Far Western Judges And Juries

Episode Transcript

Speaker 1 (00:00):
Part two of the American Far West seven mid nineteenth
century Views from Abroad by anonymous This LibriVox recording is
in the public domain Part two Far Western Judges and Juries.
In the United States, and indeed also in Canada, there

(00:21):
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
men had to do to be admitted an attorney was
to go round for some time with a law book
under his arm and talk constitution in front of grocery doors.

(00:43):
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 practice. It is a demurer to a complaint
in an action in which Marion County is the plaintiff,
and one G. B. Wagnan defendant, brought for the recovery

(01:07):
of a fine for violating a statute in the disposition
of stray animals. Part of it runs precisely thus, and
now comes G. B. Wagnan, the deaf neet in the
bow suit or cause and files a dem warror and
says that the plaintiff should not have nor maintain his

(01:29):
action against said defendant for the following says there is
not that plain and concise statement of the facts constituting
the cause of action, as there is no description of
Collier marks, nor brands, nor by whom sprayed, and further
says that he was not served with a certified copy

(01:51):
of said complaint. Therefore, the defendant praised this honorable Court
to dismiss the above suit. This eighteenth day of Decens
eighteen fifty nine, another attorney delivered a famous defense of
a man who was caught in the act of stealing
a hank of cotton yarn. It ran something like this quote,

(02:13):
Gentlemen of the jury, do you think my client, Thomas Flynn,
off Muddy Creek and the Big Willamette, would be guilty
of stealing a hank of cotton yarn? Gentlemen of the jury?
I reckon not. I suppose not, by no manner of means, gentlemen,
not at all. He are not guilty. Tom Flynn. Good heavens, gentlemen,

(02:35):
you all know Tom Flynn and an honor. Now, gentlemen,
do you think he'd do it. No, gentlemen, I suppose not.
I reckon not Thomas Flynn. Why warming up with virtuous indignation?
Why great snakes and alligator Tom's a whole team on
Muddy Creek and a hoss to let and insinuatingly? Do

(02:56):
you think he'd sneak off with a miserable hank a
cotting yarn? Well, gentlemen, I reckon not. I suppose not.
When the wolves was a Howland gentleman on the mountings
of Oregon and the milishing was a fightin' of the
Indians on Rogue River, do you think, gentlemen, my client
Thomas Flynn Esquire could be guilty of a hookin' Yes,

(03:18):
hookin gentlemen, that pitiful, low, mean hank of cotton yarn?
On possible, gentlemen, I reckon. I know my client, mister
Thomas Finn. He's got the fastest nag and the prettiest sister,
gentlemen in all Muddy Creek and the big Willamette. Bet gentlemen,
are a fact, Yes, gentlemen, that are a fact. You

(03:40):
can just bet on that, gentleman. Yes, gentlemen, you can
just bet your bones on that. Now, upon honor gentlemen,
do you think he are guilty? Gentlemen, I reckon, I
suppose not. Why gentlemen, indignantly beginning to believe it himself,
My client, mister Thomas Flynn, am no more guilty of
stealing than Rhonka cotting yarn. Then a toad has got

(04:03):
a tail, Yes, a tail, gentleman, Then a toad has
got a tail. Verdict for defendant, case dismissed and court
adjourned to whiskey up at the late prisoner's expense. Little
as such law may be worth, it is surprising with
what alacrity a young community of miners or blackwoodsmen will

(04:25):
attempt to form some organization 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
impart from the all engrossing passion for voting, holding conventions
and caucuses, and electing somebody to hold some office or other,

(04:50):
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 timbers stretched across it. This was the bar of justice.

(05:13):
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 in
her sheriff judge who is paring his corns, after the
manner of the Venerable Judge mc almond of San Francisco,
who was in the habit of paring his corns while
the business of the court was going on, and generally

(05:36):
sat with his heels tilted up in front of him. Wow,
mister sheriff, do you think we'll get a jury to day? Nah, judge,
jurymen are rather scarce to day. But I got eleven
men corralled under a black walnut tree outside, and my
niggers are hunting down At twelve. I reckon, we'll have
a jury in about half an hour. And so the

(05:57):
sheriff proceeds to liquor and the judge continue 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 footgear but moccasins. And I

(06:21):
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 whiskey 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

(06:43):
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

(07:05):
in northern California. Evidence against him was rather weak, and
it was feared he would again escape. But when the
prisoner was brought into court, his honor burst upon him
with a tiraid of abuse. Eh you long leathern letter
John Yankee, cuss we've castia at last. I'll commit him
at once, But judge whispered the clerk, you'll have to

(07:27):
hear the evidence. Evidence be blowed, was the rejoinderazntay Thar
and seated 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 loghouse with a large open fireplace and a
few rough, heavy benches that had never known plane. An

(07:50):
indictment was found against one Charlie Sandborn for selling whiskey
at retail, although he had no license. 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, Charlie threw himself
on the mercy of the court. The judge then sentenced

(08:13):
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
inimicable to men who sold whiskey. There is in Idaho

(08:33):
Territory a judge who was 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 mister H,

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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. Mister H bowed blandly. Thereupon,
the judge, turning to another attorney whom he took to
be the council for the defendant, said mister M I
suppose you have no objection to the decree. Mister m

(09:15):
nodded assent. But the attorney for the defendant was another
mister M not then in court. Presently he came in, and,
finding that his client had been divorced without a hearing,
began to remonstrate. Alc listened a moment, then interrupted, saying,
mister m it is too late. The court has pronounced

(09:36):
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

(09:57):
the defense 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,

(10:19):
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 content. A court cried the judge, send to
jail and be hanged. Cried the district attorney. I know

(10:42):
my rights and intend to maintain them. The judge then
called out Sheriff Kriggler. Krigler sheriff take Judge Thompson to jail,
and adjourned court four and twenty hours. Kriggler advanced to
obey the order, but halted upon seeing the district attorney
put himself into a position at the same time, shouting
loud enough to be heard all over the town that

(11:04):
neither Kriggler 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

(11:27):
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 favored districts to allow antagonistic attorneys to fight out
with their fists what couldn't be settled by their tongues.

(11:48):
Eye witnessed once not in a rough American territory, but
in the British town of Victoria, Vancouver Island, a stand
up fight between the Honorable 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

(12:09):
mentioned 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 new estate of the
Pacific's settlements, while my horse was baiting. Hearing that the

(12:30):
Supreme Court was in session, I strolled in after passing
up a rickety chair thickly sprinkled with saliva, cigar ins,
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

(12:52):
a rickety old door, a plastered room with a whitewashed
board ceiling, but very dirty, and a floor covered with
some 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,

(13:14):
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,

(13:37):
with his cheek distended by an enormous jaw of tobacco, shouted,
bully good again, and that 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 bull lee good on your head and so,

(14:00):
and explained 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,

(14:21):
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

(14:42):
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 the slow motion of his
leathery jaws. For the heat of the day and the
somniferous character of the proceedings seemed to have disposed to
to sleep like everybody else. Now and then he would

(15:03):
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 council. Finally he had
to charge the jury, which he did in a very

(15:24):
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 Honor'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

(15:45):
of making very close acquaintance with his Honor. 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 landlord
lords in America, informed me that he reckoned Judge blank
at the only single bed, and if I liked to

(16:07):
put in with him, I could get to stay somehow,
Not wishing to inconvenience his Honor, I preferred to pass
the night in my own blanket on the stoop or
porch of the building. I have seen a judge who
was 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

(16:31):
a man, molted 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

(16:54):
other swore the exactly opposite way. The judge was none plussed.
Look here, boys, at last was his sage decision. There's
no use to going to law about it. There's some
hard swearin somewhere where I won't pretend to say. You
say this, and they say that I am produce witnesses too.
What am I to do? Of course, if you insist,

(17:17):
I'll come to a decision, but I honestly confess it
will be only a toss up. I tell you, what's
the best thing to do? You know my shanty down
the creek, all shouted in the affirmative. While 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

(17:39):
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 whiskey was produced. Luck was drunk, and everybody but

(18:00):
he 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 worthy lawyers had argued
and re argued about the meaning of a certain Act

(18:22):
of Congress, closed the whole at the end of the
second day by calmly remarking, gentlemen, the Act is repealed,
mister Judge Begley of British Columbia. The terror of evildoers
and of two sympathizings jurors had occasion to caution a witness,
don't prevaricate, sir, don't prevaricate, Remember that you are on oath.

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The excuse was, how can I help a 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 Justices court in the city, which is presided

(19:07):
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

(19:30):
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 honor is Raise
adjudicata is what, cried the judge, adjusting his spectacles, Raise

(19:54):
a judicata 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 me any more of your Greek
or Latin, I'll commit you, sir, for contempt to this court.
In the early days of California, one of these rough

(20:16):
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 council threatening to
apply for a rid of habeas corpus on the ground
that it was unconstitutional to hold a court on a Sunday,

(20:38):
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 haby corpus

(21:01):
until the greaser's back had barked again. The Missouri sheriff
might truly enough remark that jurymen eer rather scarce more
than once a friend who knew the ways of the country,
has informed me as a kindness that there wore a
blessed jury trial of guan on down to un city.
As I reckon the sheriff's darn run for jurymen, you'd

(21:24):
better kind of work around, Clara that locality. If I asked,
how can I be a juryman? I am a foreigner,
a stranger, a traveler who has neither land nor lot,
neither votes nor pays taxes. Ah, that would be mighty
little count would be the reply. You paid taxes for
you paid your head money. And as for not being

(21:45):
a resident, I reckon, the sheriff will soon make you
out a resident. And as for your being a foreigner,
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 swore if summoned much oftener,

(22:05):
they won't vote for him next election. And as election
comes on in March, I sort of 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 take a turn at it. To my astonishment. Under

(22:26):
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 state's 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

(22:49):
at a unanimous verdict, as two of the jury were
personal friends of the prisoner. In this stage, a backwoodsman,
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 backwood sawmill settlement called Alberni,

(23:11):
Vancouver Island, an Indian had been stealing potatoes from a
farm belonging to mister sprot the local justice, and in
order to frighten this Indian, the man in charge, who
was a Western backwoodsman, fired his gun vaguely in the
potato field direction. To his astonishment, he shot the native dead,

(23:31):
an inquest had to be held. The woodman, of course,
looked upon a slain Indian as a very light affair,
and several came to mister Sprote and said, you're not
going to trouble Henry about this, are you, sir. Mister Sprote,
being not only master but a magistrate, had only to
reply that, however much he felt for a man's misfortune,

(23:52):
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,

(24:13):
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

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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 siewash was worried by
a dog. Footnote syewash corrupted from the voyageurs sauvage, a

(24:56):
savage universally applied to Indians on the North Pacific coast.
O 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

(25:19):
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

(25:42):
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 jury women they
might go to their work, and he would return a
verdict for them himself. For a full mile every way

(26:06):
from where the dead to 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. End of Part two.