USA > California > Tuolumne County > A history of Tuolumne County, California : compiled from the most authentic records > Part 15
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Mr. Oxley, appearing for the prisoner, said: "I shall be brief. Consider well, gentlemen, what you are about to do. Let to-morrow bear favorably upon the acts of this night. [Confusion, and much noise; cries of " Enough!"' " Enough!"] Will you not sustain the laws? Will it not be better that the just laws of our land should take their course ? [Cries of "No!" "No!" "Up with him!" "Damn the laws!"] Let him be confined in jail. Consider your course, and the great responsibility that you assume. Give time for reflection. Let calmness have time to come in. Do not, after you have taken this man's life, find that it is too late to do justice. I do not say that the prisoner is entirely innocent, but that there are many extenuating
circumstances. [Cries of "Short!" "Short!" "Enough!"] I expect to be short. I ask that the law may take its course. Let the prisoner have time, and let a proper investigation be had. Let time be granted. Let daylight be had for a fair trial. [Cries of "No!'' "No!" "Hang him!" etc.]
JUDGE. - "Hear Mr. Oxley." ["Enough!" "Enough!" "Drag him up!" "Damn him; he gave Smith no time!" "Hell shall not save him!"]
OXLEY .- "I shall not stop. I shall do my duty as be- comes a man. If the jury tell me to stop, I will, but not otherwise. Act calmly, gentlemen."
Here, loud cries stopped the speaker. Mr. Oxley pleaded earnestly and manfully, and in a way to win the lasting re- spect of even those men, who were so impatient to imbrue their hands in a fellow creature's blood; but uselessly, for, forced down by the multitude, he retired amid oaths and imprecations.
The case was now given to the jury, and they were asked to retire and consult. At this moment Sheriff Stuart arrived. Reaching the ground, he dismounted quietly, and walked around the outside of the ring to the vicinity
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of the prisoner, and, laying his hand upon him, demanded him in the name of the law and for the law. Some one immediately seized Stuart by the throat, while others rudely laid hold of him, throwing him back violently. With shouts of "The Sheriff!" "The Sheriff!" the crowd rushed forward, bearing Barclay and the officer far apart. The latter demanded to be released, and to be supported in the discharge of his duty; but at first in vain. Getting free some minutes after, he rushed towards the prisoner, who was then under the flume with a rope around his neck. Calling for a knife, and securing one, he made ineffectual endeavors to cut the rope, but while so engaged he received a heavy blow on the head from the butt of a pistol, while others laid violent hands upon him, tearing his clothes, bruising his face, and disarming him. Barely was his life preserved, and that only through the presence of mind of a solitary friend, who, at the risk of his own safety, clutched a bowie-knife aimed at the Sheriff's body.
The miserable prisoner, haltered by the rope suspended from the flume above, was drawn up by his executioners overhead, ascending with a savage yell from the multitude. No precautions had been taken to pinion the victim, and he, reaching upward, seized with desperate grip the rope, above his head, and held on with the force given by the fear of death. To break his hold, those above drew him up and let him down suddenly, several times, but still his powerful grasp held good. One of the executioners, lean- ing over the flume, called out, "Let go, you -- fool, let go!" Finally his strength gave out; the hands fell to his sides. Drawing up his legs, he gave a few convulsive movements, and then hung straight. All was over, for body and soul had parted.
The spectacle was well said to be truly horrifying: a human form, hanging by the neck, in mid air; a vast throng
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of men, shouting, yelling and jumping; while the red and lurid glare of torches and bonfires sent a horrid flash upon the terrible scene.
Of the two individuals who lost their lives so tragically on that day, John H. Smith was said to have come from New York, but whose parents resided in Philadelphia, where they were highly respectable people. He was an open-hearted, generous man, much esteemed by his ac- quaintances, and when free from liquor, was a quiet, peace- able and friendly citizen.
John S. Barclay was also from New York, where his mother and sisters resided. He had lived at Chinese Camp from the year 1850, and was highly regarded there. He was possessed of some means, and owned a good claim there. But in an evil hour he met the frail Martha, and, falling in love with her, married her, upon her promises of leading a new and better life. He justified himself for the killing of Smith, upon the grounds that he had a right to defend his wife from his attacks. Nor does this seem an extraordinary assumption at all.
To arrive at an understanding of how this matter was regarded at the time, the following quotations from the Gazette are reproduced, written as they were by one who certainly manifested no fear of mobs, on this or any other occasion :
"We are not, we never have been, and never will be, the advocates of mob law, under any form, or for any end what- ever. We live in a community of law; we have courts, law officers, and all the well established appliances of justice. We sustain them; all good men should do so, or there is no safety for any one. We ask any man who looked on calmly (if any could do so), what chance any one stood for justice with the throng of Wednesday? No reply is needed from us. The particulars that we give, speak for
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themselves. The District Court, under a good Judge, opens next Monday; the Sheriff was on the ground; the witnesses all live in Columbia; and justice was not ten days off; but the mob could not wait. We deeply, sincerely regret to give these details; it pains us to record these occurrences as having taken place in Columbia, and we would gladly omit them; but our duty as journalists com- pels us to publish them; they are a blot upon our town. We trust in heaven that this may be the last time we shall have to perform so disagreeable a task; and we congratu- late all those who have had no participation in these lamentable occurrences."
These are earnest, manly words-words uttered in defi- ance of the will and power of a mob whose numbers included a whole city; words that do not sound like the truckling, lickspittle froth that at similar times has disgraced the mouths of speakers and the pages of journalism.
The Hunter-Drake Shooting Affray.
Later in the year 1855 came the murder of Isgrigg by Bessey, and that of Sam. Poole by McCarthy, two cases, both of which grew out of low quarrels in ginmills, or deadfalls, and which do not possess sufficient interest to warrant a narration in these pages. Their mention is only casual, being intended to give point to the remark that the year of their occurrence was an exceptional one in the matter of man-killings.
A case which occurred in October of this year, although not resulting in the death of any party, had, from the well- known character of the principals, enough of notoriety attached to it to be worthy of mention. This case was the shooting of Drake by Hunter in the streets of Sonora.
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This occurrence originated in the difficulties that arose between the miners of Shaw's Flat and the different com- panies tunneling into Table Mountain, particularly that portion who were drifting into ground thought to belong to Shaw's Flat Mining District. The operations of the "La- ger Beer " Company infringing upon the " Virginia " Com- pany, brought about this state of things, which ultimately grew in portentousness until the greatest animosity pre- vailed between the rival parties. Shaw's Flat was con- vulsed; Table Mountain was (metaphorically) shaken to its center. No occurrence bringing the miners into opposition to each other had ever so largely and so generally ab- sorbed the feelings of the parties contending. The indi- viduals immediately concerned in the dispute exerted their utmost energies to secure success, nothing being spared that might reasonably be supposed to influence victory. The most eminent legal counsel were engaged, as well those who resided within the county, as others of eminence abroad. An array of these gentlemen, three upon each side, fiercely combated (after the manner of attorneys) with each other. Therefore, it was hardly a wonder that in such unquiet times blood was shed before the matter was ad- justed.
Mr. Hunter was a well-known attorney something of the browbeating, swaggering stamp, or, at least, whose reputa- tion partook largely of that order. He was a little, fussy man, doubtless disagreeable in private life, and who, with- out doubt, took advantage of the large latitude allowed at- torneys in their behavior toward witnesses. On the occa- sion of the hearing of the mining case, as counsel for the Table Mountain side, he took occasion to severely score Eugene B. Drake, a well-known and influential miner of the Shaw's Flat party. It would seem that though the legal fraternity of Tuolumne county in that time contained
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men who by intellect and general worth would have done credit to any bar, men in whom the community at large might feel the greatest pride as citizens and associates, yet no doubt some of them frequently allowed themselves to overstep the bounds which moderation had planted and which gentlemanliness had dictated, in a variety of ways. The utmost freedom seems, in some cases, to have been indulged in, and disinterested persons were, as is still not uncommon, frequently made victims of in the progress of a suit.
After the examination, which was so offensive to Drake, the parties met in the "Palace " saloon (then standing where Mr. Livingston's shoe shop now is), and came into personal collision, resulting in Hunter's being thrown by Drake, who was much the larger of the two. Following this came another hostile meeting, in front of the Placer Hotel (Turn-Verein Hall corner), when Drake seized Hunter, and pushed or threw him from the sidewalk. What occurred is well narrated in the testimony of W. T. Gilkey, a miner, of Shaw's Flat:
"I was present at the difficulty between Drake and Hunter. * George Michael came to me and said there was going to be a big row. Saw Drake in front of the Placer Hotel, talking with others. Hunter came up, and some one asked him what he thought of Shaw's Flat. He said, all right. Hunter passed behind me, crowding me from the hotel wall. He was moving toward Drake. Drake shoved Hunter from the sidewalk. Hunter turned and said: ' You have done what no other man ever did, and what no man can do and live.' I, with others, sepa- rated them. Drake said: 'Don't touch me; let me alone!' Hunter said: 'Gentlemen, keep away from me!' Hunter placed his right hand under his coat tail, on his right hip, then raised his hand, in which he held a pistol, which he
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cocked as he raised it. Saw the cocked pistol in his hand myself. Drake was slower; at first his pistol caught in his clothes, and he had to use both hands. A man had called out: ' He is drawing on you, Hunter!' I said: 'Don't you draw that pistol, Hunter!' I said it two or three times. All this time I had been holding Drake back, telling him to keep cool. Hunter was backing all the while. As he brought his pistol up I jumped out of the way. When he fired, Drake said: 'Oh, Lord!' and partly doubled up. Then he straightened up, and tried to run behind me to protect himself from the shots. Hunter fired again, and Drake fired twice in quick succession. Then Hunter fired again. Iran and got behind a pile of bricks. Hunter was all the time going back. People opposite called out: ' Hold your shots; hold your fire!' Hunter replied: ' I am all right; I have a shot left.' Drake had got to the opposite side of the street [Yaney's building] during the firing, and above the hotel. He said: 'Get a doctor; I am bleeding to death!' I ran to him, and assisted him to Dr. Kendall's office."
Although the testimony given by the remainder of the witnesses at the examination before Justice Wm. H. Ford is on record, the stories of all do not differ in any essential point from that copied, so the above may be considered a pretty accurate account of the affray.
It was found that three of the four shots discharged by Hunter had taken effect-one in Drake's left arm below the elbow, glancing up and cutting the main artery; the other two in the right thigh, about half way above the knee ; one shot passing through, the other remaining. He was taken to the Placer Hotel and attended by Drs. Kendall and Brown, who did all in their power ts save him, but it was only by resorting to amputation of the arm that they were able to do so. Several days later a second amputation of
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the injured member was made, and the patient slowly but steadily recovered.
Hunter was unhurt by his antagonist's bullets, but he was immediately arrested, and, after the examination, was held by Justice Ford to answer to a complaint of " assault to commit great bodily harm " before the Court of Sessions. Later, when Drake's condition was thought to be nearly hopeless, he was re-arrested, and his bail was fixed at three thousand dollars. Eventually he escaped punishment, as perhaps he deserved to.
In a subsequent page of this volume mention will be made of Mr. Hunter, as connected with a very celebrated homicide, which occurred at the time of the war, closing with this, his first prominent appearance before the public, the record of important events of 1855.
The Fandango.
There are some classes of subjects which the sober histo- rian, intent only upon presenting a plain and concise ac- count of events to his future readers, finds difficulty in approaching in a seemly manner. The historical style, un- bending to the lighter descriptions of comparatively trivial affairs, does not readily adapt itself to the uses of the writer who would fain employ his pen to interest the mind in its time of relaxation, arousing the merriment or en- chaining the sympathies of the curious reader. But the fact remains that there are scattered throughout the im- mense mass of printed matter which deals with the records of this county (as with the common history of every mining community in this land) a large number of interesting and often valuable reminiscences, mostly personal, and dealing oftentimes with individuals of prominence, that deserve
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and well would repay publication. The mining camps have furnished, and will continue to furnish, a limitless field for the exertions of the humorous writer. They were, and are, rich in pathetic incidents, and the names of those who have drawn upon this inexhaustible storehouse of wit, humor and pathos, are fresh in the minds of the English speaking world. But jokes, stories and pathetic scenes, it may be said, are not suitable materials for use in a book like this; nor is it the intention of the writer to include such in an undue degree, nor to give prominence to any subject outside the domain of the judicious narrator of facts. But there are subjects akin to the lighter walks of literature, of which a regard for the completeness of the historical picture compels mention. With so much of apology for straying from the narrow and well-beaten paths of history, a consideration of the memorable institution of the Fandango is appended.
Born in the mystic past, so far back, perhaps, that the time and place have been forgotten; ancient, so ancient that, like the pyramids, it has seemed old even at the re- motest epochs; perhaps even instituted in the Garden of Eden, suggested by the thought that the clothing of that date was, perhaps, aptly suited to the rise of the Fandango; nurtured in the warmer torrid regions, and penetrating northward, it found its chosen habitat, at last, in Spain. Crossing thence to Mexico with the gallant Cortez and his devoted band of heroic thieves and murderers, it came into fashion in that land of tortillas and frijoles, and taking on additional properties, it thrived apace among aristocratic hidalgos and lowly peons. The solace of the poor child of oppression, creeping forth at night from his mud hovel, the resort of the brigand whose time was given up half to robbery, half to love, it also served to while away the wak- ing hours of the grandee whose herds browsed upon a thousand hills.
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The national institution of a country whose people spread themselves over California, the Fandango, hither came, with all the concomitants of Senor, Senora, guitarra, enchilada and tomal, taking rank from the first as important in the public estimation, hardly equaled by the more ath- letic but less seductive bull-fight-twin spectacle; gross pleasure, cruel torture. Wherever the lazo was thrown, or the cigarito smoked, not far away throve the Fandango, in greater or lesser majesty. Taking on importance from the reckless prodigal support of the burly, red-shirted Ameri- can miner, to whom gold was but as the dust moved by the idle wind, the new importation waxed strong, furnishing an amusement not out of keeping with the men of that time. Its votaries were not alone the brutal and the igno- rant, for many a son of pious training, many a respected grey-headed former resident of staid and moral Eastern communities, were found pursuing the lascivious pastime through the merry mazes of the dance, while even the cloth itself, as we are told, disclaimed not the seductive blandishments of the dark-hued syrens, daughters of Terp- sichore, whose many twinkling feet and far-extending and lavishly displayed charms lent enchantment to the views of men in whom the hot blood of youth beat, untempered by any very severe asceticism.
Spreading wide their portals for the motley train, the Fandango house flourished, the arbiter of pleasure and of play. There the tinkling guitar, with soft, lascivious strain, kept time to the song from Italy, the step from France. The midnight orgy, the mazy dance, the smile of beauty and the flush of strong drink, for fools, gamesters and all, combined to energize the subject they pursued, giving both the devil and his dance their due, where fools' paradise might seem dull to what there passed through the fleeting hours of night.
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Various were the different styles of Fandangoes; improv- ing upon the unfastidiousness of their Mexican cousins. Sonora boasted among her five houses devoted to this spe- cies of entertainment, of a palatial center, wherein all that art and elegance might do was brought to their aid. In stylish and brilliantly lighted room, girt around and or- namented with priceless pictures, costly furniture, and lined with Venetian mirrors, to reflect back the scenes they witnessed, and provided with a bar, from whence the cost- liest liquors, the rarest wines, were dealt out with unspar- ing hand, grew the American edition of the Fandango in all its glory. There F-a, in all her youthful elegance and fashion, shone upon the gaze of wondering men, S- F- and E- D-, then infants in her arms. The polka is being done up in the style Parisian. There is a sort of Gallic fraternization about it that leaves the unso- phisticated beholder in doubt, like the citizen before the artist's picture, which is t'other.
But this Fandango is not the Fandango in its unsullied purity; for that, one must search further up Washington street, for the genuine article exists on the lot behind the "Long Tom," uncontaminated by the elevating influences of modern French or American civilization. Long before one sees the flickering light that warns the wayfarer of its presence-as warns the mariner the lighthouse that denotes the sunken rock-break upon the organs of smell the start- ling evidences of its existence. In the simon-pure Fandango the air is stifling; oxygen, like virtue and all decency, has long before taken its flight. Upon the scene the tallow candles cast a feeble glare, and the smoke of cigaritos and cheap and bad cigars fills the room with a dim haziness. Through the murky gloom the dancers are moving with a perfect looseness, a crowd of men, spectators of the scene, line the sides of the apartment, while the perspiring gui-
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tarist and the catgut-torturing fiend of the violin lustily horrify the drowsy ear of night with uncouth sounds from their dyspeptic instruments. "Hands across!" " Back again!" "Aleman left!" break through the foggy, murky atmosphere from the corner where stands the director, rendering into discordant English the calls of the cotillion; and the heavy thud of the miners' nail-clad boots empha- sizes the turns of each figure with double-shuffle, heel-and- toe and pigeon-wing. With a twang of the strings and a parting rattle of boot heels the dance ceases abruptly, and each male participant, gringo or caballero, leads his fair partner to the bar, to refresh her delicate nerves with a glass of brandy and water-a custom religiously adhered to at the conclusion of each dance, that " steam " may be kept up to the proper pitch.
In the crowd about there are mingled the extremes of cosmopolitan society. Every race under the sun seems to have sent its representative to honor the Fandango. On cither side sit swarthy, filthy, vermin-infested greasers, wrapped in dirty serape, and puffing cigaritos with imper- turbable nonchalance. The Sydney convict, with under- hung jaw and furtive grimace, comes next, elbowing per- fumed gentlemen in broadcloth, titled with Major, Colonel, Judge, or Alderman. In corners lounge handsomely dressed young gentlemen, having the appearance of clerks in mercantile houses. Sporting men are also there to assist in the display of animated nature ; and physicians and lawyers, the victims of clients and patients, or of hereditary laziness. The senoras, of brown complexion, of scanty habiliments, of plumptitudinous figure, urge on the merry rounds until the wee small hours approaching tell of ex- piring night; then homeward, not unguarded, under the gleams of Venus' star, hasten, with not reluctant feet, to silence and repose.
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For a respectable town, with high pretensions to good character, doubtless Columbia enjoyed as much excitement and commotion through Fandangoes as any place else. From the earlier days, the authorities of that city, with a feeling more nice than wise, attempted to patch up laws which were imagined to be suitable to the time and place, tending, as was thought, to throw an atmosphere of gen- tility around her institutions which was entirely foreign to the nature of the concern, and quite opposite to its spirit. As well might it have been attempted to impart a high de- gree of delicacy to a bull fight, as, through municipal regu- lations and enactments, licenses, and the watchful care of officials, ward off or prevent the natural consequences that flowed from Fandangoes.
The first Board of Trustees, in a formidable onslaught on the enemy, interdicted the use of drums and trombones, and the sweet sounds necessary for the measures of the giddy dance were prescribed to issue from the dulcet flute, the neighborly piano, the effeminate guitar, the agile violin. Thus did the first reform savor of peace and gentility. Died away the warlike roll of the drum, and the brassy voice of the trombone ceased from out the land. The law was triumphant; and save the wakeful cat, the hilarious he who runs amuck, and the watchful chanticleer, no sounds there were to break the dreams of the softly sleeping citi- zen. No more were the delicate nerves of valetudinarians to be shocked by the blare and crash of a regular fandango band in full blast. Next, fandangoes were ordered and directed to go out of operation upon Sundays, that they might no longer offend the day devoted to qniet, to repose, and the discharge of grateful duties for the manifold bless- ings enjoyed by man. This, the second measure of reform, partook of morality, and gave great satisfaction to the small but select portion of Columbia's denizens with whom a godly
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seeming was a desideratum. At a later date, midnight was also fixed as the hour of closing fandango performances, a law being arranged to meet this requirement. This, the third measure of reform, partook of quietude, of temperate indulgence. Thus, through the law, there were gentility, morals and temperance arrayed against the powers of dark- ness, in the guise of Fandango ladies, Fandango keepers and Fandango sharps.
These patchings, however, did not exactly serve the de- sired purpose; a Fandango, even if debarred of some of its historical properties and curbed of its full effect, was still a Fandango, and the later town authorities determined to hedge it around so as to prevent its spread, as an infec- tious disease is sometimes surrounded. They resolved, therefore, that but one establishment devoted to Fandango should exist within the corporate limits, and that one should be licensed and protected; which was as reasonable as declaring that there should be but one saloon, one gro- cery, one sausage mill. Later still, these town officers were seen recognizing two establishments, upon which a tribute of an enormous sum was laid for the privilege of keeping open. These and other ordinances were passed by them; but, despite the law, despite the shiftings and turn- ings of town officials, despite the old and new measures of gentility, of temperance and of morals, the institution re- mained, curbed and shorn of its original proportions, but still the Fandango as of yore. And the subject of abol- ishing them was never openly met, because the evil, if it be one, received the support of the great mass of the toil- ers, the power that always settles such questions.
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