minutes," meanwhile giving his thumb a lateral fling from his shoulder in the direction of the Diana saloon, of which the honorable judge was proprietor. As a matter of course it did please the court, and the defendant was far too polite to object. After their comforting potation, the jury listened to the case, as presented by the plaintiff, with marked attention. Too sympathetic, by far, the defendant thought, for the good of his cause,
Cal, Int. Poc. 41. ​
and as the remedy lay only in the disease, he felt it incumbent on him also to ask an adjournment of five minutes. And these pleasant little compliments were continued by both sides until by eight o'clock there had been no less than twenty adjournments,
TTnder the circumstances the judge was certainly excusable if in summing up the case to the juiy his ideas appeared a little confused, and his tongue somewhat thick. It so happened that one of the twelve, whose fate, he used to say, it always was to be placed upon the jury with eleven fools, and whose leathery brain no measure of the most villainous compound ever sold for drinking purposes could saturate,—it happened that this man gave mortal offence to the judge by asking in what book the law laid down by his honor could be found.
Now the judge was particularly sensitive about his method of expounding the law in his charge to the jury, as we all are sensitive in our vulnerable parts, and the frequent adjournments seemed rather to have increased than to have diminished his irritation. In his present state of mind, it seemed to him clear that the ermine had been insulted, and that the impertinence must be resented. With clenched hands and contracted brow, he fixed his angry eyes upon the juror.
"The book, is it," he exclaimed, "it's the law you want ? "
"Y-y-yes," meekly replied the juror. "I asked your honor where it might be found."
"Confound you, sir," roared the judge, " I would have you know when I tell you a thing is law, its law," and drawing a bowie-knife he made a spring for the offender.
The jury broke and ran, the infuriated justice hard after them, and for a time it was doubtful how this charge of the judge should terminate. At length reaching a hill outside of the camp, the jury scattered and were lost in the darkness, while the judge return ​ingr to liis bench was obliged, in deciding^ the case alone, to exercise the right of desperate necessity — jus in casu necessitatis.
A man in Plumas county, sentenced to be hanged for murder, appealed his case to the supreme court. Sometime afterward the sheriff seeing the case reported in the Sacramento Union as affirmed, hanged the prisoner. In a few days an order came reversing the decision of the court.
Two men fought at Cacheville one day. An impecunious lawyer regarded it speculatively. Stepping up to the victor he said: " Lewis, you can make him sweat for that; he struck you first."
" What do I care; I have sweated him enough already," replied Lewis.
"That's all very well," persisted the lawyer, "but he struck first; he broke the law, and it is your duty as a free American citizen to see the institutions of your country sustained. Give me five dollars and we'll sweat him."
" Well, I don't mind," grinned Lewis, as he handed the pettifogger the money. "Sweat him good, will you?"
" You bet; he will respect you. all men will respect you after this."
A warrant was issued and the beaten man brougj-ht mto court. The same lawyer who instigated the suit approached him confidentially
"See here, Sam; you've got yourself into a devil of a fix. Do you know you can be sent to the state prison for this. But I'm on the other side, Sam, and I can save you. Give me five dollars and you are a free man."
"Cheap enough," said Sam, as he handed over the money and walked out of court.
At the request of the prosecution a nolle prosequi was entered and the case dismissed. The lawyer was met by Lewis shortly after who accosted him. ​
"How is this; how about trial, example, and institutions? "
"Well you see the judge was against us; so rather than risk a trial I withdrew for an appeal—"
"A 'peal ? I'll peal you if you don't peal back that five dollars." The learned counsel pealed.
The following statement displays one phase of the workings of law, which goes far to show that it is often better to submit quietly to injuries sustained than to attempt redress in the courts.
" To the officers of Calaveras county.— Gentlemen: On the 24th day of February last, while travelling through your country, I was waylaid by a highwayman, who, after robbing the stage of Wells, Fargo & Co.'s express box, forced me to give up my purse, containing about eighty-three dollars. I am informed the amount obtained from Wells, Fargo & Co. was eighty-one dollars. On the next day the robber was arrested in your county, and no effort made to search him, except to take from him his pistol; neither was he searched for money nor identifying articles in his possession until he was incarcerated in San Andreas jail, although ho was known to have over one hundred dollars upon his person, until he had employed one Mr Hopkins to defend him, securing his services by giving him a portion of the money stolen from me. The prisoner was then searched and over forty dollars found on his person. I was summoned by the proper authorities of said county to appear in said San Andreas on three separate occasions, to wit; before the committuig magistrate, before the grand jury, and on the trial before the county court, to each of which summons I went as a witness from this city, my home. A few days before the final trial, the sheriff of said county expended a portion of the money found on the prisoner in purchasing him clean underclothing. On April 25th the prisoner, under the name of ​
Wright, was convicted, as charged in the indictment, of highway robbery, and has since been sentenced to fifteen years in the penitentiary, where he is now lodged and boarded at the expense of the state.
" Immediately after his conviction, I applied to the comity judge for mileage or traveling expenses, w4io refused to make any allowa,nce for either. I then applied to th3 district attorney, who claimed thirty dollars of the money in the sheriff's hands, as he hiformed me the law allowed it to him. I then applied to the sheriff for the money taken from the prisoner, who declined to pay out any of the money, except on the order of the judge, as several parties claimed it, to wit: The prisoner's attorney, the district attorney, and myself After the sentence of Wright, I applied by letter to the county judge before whom he was tried and convicted, for an order on the sheriff to pay the money to me. His answer is as follows:
San Andreas, May 1, 1877. 31'iIo Hoadley, Esq., San Francisco.
Dear Sir :—I do not think the court entitled to make any order directing the sheriff to pay over to you the money taken from Wright. It was in proof that money was taken from you by Wright. But that it was the identical coin was not proved, and even in the latter case would not have been under control of the court till after conviction. Your remedy was by a civil action for moneys had and received, commenced in justice's court. By attaching the cohi in the sherift^'s hands before the trial of Wright, you could have recovered judgment against him upon the conviction, and so received what the sheriff" held.
Yours, Respectfully,
IRA H. REED.
" If the law, as practised in your country, is the law of the state, it is time it was changed; and so long as such is the practise under the law or against the law, if I am so unfortunate as to meet another highwayman, I will settle the matter by a draft on sight or ​
1
pocket the loss, and I advise my friends to pursue the same course. As the money stolen from me has been appropriated to defend and clothe the prisoner, and as I have been compelled to pay my own expenses for over nine hundred miles of travel, besides occupying two weeks of my time, I may expect a bill from your county for board and lodging of the prisoner, as also the expenses incurred in sending him to the state board-house.
Respect funy Yours,
MILO HOADLEY. San Francisco, May 4, 1877."
A miner committed suicide on Feather river. A coroner's jury, a new institution in these parts, was empanelled, which after hearing and weighing the evidence, brought in a verdict that the dead man was " a damned fool."
Henry Lark, in 1854 justice of the peace at Amador, held court in the bar-room of the Magnolia saloon, that beino- his favorite resort when not enoao-ed in trading horses. One day Jim Wall, the sheritf, brouoflit in an Irishman accused of stealino;; messes of meat at different times from his neighbor's cabin. The justice was deep in old sledge with the barkeeper, Pitts, for a dollar a side, being far too shrewd to waste his time at any one-sided whisky game.
" Here, judge, give me your hand while you settle this business," said the sheriff, approaching the table.
" Git, and don't bother me," responded his honor. But recalling the dignity of his office as he raked in the dollar at the end of the game, he arose, and giving the sheriff his seat, threw his leg over the adjoining table, and with his eye took in the prisoner,
" Well, what you got to say for yourself?" at length demanded the judge.
" I beg," clearly and promptly fell from the lips of the bar keeper, ​
"Slieritf, keep silence in the court," interposed the judge. Then turning to the prisoner, he began again. " Well, sir—"
Sheriff. 'Cut the kerds, barkeep."
Barkeeper. " Run 'em."
Prisoner. " I was only borrowin' the mate, yer honor," with a most winning smile.
Judge. "Why didn't— "
Barkeeper. "No you don't, Mr Wall; put your little old jack on that ace, and no nigging "
Judge. "Either this court or that game must adjourn if you don't make less noise."
Barkeeper. "One moment, judge; count your game. Wall."
Judge. " How much—"
Sheriff. "Higli, jack, game."
Judge. "Silence in court!"
For a few moments the players were comparatively quiet while the judge continued the examination. At length the sheriff, again forgetting himself, cried out, "Six, and; rip ahead, old hoss!" The judge rose in anger, but as he turned toward the players he saw the king and ten of trumps in the bar-keeper's hand, and the case was instantly forgotten.
"Wall, I'll bet you five dollars your beaten," exclaimed the judge.
"Done!" said the sheriff "Come down with the cash; no fraud."
With cautious circumspection the point was played for. The whole attention of the judge was absorbed in the game. The sheriff won. Meanwhile the prisoner quietly withdrew.
"Fraud and cheating," cried the judge. "I fine you both ten dollars for contempt of court," and so concluded the trial.
Before the count}^ court of Lake county, in 1865 I think it was, D. J. McCarty was brought for whip ​ping his wife. The case had provoked much scandal, and the courtroom was crowded. The district attorne3% J. H. Thompson, had stated his case, and was ready with his witnesses, when a question was raised as to the admissibihty of certain evidence. The attorney offered to produce authorities to sustain his position, but as he was sk)w in finding them the judge became impatient, and ruled the evidence out.
"The deuce you do !" said the attorney, "I'll read you the law, and bet you a thousand dollars I am right."
"Silence, sir!" cried the judge. "I'll commit you for contempt of court."
"Commit and be damned!" said Thompson. "I know my rights, and intend to maintain them."
"Sheriff! Crigler!" roared the infuriated judge, "take Thompson to jail, and adjourn court for twentyfour hours."
" Neither Crigler nor any other man shall take me to jail," Thompson replied.
Crio-ler stepped forward to obey the mandate of the court, but seeing that in Thompson's air and attitude significant of danofer he hesitated. Meanwhile Thompson went on with his authorities, artfully mingling apologies with his remarks to the bench until the judge became pacified, and the trial proceeded.
In a justice's court, at one of the mountain towns of Calaveras, a case came up involving the ownership of a mining claim. The defendant was in possession. But the plaintiff claimed that he could prove a prior possession, and that the defendant had unjustly seized and held with intent to defraud that to w^iich he had no right or title. The plaintiff was represented by counsel, dressed in civilized fashion, the defendant pleaded his own cause. Witnesses were called on both sides, but their testimony was not of that kind which gave the jury confidence in placing either party in possession. After the comisel for the plaintiff had spoken, the defendant arose.
​"Gentlemen of the jury," said he. "I appear before you as my own counsel, a man of like passions and habiliaments with you, supported by the righteousness of my cause, and by an implicit confidence in your sense of justice. My opponent has summoned to his aid a lawyer, attired in a Shangha coat, and pitted him against an humble but honest miner. Gentlemen of the jury, is this proper; is it right? I have always been led to believe that the honest and intelligent miners of Calaveras would resist to the death the introduction of Shangha coats, and narrow-legged pantaloons. What then do I see ? What is my surprise to behold in this community of hard-working, bearded, and woolen-shirted men, fastened upon us like a black sheep, the thing they call a gentleman; a learned man, a lawyer, a shyster, one who | reeds broils, who lives by his wits, a shaved man, a soft-handed man; a monkey arrayed in patent-leather boots, white shirt, stand up collar, and black coat and pants. Fellow citizens we want no gentlemen or lawyers here. We are honest miners, hard-working miners, and capable of taking care of our own affairs, of making our own laws, of conducting our own trials, and of doing our own hanging. Are there among us any cut-throats, this man is their friend; are there here any thieves, or murderers, or claim -jumpers, this person will be to them as a brother—for a consideration. He it is who befriends the wicked, who assists those who will not work, those who live like himself by their wits. And as for my opponent, think you any man with a just cause would employ such assistance? No my fellow-citizens; such a course impeaches your intelligence, and brands him a renegade, an outlaw, and places him without the pale of the rights of humanity. I don't mean to appeal to your prejudices, but I can and will prove my prior possession to the claim in question."
Plaintiff. "That's a lie!" ​
Justice. " Fine the plaintiff ten dollars for contempt of court."
Defendant, "Assertion is not proof, neither are the bleatings of a black-coated hireling evidence; and when the plaintiff accuses nie of lying he insults the majesty of the law, the sanctity of justice, and the holiness of truth."
The jury retired to deliberate; and on returning into court the foreman took his seat as near as possible to the door. The verdict was then rendered that neither of the claimants had proved possession, and that the claim was vacant. The mine was a rich one, and if indeed it was now without a legal owner, the first upon the ground could take it up and hold it. Scarcely had the foreman delivered the verdict when he made a rush for the door, followed by the litigants, the lawyer, and the remainder of the jury, The race was a hot one, several arriving on the spot simultaneously, when a general melee set in for the possession, which was finally settled by a game of freeze-out poker.
Cut-eye Foster was Yreka's first alcaioe, and the year of his reign was 1851. He departed, with unseemly speed it is said, and left no docket. George C. Vail then assumed the duties of office, and no lawbook ever embarrassed justice in his court. Vail's docket should be placed among the curiosities of literature. In it the history of each case was fully written.
The following incident found recorded in its pages illustrates the ways of justice within this precinct. A lad came into court one day, a hard-working openfaced fellow, and complained that a certain man for whom he had worked all winter, and had driven a team from Oregon, had sold all his effects and was about leaving the place without paying him. The boy's appearance added truth to his story. With two constables Vail started after the man, and found ​him on the road with his back toward the town, making the best time possible, arrested and brought into court. He did not deny the boy's claim, but affirmed that he had not the money to pay it.
"Constable," said Vail, "take that man and stand him on his head; then shake him well, and listen if you can hear anything drop."
The prisoner was seized and the test applied; when from his pocket dropped a bag containing $2,000 in gold dust, out of which was paid the boy's claim of $300. The alcalde then adjudged himself and the two constables one ounce each, and after weighing it the bag of gold-dust was handed back to the man, who was then permitted to take his departure.
Scott Bar, Siskiyou county, in 1851 aspired to the dignity of possessing a justice of the peace. The candidates were Bill Simmons and Buffalo John. The friends of each were sanguine. Money flew, whisky ran like water, and the excitement grew intense. Buffalo John was the popular candidate, and the boys elected him without a doubt; but the three men on the board of canvassers were pecuniarily interested in the election of Simmons. Their only hope of ever getting certain money which he owed them was by making him a justice, so they declared him elected. Their plea was that Buffalo John had such a habit of opening his mouth every time he crooked his elbow as would disqualify him from wearing the ermine. An attempt was made to contest the election, but the decision of the board was unchangeable, and Bill was installed, and continued to get deeper and deeper in debt to his old friends until 1859, when he rolled up his blankets and departed for parts unknown.
A Truckee jury had been out four hours when the judge sent the sheriff to ascertain if they had found a verdict. As he approached the room the sheriff ​
hearing a great commotion stopped to listen. Then he called the judge, who had first an ear and then an eye to the key -hole. The tableau which presented itself should be engraved and hung in every courtroom where jury trials obtain.
In the middle of the room was a table on which stood a demijohn of whisky, a pail of water, and half a dozen glasses. There was much condensed comfort in the demijohn, as was evident from the attitude of the already hilarious twelve, who were marching in single file round the table. First was a man with a huge base drum upon his back, followed by the foreman pounding it with all his might. The third was a snare-drummer, and the fourth a juror with a shrill whistle in imitation of -a fife. The rest were sino-ins!'.
Suddenly the sheriff opened the door and the officials stood before them.
"Hello, judge," hiccuped the foreman. "We couldn't agree nohow, so we thought we would put in the time social like s' long as we were a congenial company."
William Blackburn was an alcalde at Santa Cruz in 1847 and 1848. As an illustration of his unique decisions, the story is told of a native Californian who quarreled with a countryman, and being defeated in the contest, revenged himself by shaving the mane of his antagonist's horse. The case was brought before the judge for trial; the horse was present as a convincing witness, and a crowd thronged the courthouse with curiosity to hear the judge's decision. After a deliberate examination of the witnesses, the malicious Californian was sentenced to receive punishment in conformity with holy writ, which demanded an eye for an eye and a tooth for a tooth. " Lead out the prisoner and let his mane be shaved in like manner as he served the horse," was the sentence, and its immediate execution afforded intense amusement ​
to the spectators. The judge then ordered that a saddle should be stuffed with the hair of the prisoner, so that justice might ride triumphantly upon the mane of vice. It was expected that the alcaldes would send their decisions to the governor and await his approval, but Blackburn, to secure speedy execution of justice, usually carried out his sentence first, and then reported to gubernatorial power. The only book employed in this court was a New York directory.
When the early administration of justice in California swelled from the alcalde's courts of the first instance, Santa Cruz becoming ambitious organized one of these superior tribunals, and appointed over it a superior judge: As all good jurists drank in those days, and as the legal learning of a judge was to a great extent measured by his capacity for carrying fiery liquids, by this measurement Judge Brown of Santa Cruz was a most able man. The depth of him was profound. Late into the night, and oftentimes all night, saw him at his mellowing devotions; and when next morning he took his seat upon the bench his head was seemingly so enlarged as to encompass the universe with all its whirling;; worlds.
One morning a Spaniard was brought before him charged with stealing a horse. The judge was scarcely himself that day; his faculties seemed benumbed, lukewarm, dissolved in space, neither in the genial glow of original potations, nor yet in a state of glcmous insensibility. He was, as he would say, betwixt and between; too good to go to hell, too bad to go to heaven, and fit only to swell the limhiis fatuorum of paradisiacal fools. At such times the unstable consciousness his mind could grasp was not of a happy kind ; on the contrary while having least control of himself he was most self-willed and savage, so that on this morning he was almost as boastful in speech and as merciless in heart as any of Homer's heroes. ​
Only a few days before, the judge himself had lost a valuable horse, stolen from a vacant lot adjacent to his house, which circumstance tended in no wise toward the restoration of equanimity or general amiability of the magistrate on the morning mentioned. The prisoner was a hard-featured, wicked-eyed man, whose appearance to the dimmed vision and cloudy brain of the judge now seemed absolutely hideous. Unfortunately, the two ideas of his stolen horse and the horse-thief here present came together, and went bobbincr and circling; throucrh his brain, until ioininsr in weird embrace, the pitching of the pair over some precipice into stygian shades awoke the judge with a start, and lighted for a moment his eye with dire intelligence.
"Pedro Castro, stand up! I believe you are the damned scoundrel who stole my horse. The sentence of the court is that before the sun shall set you shall be hanged by the neck until you are dead, de-ad, d-e-a-d."
" But, your honor," says the district attorney, **the man has not been tried."
" Sit down, sir! This court knows its business, and wants none of your interference. Mr Sheriff, see the judgment executed immediately; this court stands adjourned."
All present were astounded, but all knew too well the temper of the judge to trifle with him in his present humor; so the condemned was removed to prison while the judge went home and tucked himself in bed, with a bottle of his favorite fluid within reach, and soon was snoring soundly.
The officers of the court were in a dilemma. As a matter of course, the immediate execution of the prisonor was not to be thought of, but how to meet the anger of the judge when he should have learned that his order had been disobeyed ? After much discussion it was finally agreed that the clerk should enter judgment in the records, and the sheriff make return that he had executed the prisoner. ​
Next morning the judge awoke feeling unusually well. There are epochs hi the experience of a drunkard when the opaque mists befogging the mind vanish, and the return of hitelligence opens transparent as an arctic sky in midwinter, and this, too, immediately following a series of debauches. So shone the transplendent discrimination of the Santa Cruz judge as he smilingly took his seat upon the bench next morning sober. The courtroom was neatly aj^pointed. Before the judgment desk sat the busy clerk writing; every officer was in his place, attentive, while the uncovered spectators, awe-inspired of ignorance, stood with under-jaw dropped on their breast, or speaking one with another in low whispers. Glancing over the calendar, the judge called the case of The People versus Pedro Castro.
"Your honor," respectfully replied the sheriff, "the man has been hanged."
"Hanged!" exclaimed the judge, as forebodings of something fearfully wrong crept over him, "I do not understand you, sir; there has been no trial yet."
"No, your honor," said the clerk, "but yesterday, you will remember, your honor waived trial, sentenced the defendant, and peremptorily ordered the sheriff to carry the sentence into immediate execution."
" Hanged, did you say ? " meditatively remarked the judge as the situation gradually dawned upon him, " well, never mind, let the trial proceed nunc pro time. All orders and judgments of this court must be justified by due legal proceedings, and if the sheriff has so far erred in his understanding of the court as to lead to the commission of an unhappy blunder, the court will harbor no anger on that account, but will endeavor, so far as strict probity will admit, to reconcile the acts of the officers with the rulings of the court."
The sheriff thus mildly admonished then brought before the judge, whose learned complacency once more fully possessed him. the prisoner, who after a sober but speedy trial was duly condemned and executed. ​
The bench and bar of San Jose from the first numbered as many able jurists as might be found in any thriving town of equal size in America, To the more refined gravity of sedate societies their manner might scuui a little coarse, and their expletives irreverent, but their law, and the practical application of it, could not be questioned. The court of sessions of San Jose, in 1850, as then organized, exercised jurisdiction in criminal cases of the highest degree. Judge Rogers was a large, broad-featured, big-mouthed, Johnsonian sort of man, able, profane, and almost brutal in his vulgarity, yet withal, below the superficial asperities of his nature, genial and sympathetic.
One day It became his painful duty to sentence a INIexican who had been tried before him to death. The prisoner did not speak English, and the judge deemed it proper that the sentence, as delivered, should be done into Spanish. The clerk of the court being competent was asked to act as interpreter, but as he was a man of shrinking sensibilities, he expressed abhorrence at the thought of being the medium of comnmnicatino- the death intelligcence to a human beino-. There are moods in the temper of strong men in which impediment only excites determination. All early Californians had a smattering of Spanish. When the clerk declined the ofiice of translator, with a big round oath Judge Rogers swore he would make the man understand.
"You, sir, get up 1 levantate ! arriba! Sabe? You been tried; tried by jury; damn you! sabe? You have been found—what the devil's the Spanish for guilty ? Never mind—sabe ? You have been found guilty, and you are going to be hanged; sabe ? Hanged? Entiende?"
The Mexican was as courageous as the judge was coarse. Evidently he did understand, for with the characteristic nonchalance of his race, he replied, illustrating by signs and gurglings the hanging and choking process; ​