Western Judges and Juries
From an 1868 issue of Charles Dickens' magazine All the Year Round, London, England. The correspondent is unidentified.
FAR WESTERN JUDGES AND JURIES.
In the United States (and indeed also in Canada) there is no distinction between barrister and attorney, and, in the newer settlements, to become either requires little study. It used to be said that in some parts of Oregon all a man had to do to be admitted an attorney was to go round for some time with a law book under his arm, and talk "constitootion" in front of "grocery" doors. A gentleman of Oregon gave me a copy of a legal document, preserved in the archives of Marion County, Oregon, and written by an attorney (I knew the man) regularly licensed to practise. It is a demurrer to a complaint in an action, in which Marion County is the plaintiff and one G. B. Wagnon defendant, brought for the recovery of a fine for violating a statute in the disposition of estray animals. Part of it runs precisely thus:
"And now comes G B Wagnon the Defnat in the a Bove Sute or Cause And files a Demworer and says that the plaintiff Should not have Nor maintain his Action a Gainst Said Defanant for the following says there is not that plain and concise Statement of the facts constituting the cause of action as there is no De Scription of Cauller markes, nor Brands nor by hoom apraysed
"and further Says that he was not Seerved with a certifyed coppy of said Complant therefore the Defenant prays this honorable Cort to Dis mss the a Bove Sute this 8th day of December 1859"
Another attorney delivered a famous defence of a man who was caught in the act of stealing a hank of cotton yarn. It ran something like this:
"Gentlemen of the Jury, do you think my client Thomas Flinn, of Muddy Creek and the Big Willamette, would be guilty o' stealin' a hank o' cotting yarn? Gentlemen of the Jury, I reckon not, I s'pose not. By no manner of means, gentlemen, not at all! He are not guilty! TOM FLINN? Good heavings! Gentlemen, you all know Tom Flinn, and, on honour, now, gentlemen, do you think he'd do it? No, gentlemen! I s'pose not--I reckon not. THOMAS FLINN? Why" (warming up with virtuous indignation) "why, great snakes and alligators! Tom's a whole team on Muddy Creek and a boss to let! And" (insinuatingly) "do you think he'd sneak off with a miserable hank o' cotting yarn? Well, gentlemen, I reckon not. I s'pose not! When the wolves was a howling, gentlemen, on the mountings of Oregon, and the milishy was a fighting of the Injins on Rogue River, do you think, gentlemen, my client, Thomas Flinn, Esq., could be guilty o' hookin'--yes, hookin', gentlemen--that pitiful, low, mean, hank o' cotting yarn? Onpossible! Gentlemen, I reckon I know my client, Mr. Thomas Flinn. He's got the fastest nag, and the purtiest sister, gentlemen, in all Muddy Creek and the Big Willamette! That, gentlemen, are a fact. Yes, gentlemen, that are fact. You kin just bet on that, gentlemen. Yes, gentlemen, you kin jist bet your bones on that! Now, 'pon honour, gentlemen, do you think he are guilty? Gentlemen, I reckon I s'pose not. Why, gentlemen" (indignantly, beginning to believe it himself), "my client, Mr. Thomas Flinn, am no more guilty of stealin' that aer hank o' cotting yarn than a toad has got a tail. Yes, a tail, gentlemen! Than a toad has got a tail!" Verdict for defendant, case dismissed, and court adjourned to whisky up at late prisoner's expense.
Little as such law may be worth, it is surprising with what alacrity a young community of miners or backwoodsmen will attempt to form some organisation for the preservation of order according to law, and how naturally they proceed to elect a magistrate or "Judge" out of their number. This desire proceeds in part from a wish to preserve order, and in part from the all-engrossing passion for voting, holding "conventions," and "caucuses," and electing somebody to hold some office or other, with the usual amount of speechifying and drinking.
An old gentleman, with whom I passed many pleasant evenings on the Walls of Panama in days gone by, described to me his recollection of a court-room in a western state. It was a rough log building with a bar of unhewn timber stretched across it. This was the bar of justice. Behind it was a table with a jar of molasses, a bottle of vinegar, and a jug of water to make "switchel" for the court.
Time ten a.m. Enter Sheriff. Judge (who is paring his corns after the manner of the venerable Judge McAlmond, of San Francisco, who was in the habit of paring his corns while the business of the court was going on, and generally sat with his heels tilted up in front of him): "Wal, Mr. Sheriff, do you think we'll get a jury to-day?"
"Neow, judge, jurymen are raither scarce today; but I've got eleven men corralled under a black walnut tree outside, and my niggers are hunting deown a twelvth. I reckon we'll have a jury in about half an hour."
And so the sheriff proceeds to liquor, and the judge continues paring his corns until the court opens.
I was assured by a former chief justice of one of the states on the western slope of the Rocky Mountains, that the first grand jury he ever charged were sitting on the prairie under a tree, and there was not a man of them that had on any other foot gear but moccasins. And I know a judge who, in the earlier days of California, when everybody was "bound to make money," sat on the bench in the morning, mined during the day, and played the fiddle in a whisky shop at night. The county judge of Madison County, in Washington Territory, does (or did) "run" the "gang saw" in the Port Madison mills.
In these judges we often find the notion of law not very defined, though (which is more important) that of equity is strong. A most notorious "rowdy," from New England, who had escaped the law several times, was at last captured in the act of smashing the interior of a Chinese house of ill fame, in the little village of Eureka, in North California. Evidence against him was rather weak, and it was feared he would again escape. But when the prisoner was brought into court, his honour burst upon him with a tirade of abuse: "E-e-h! Ye long, leathern, lantern-jawed Yankee cuss, we've ketched you, e-e-h, at last? I'll commit him at once!"
"But, judge," whispered the clerk, "you'll have to hear the evidence."
"Evidence be blowed!" was the rejoinder. "Wasn't I thar, and see'd it all myself?"
Judge P. was holding a term of the district court in the village of Corvallis, in the then territory of Oregon. His court was held in a common log house, with a large open fireplace, and a few rough heavy benches, that had never known plane. An indictment was found against one Charley Sandborn for selling whisky at retail, although he had no licence. He stood at one side of the fireplace with his hands deep in his pockets; the judge sat upon the end of a school bench on the other side of the fire. When required to plead guilty or not guilty, Charley threw himself on the mercy of the court. The judge then sentenced him to pay the lowest fine and costs. At the close of the sentence, by way of personal palliation, his lordship remarked, "that while it was the duty of the court to enforce the laws as it found them on the statute book, the person of the court was not inimical to men who sold whisky."
There is in Idaho territory a judge who is well known as "Alec Smith." A woman brought suit in his court for divorce, and had the discernment to select a particular friend of her own, who stood well with the judge, as her attorney. One morning the judge called up the case, and addressing himself to the attorney for the complainant, said: "Mr. H., I don't think people ought to be compelled to live together where they don't want to, and I will decree a divorce in this case." Mr. H. bowed blandly. Thereupon the judge, turning to another attorney, whom he took to be the counsel for the defendant, said: "Mr. M., I suppose you have no objection to the decree?" Mr. M. nodded assent. But the attorney for the defendant was another Mr. M., not then in court. Presently he came in, and finding that his client had been divorced without a hearing, began to remonstrate. Alec listened a moment, then interrupted, saying: "Mr. M., it is too late. The court has pronounced the decree of divorce, and the parties are no longer man and wife. But if you want to argue the case right bad, the court can marry them over again and give you a crack at it."
I was at Clear Lake when an Irishman named Jerry McCarthy was tried in the county court on a charge of whipping his wife. A point of law was raised by the attorney for the defence as to the admissibility of certain evidence offered by the district attorney, "Judge" J. H. Thompson (for it is "judge" once, "judge" always), and the court called upon the attorney to produce his authorities to sustain his position. The attorney being rather slow in finding the law in point, the court, just as he had found it, and was rising to read it, ruled that the evidence was not admissible. "The deuce you do!" hallooed the district attorney. "Say, judge, I read you the law, and bet you a thousand dollars I'm right." "I'll send you to jail for twenty-four hours for contempt of court!" cried the judge. "Send to jail and be hanged!" cried the district attorney. "I know my rights, and intend to maintain them." The judge then called out "Sheriff Crigler, Crigler Sheriff, take Judge Thompson to jail, and adjourn court four-and-twenty hours!" Crigler advanced to obey the order, but halted upon seeing the district attorney put himself into a "posish"; at the same time shouting loud enough to be heard all over the town that neither Crigler nor any other man should carry him to jail. To make things sure, the sheriff called for a commitment; but while this was being prepared mutual apologies passed between the court and the district attorney, and the order was revoked. The court was then adjourned for a quarter of an hour, to allow, according to custom made and provided in such cases, of "drinks" being exchanged; after which the trial proceeded to its result in the acquittal of the defendant. If all stories be true, occasionally the court adjourns in less favoured districts, to allow antagonistic attorneys to fight out with their fists what couldn't be settled by their tongues. I witnessed once--not in a rough American territory but in the British town of Victoria, Vancouver Island--a "stand-up" fight between the "Honourable the Attorney General" and a client of the opposite party in a suit; and not long afterwards two of the most prominent of the members of the colonial parliament engaged in a like encounter. I mention this lest it might be unjustly supposed that these eccentricities are found exclusively in border parts of the United States.
One summer afternoon I happened to pass through a frontier village in by no means the newest State of the Pacific settlements. While my horse was baiting, hearing that the supreme court was in session, I strolled in. After passing up a rickety stair, thickly sprinkled with saliva, cigar ends, and sawdust, where the rough unplaned board walls were scrawled over with likenesses of "Judge" This and "Judge" That, and remarks upon them, personally, politically and judicially, I entered, by a rickety old door, a plastered room with a whitewashed board ceiling, but very dirty, and a floor covered with sawdust. On a few forms scattered through the room, lolled some "citizens" half asleep. They turned round at the sound of my jingling Mexican spurs, but finding that I was only a rough fellow with a buckskin shirt on, lolled back again and dozed off to sleep until aroused by some particular burst of eloquence from the lips of a linen-coated lawyer who was speaking furiously on the "jumping" of a mining claim. When anything particular seized the fancy of the "citizens," they would applaud in a lazy manner, and once or twice an enthusiastic miner in gum boots, with his cheek distended by an enormous "chaw" of tobacco, shouted "Bully!" "Good again!" and "That's so, judge!" But he was, I am glad to say, instantly quashed, though only partially put down; for he would still breathe out, in a lower tone, "Bully!" "Good on yer head!" and so on, and explain to me (in a stage whisper) the peculiar merits of the case, in which it would seem he was interested; for he was the only person present who cared anything about the proceedings. Except the lawyer's voice and the whispering of his excited client, there was no noise in the court but the fall of a disused quid or the squirting of tobacco juice.
The lawyers sat at a horseshoe table at one end of the room; most of them sound asleep with their chairs tilted back and their heels on the table before them. In front of them on a raised platform sat a gentleman without a waistcoat, but with a long and rather dusty brown linen coat, over a somewhat dirty white shirt without a collar. He, too, had his legs up in front of him, and was likewise chewing tobacco with a slow motion of his leathery jaws; for the heat of the day and the somniferous character of the proceedings seemed to have disposed him to sleep, like everybody else. Now and then he would incline his head, but only to squirt the rejected juice between his legs. Sometimes, when the lawyer indulged in unbecoming language in reference to the court, he would start up, and in the excitement of the moment miss his aim and squirt over among the sleepy counsel. Finally he had to charge the jury, which he did in a very sensible and thoroughly legal manner. He was a good lawyer and had been attentive to the case. However, in my eyes it detracted a little from his honour's dignity, to see him take the half-used quid from his mouth and hold it between his thumb and forefinger, while he charged.
In the course of the evening I had a chance of making very close acquaintance with "his Honour." The little village hotel was crowded with an unwonted concourse of lawyers and jurymen, and, when I made up my mind to stay over the night, the "proprietor" (there are no landlords in America) informed me that he "reckoned Judge ------ had the only single bed, and if I liked to put in with him, I might get to stay somehow." Not wishing to inconvenience his Honour, I preferred to pass the night in my own blanket, on the "stoup" or porch of the building.
I have seen a judge who is said, in pursuance of his duty as a magistrate, to have fined a man twenty-five dollars for shooting at another, but who also (swayed by his feelings as a man) mulcted the other in the same figure, for not shooting back again.
At the Cariboo gold mines in British Columbia lives a well-known Irish gold commissioner, whose common-sense decisions have gained great reputation throughout that section of country. On one occasion two mining companies came
before him with some dispute. One swore one way, and the other swore the exactly opposite way. The "judge" was nonplussed. "Look here, boys," at last was his sage decision, "there's no use you going to law about it. There's some hard swearing somewhere; where I won't pretend to say. You say this, and they say that, aye, and produce witnesses, too. What am I to do? Of course, if you insist I'll come to a decision; but I honestly confess it will be only a tossup. I tell you what's the best thing to do. You know my shanty down the creek?" All shouted in the affirmative. "Well, in that shanty there's a bottle of prime whisky, in which I will be happy to drink luck to both of you. Now, the first man there, gets the suit. Go!" Out of the court they rushed, down the creek, over logs, and over mining flumes, tumbling and rolling and running, with half the population after them, until they reached the cabin in question. When the judge arrived shortly afterwards, he found a stalwart miner firmly grasping the handle of the door. The whisky was produced, luck was drunk, and everybody went away, perfectly satisfied with the decision.
Most commendable, on the whole, is the patience evinced by these judges under the orations of long-winded and not very learned attorneys. The most extraordinary instance of patience was that of a judge in Illinois, who, after two wordy lawyers had argued and reargued about the meaning of a certain Act of Congress, closed the whole at the end of the second day by calmly remarking, "Gentlemen, the Act is repealed!"
Mr. Justice Begbie, of British Columbia, the terror of evil doers, and of too sympathising jurors, had occasion to caution a witness. "Don't prevaricate, sir, don't prevaricate; remember that you are on oath!" The excuse was, "How can I help it, judge, when I have such an almighty bad toothache!"
If the learning of the judge puzzles the witness, sometimes the dog Latin of the lawyers puzzles a judge. A short time ago, in San Francisco, a hotly contested case came on in a certain justice's court in the city, which is presided over by a magistrate with a strong antipathy to the dead languages, and all who indulge in the affectation of using them. Plaintiff having put in his complaint in due form, the
judge demanded what was the defendant's answer. Whereupon the defendant's counsel, who had been brought up under the old system and still had a lingering love for scraps of law Latin, responded, "May it please the court, our answer is that the same subject matter and cause of action in this suit was the subject matter and cause of action in a previous suit already determined, in consequence of which the question now raised before your honour, is res adjudicata." "Is what?" cried the judge, adjusting his spectacles. "Res adjudicata, if the court pleases." "Sir," roared the judge, "we allow no dead languages here. Plain English is good enough for us. The Practice has abolished the dead languages, and if you give us any more of your Greek or Latin I'll commit you, sir, for contempt of this court."
In the early days of California, one of these rough-and-ready dispensers of the law held a court on a Sunday, and sentenced a "greaser" (a native Californian or Mexican), according to the law then in force, to thirty-nine lashes, for theft; but on the prisoner's counsel threatening to apply for a writ of habeas corpus, on the ground that it was "unconstitootional" to hold a court on a Sunday, the judge declared, with a round oath, that rather than the (blessed) greaser should get off by any such pettifogging trick, he would carry the sentence into effect "right away." And then and there he applied the thirty-nine lashes (the law limiting them to under forty), remarking, when he had finished, that the lawyer had better reserve his "habeas corpus until the greaser's back got barked again!"
The Missouri sheriff might truly enough remark that "jurymen aer raither scarce." More than once a friend who knew the ways of the country has informed me, as a kindness, that "there wor a (blessed) jury trial agwine on down to Humbug City, and, as I reckon, the sheriff's darned run for jurymen, you'd better kinder work round clar of that loc-ality." If I asked, "How can I be a juryman? I am a foreigner, a stranger, a traveller, who has neither land nor lot, neither votes nor pays taxes?" "Ah, that would be mighty little 'count," would be the reply; "you hev paid taxes, for you paid your head money; and as for not being a resident, I reckon the sheriff'll soon make ye out a residence; and as for your being a furrener, it don't matter shucks; that's the very thing you'll be spotted for. The sheriff has summoned every citizen to coroners' and jury trials, and every other darned sort of trial, so mighty often, that they swar, if summoned much oftener, they won't vote for him next election. And as 'lection comes on in March, I sorter reckon he'll like to corral a coon or two who ain't got no vote."
At last I really was caught, and it was useless to remonstrate. The sheriff declared "jurymen were scarce, and I must just take a turn at it." To my astonishment, under the idea, I suppose, that I was "a right smart chance of a scholar," I was chosen foreman of the jury, and in this capacity assisted in sending a man to the States prison for two months, as a reward for his mechanical skill having been diverted into the channel of making bogus gold dust. We had considerable difficulty in arriving at a unanimous verdict, as two of the jury were personal friends of the prisoner. In this stage a backwoods-man, producing a pack of cards from his pocket, proposed that we should play "seven up" for a decision; or, if we objected to gambling, we could at least "draw straws for it."
At a little backwoods sawmill settlement called Alberni, Vancouver Island, an Indian had been stealing potatoes from a farm belonging to Mr. Sproat, the local justice, and in order to frighten this Indian, the man in charge, who was a Western backwoods-man, fired his gun vaguely in the potato-field ddirection. To his astonishment he shot the native dead. An inquest had to be held. The woodmen, of course, looked upon a slain Indian as a very light affair, and several came to Mr. Sproat and said: "You are not going to trouble Henry about this, are you, sir?" Mr. Sproat, being not only master, but a magistrate, had only to reply that however much he felt for the man's misfortune, he must let the law take its course. But where was a surgeon to be found, to make a post mortem examination? A careworn-looking man stepped off a pile of lumber where he was working, and said he was a surgeon. This statement being naturally received with some hesitation, he produced from an old army chest his commission, his degree, and ample proof of not only having been a medical man, but of once having been a staff surgeon. He soon produced a pea from the lung, and showed that the Indian had died from gunshot wounds in the chest. Evidence was produced in corroboration, one of the witnesses testifying that the prisoner had said, "Jack, I've shot an Indian." The "judge" laid down their duty to the jury, which was composed of twelve of the most intelligent of the workmen, and they were sent into another room for their finding. It was nearly half an hour before they returned. The foreman then said: "We find the siwash* [*Siwash, corrupted from the voyageurs' Sauvage, a savage, universally applied to Indians on the North Pacific Coast.] was worried by a dog." "A what?" the judge exclaimed. "Worried by a dog, sir," said another juryman, fearing that the foreman had not spoken clearly. Assuming a proper expression of magisterial gravity, his worship pointed out to the jury the incompatibility of their finding with the evidence, and again went over the points of the case, calling particular attention to the medical evidence, and the production by the doctor of the pea found in the body of the Indian; after which he a second time dismissed the jury to their room, and begged them to come back with some verdict reasonably connected with the facts of the case. They were away longer than before. When they at length sidled back into the room for the second time, the judge drew a paper towards him to record their finding. "Now, men, what do you say?" Their decisive answer was, "We say he was killed by falling over a cliff." The judge shuffled his papers together, and told the jurymen they might go to their work, and he would return a verdict for them himself. For a full mile every way from where the dead body was found, the country was as level as a table.
This jury was not so conscientious as another composed of the friends of some people accused of stealing pork: "We find the defendants Not Guilty; but we believe they hooked the pork."
All the Year Round, October 10, 1868, pages 429-432
Last revised March 1, 2009