USA > Idaho > History of Washington, Idaho, and Montana : 1845-1889 > Part 72
USA > Montana > History of Washington, Idaho, and Montana : 1845-1889 > Part 72
USA > Washington > History of Washington, Idaho, and Montana : 1845-1889 > Part 72
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The Rocky Mountain Gazette, a democratic paper, was started at Hclena about the last of August 1866, by Wilkinson, Maguire, and Ronan. It was destroyed in the great fire of 1872. The Beaverhead News, republican, began to he published at Bannack about the same time, by J. A. Hosmer, son of the chief justice.
The next newspaper established was the Independent, at Deer Lodge City, by Frank Kenyon, in October 1867. A half-interest was sold to John H. Rogers in May 1868, who assumed charge of the editorial department. In January 1869 Rogers purchased the entire interest, and, notwithstanding the name, ran it in the interest of the democratic party. In 1874 it was removed from Deer Lodge to Helena by L. F. La Croix, formerly of the Gazette, who purchased the material and good-will of the paper in company with McQuaid
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653
CHIEF JUSTICE HOSMER.
In the mean time Chief Justice Hosmer returned to Montana, in the district to which he was assigned by Governor Edgerton, and his duties were resumed in August. In his charge to the grand jury he reviewed the history of the vigilance committee, the necessity in which it originated, and the good which had re- sulted from it, but warned them that to continue their operations in the presence of an organized judicial system would prove detrimental to the best interests of society, and besought them to convince the people, by their thoroughness in searching out and punishing offenders, that the laws were sufficient for the pur- poses of justice.23 The judge soon had occasion to reprove the citizens of Virginia City for a laxity as great as the sternness of the vigilants had been strong. John Gibson having been indicted, tried, convicted, and sentenced to three years' imprisonment and a heavy fine, for an assault with attempt to kill, thirty- three names were appended to a petition to have his punishment reduced to a mere fine for assault, com- pelling the man to pay fifty dollars for the privilege of attacking another behind his back and striking him senseless to the ground, from which injury his victim was a long time in recovering. The reason given by the petitioners for their request was that it would be very expensive to the people to keep Gibson in prison, and the inability of the criminal to pay a heavy fine. It was a mere matter of dollars and cents, and not of justice or order, for which the chief justice very prop- erly censured the petitioners, while refusing to com- mute Gibson's sentence.24
and Kerley. A daily was issued in the same year. J. E. Kerley was born Aug. 12, 1840, and came to Cal. in 1853 by the ocean route. Learned the newspaper business, and worked in the offices of the Trinity Journal and the Mountain Democrat 5 years. In 1865 he went to Helena, Montana, and mined subsequently at Cañon ferry, and was in the grocery business. Finally he settled in Deer Lodge, became proprietor of the Independent, as above, and opposed hanging by the vigilants without trial. He served several terms in the legislature.
23 J'irginia Montana Post, Aug. 11, 1866.
24 There is a pleasant book, written by A. K. McClure of Pennsylvania, and published in 1869, entitled Three Thousand Miles through the Rocky Mountains, in which there is a good deal said about the administration of the
654
POLITICAL AND JUDICIAL.
Indeed, the absence of a penitentiary had been one, if not the principal, reason for the prompt executions of the vigilance committee. Now, persons convicted of offences for which they were sentenced to a period of incarceration not exceeding three years were con- fined in the county jail, those sentenced to a longer term being taken to Detroit and confined in the Michigan penitentiary by order of the government. The expense attending the journey of the United States marshal, and the opportunities for escape which were offered, made this method of disposing of crimi- nals anything but economical or satisfactory. These were some of the obstacles in the way of the smooth working of the judicial machinery. No capital offence was tried in the United States courts until in Au- gust 1866, when James H. Foster was tried for the murder of Philip Mallory, in Judge Munson's court at Helena, pronounced guilty, and sentenced to be hanged on the 5th of October. Foster's attorneys, however, managed to secure for him a new trial, on the ground of a defective indictment, but the grand jury again found a true bill for murder.
Montana was more fortunate than many other of the Pacific territories, in having for her early judges men of ability and integrity. Nor was it the fault of the people that crime sometimes assumed such magnificent proportions, but rather the lack of law-compelling
vigilants and the courts in Montana. The anthor remarks of Hosmer, that he 'started wrong in the outset-like a timid driver failing to wield the reins with vim in his first drive of a vicious team; and the team has measurably driven the driver ever since. Stern in his integrity, and well versed in the law, he does his part creditably in all things, save in exercising with a firm purpose the high prerogatives of a court of justice.' I have not found the timidity imputed to Judge Hosmer by McClure-at least not in any impor- tant matters. The same author finds Judge Munson too lax in his jurisdic- tion-yet Munson, single-handed, steered the judicial craft through the breakers of southern-democratic disorganization for a year, without losing his position or the respect of the people, who presented him with a gold watch as a testimonial in October ISGG. Williston, McClure describes as a martinet, ' who learned the duties and prerogatives of courts from his father, one of Pennsylvania's best judges in the best days of her legal tribunals;' and calls him 'fastidious, foppish, and genial.' This species of criticism, in which the wise men of the east love to indulge, howsoever it may satisfy a certain class of readers, only tends to render the writers contemptible in the eyes of those who know something of what they are talking about.
655
ADMINISTRATION OF JUSTICE.
machinery; for when the good men of Montana saw that the courts were unable to cope with crime, they arose as one man and cleansed the community of its wickedness.
Montana judges had to deal with many difficulties- with a large amount of perplexing business involving novel questions for which there was no law and no precedent, yet which made or unmade the fortunes of the litigants.25 They had to deal with crime much in excess of the usual average in organized communities, and to endeavor to suppress lawless hanging by the administration of legal justice, when they were per- fectly aware that the rule of law, on account of the embarrassments26 under which they labored, was not
25 Chief Justice Hosmer in his last charge to the grand jury gives a hu- morous picture of his court, which as a bit of history is valuable also. He says that he first organized a court in his district in December 1864. 'Most of the suits had been commenced when Montana formed a part of Idaho, and a nearly worn-out copy of an original house bill of the civil practice act of Idaho, with written interlineations and corrections, was the sole guide to the attorneys in making up a calendar of 80 cases. This worn and dilapidated pamphlet, dirty from constant use, and covered with paper so scribbled over that its original color was hardly discernible, was the vade mecum of bench and bar in all the early practice of the territory.' It was always being bor- rowed and getting lost. 'Anxious clients and eager lawyers attributed the law's delays more frequently to the absence of this peripatetic monitor than to any other cause ... The question arose concerning the integrity of this old book. Montana of herself had no laws. Should the laws of Idaho prevail ? or should we fall back upon the common law ? The evenings of a week were spent in the various arguments of the lawyers, and the question was at length decided. Close upon the heels of this discussion followed another of equal duration on the gold and greenback question; then another as to the legality of instruments in action which had not been stamped simply because there were no stamps in the territory. . . Our first court-room, the dining-hall of the Planters' House, was a model of rustic judicial architecture. Upon a long table, whose tottering legs threatened any one having the termerity to climb upon it with instant demolition, behind another table of smaller dimensions, ... on one of the stools which had served apprenticeship at the dinner-table, sat the judge, in the language of Milton, "he above the rest proudly eminent." ... In the arena below, the jurors, the bar, the suitors, spectators, prisoners, even the dogs, mingled together in incongruous confusion. Under all these seeming embarrassments, the course of justice was slowly onward ... An im- portation of Idaho laws superseded the worn-out house bill, and in a week's time a hall of ampler dimensions, suitably arranged, was provided for the court.' Virginia Montana Democrat, April 11, 1868.
26 Wilbur F. Sanders, in a chapter on the early judiciary of Montana, con- tained in his Notes, MS., says: Justice has not been done to the courage which enabled these carly judicial pioneers to step into such a community and so act as to practically drive the vigilance committee out of existence in a short period of time.' I would here make my acknowledgments for many favors received from time to time from the very able and public-spirited author of these manuscript Notes, who also contributes in effect the following remarks on Montana tribunals.
656
POLITICAL AND JUDICIAL.
so effectual in preserving the lives and property of the public as the action of the vigilance committee
From the time of the first settlement in Montana to May 1864 there was not an officer authorized to administer paths or the laws in the territory, aud no organization, if we except a partial organization of the county of Mis- soula by the legislature of Washington, where there was a single justice of the peace. Yet for two years there had been a number of considerable set- tlements in the territory, and property, real and personal, of great value, owned, titles created and conveyed, crimes punisbed, and other forms of redress resorted to known to the judicial tribunals. And this was a neces- city. Thrifty and active communities were engaged in mining and commer- cial transactions of large moment and amounts; cargoes of goods were arriving and being sold and transported, calling into being all the processes by which civilized communities assume to regulate affairs between men and enforce justice. The story of those days furnishes a remarkable example of the force of habit in such matters which characterizes the American people, and demonstrates that they readily follow the forms of law, and abide by the consequences when their acts lack legal sanction.
The primary tribunal, constituting what I would call the first period of judicial proceedings in Montana, was known as the miners' court, and regu- lated all rights, legal, equitable, and admiralty. Prior to March 1863, when the territory of Idaho was created, comprehending what is now Montana and a part of Wyoming, within the limits of these latter there was not a volume of the statutes of Washington, out of which Idaho had been carved, nor had the legislature of Idaho met or enacted any laws. No man was authorized to administer an oath, acknowledge a deed, certify a contract, or determine any controversy. Hence the necessity of some regulations to which the people consented. The occupied mineral regions were divided into districts of con- venient size. Public meetings were called, usually upon Sundays, when the people had leisure, and some citizens were elected president of the district, miners' judge, sheriff, and coroner, their duties being undefined except by name, and the admonition that they should discharge the functions which usually devolved upon such officers. In a community where the criminal class possessed great strength, a prosecuting attorney was added to the list of officers. The entire strength of these districts was wielded by these offi- cials in repressing and punishing crime, and for the vindication of pecuniary rights or the redress of financial wrongs. These courts without hesitation granted divorces, and the judges performed marriage services without ques- tion. They summoned any party complained of into their courts, brought in juries of six citizens whenever demanded, listened to lawyers with the cus- tomary impatience, declared the law dogmatically without question, in- structed juries as to their duties, received their verdicts aud entered judgment upon them, or set them aside with the same degree of regularity and sobriety which characterizes similiar tribunals now. If the courts did not hold quite so strong the principles of law over the juries, or direct and control them as is customary in more stable communities, the fault was not confined to miners' courts. Probably there were more disagreeing juries then than now, although this is still a chronic disorder in Montana. Not infre- quently cases were tried half a dozen times before a jury agreed. Their fluctuations were remarkable, there being generally five obstinate men on one side, and at the next as many on the other side. It was a frequent occur- rence that the judge arrested proceedings, and ordered the sheriff to obtain for the court and jury and members of the bar refreshments from the nearest saloon. The costs of a suit were fixed somewhat arbitrarily by the judge, gen- erally upon a scale of prices arranged by him; but if the trial was important aud exciting, and the parties making money fast in the mines, he discrimi- nated against wealth. The lawyers got paid very well. The sheriff was an important figure in the mines. He usually selected the juries upon an open
657
ADOPTION OF CODES.
had been. The first legislature adopted codes, civil and criminal, but owing to the delay in printing them, the courts were thrown back upon manuscript bills of that session for guidance. Under this practice, in the first three years, in the first district alone, six hundred
venire, and if he had particular friends engaged in litigation, would take care of them in the selection. Changes of venue and nonsuits were practically unknowu. There was generally provided by the rules and regulations of the district an opportunity for the defeated party to appeal to a 'miners' meet- ing,' which he was permitted to do without giving bonds, and simply upon serving a notice on the party and judge of his appeal to the president of the district; the miuers, as jurors, being supreme over the judge and the parties to the contention. These miners' meetings were most often held in the open air, and if the weather was cold, or some incident of the saloons attracted them, they absented themselves until one of the parties to the suit rallied them by signifying that a question of supreme importance was about to be decided, when they returned and voted for their favorite. At these miners' meetings the appellate judge usually occupied a wagon, and the lawyers and witnesses spoke and testified from the same eminence. The witnesses might be interrogated by any one who wished to know further about the case, ex- hibit his learning, or make a display of his feigned impartiality. These tribunals were sometimes swayed by the politics of their clients or their counsel, and sometimes influenced by the liquid refreshments furnished by one side, or occasionally by a sordid motive; but whatever consideration de- termined the result, it was manifested by a viva voce vote of all present, except the litigants and their counsel, and was final. If there was any doubt about the vote, there was a division and a count, the opposing voters stand- ing on either side of a line, while the sheriff or president ascertained the exact number of each. Once definitely settled, there was no further appeal. Property worth many thousands of dollars was involved in these suits, and titles were passed which stand to this day as firmly as any established by any courts. There was a lofty scorn of techuicalities about these courts, which treated with contempt a lawyer's suggestion of the illegality of a written contract which had less than the required number of United States revenue stamps upou it.
Thoughtful men were troubled as to what was to follow, and many be- lieved that these determinations were of such consequence that they would be confirmed by an act of the legislature when it should convene, as probably would have been the case but for the restrictive laws of congress. As it was, they remained practically the determination of all controversies. These tribunals continued to exercise some jurisdiction until the arrival in the ter- ritory of the justices of the supreme court in October 1864; but in the spring of that year commissions had arrived from Lewiston for justices of the peace and probate judges, and the statutes of the first session of the territory of Idado were also received. It was found that certain jurisdiction had been conferred upon these officers, limited indeed, and comprehending but a small portion of the jurisdiction necessary to be exercised by judicial tribunals, and therefore the miners' courts were continued, presenting the spectacle of the courts authorized by law exercising a limited authority, while the larger contentions were determined by au unauthorized and volunteer tribunal. The two, however, never came in collision, but worked together harmoni- ously until the supreme court was organized. This constituted the second period of judicial history. During the last ten months of the latter period, the vigilance committee divided jurisdiction with the courts, but took cog- nizance only of the more flagrant offenses. The third period has been treated of above.
HIST. WASH .- 42
658
POLITICAL AND JUDICIAL.
and fifty cases were disposed of, six being criminal trials. Few cases were ever appealed to the supreme court, and but one of those few was reversed. At the session of the legislature of December 1867, the civil code of California was adopted, because it originated in a state whose interests were, at the time when it was framed, similar to those of Montana at this time, and which had dealt with the knotty questions of quartz-mining, water rights, placer claims, and their congeners. This greatly simplified the business of the courts. But the criminal code remained unimproved. Under it nearly half of all the complaints tried re- sulted in acquittal, owing greatly to the ambiguity of the language in which a crime was defined by the legislators. Of the four capital cases tried in Judge Hosmer's court all failed of conviction, not because the indictment was faulty or the jury were not prop- erly charged, but because they disagreed on the interpretation of the law and the charge of the judge. More than twenty persons tried for murder during the term of the first set of district judges were ac- quitted, the juries being drawn from the same people who had sustained the vigilance committee. It can- not much be wondered at that there existed dissat- isfaction with the courts, though they were not responsible for defective statutes, or that lynch-law so often hastened to remove criminals from their juris- diction. The cause lay even deeper than I have intimated, in the great infusion of a reckless element, which was strengthened by still larger numbers of careless and tolerant persons, whose experience of the freedom of the frontier had made them callous to the horrors of violated law, even when it brought them face to face with sudden death.27 A shooting scrape was a common occurrence, and had so many sides to it-besides the danger that any man might want to shoot another some time, and to establish a precedent
27 Dimsdale, Vig. Montana, says that the shooting of a man in a barber's saloon did not interrupt the business of shaving.
659
THE CURRENCY QUESTION.
might be troublesome -- that it was difficult to arouse a sense of outrage in the minds of the majority, except where the murder had been perpetrated for robbery in a treacherous and brutal manner. Even this, as we have seen, they failed to punish. Such was the condition of society in Montana in its earlier period, and such to a great degree it remained for a score of years, although on the statute-books there existed a law against drawing a weapon in anger.28 All this tends to prove the absurdity and futility of the jury system, a relic of past ages which has outlived its usefulness.
A question discussed at this period was one which deeply touched the foundations of society and its good order, and which disturbed particularly the first judicial district. Montana having been organized out of the territories of Idaho and Dakota, for the first six months every commercial transaction had been conducted in tacit, if not expressed, recognition of the fact that placer gold was the exclusive currency of
28 In the earlier period John X. Beidler was deputy U. S. marshal, as well as collector of customs for the district of Montana and Idaho, and colonel in the territorial militia. He was from Chambersburg, where he was known as an 'excellent maker of brooms, cocktails, and juleps, and a fellow of infinite jest.' In Montana he wore a white slouched hat with an immense brim, loose frock-coat with ponderous pockets, pants and vest of the same cloth, loosely cut, high-topped boots, the inevitable woolen shirt, a brace of faithfnl pis- tols iu his belt, and a huge ' Arkansas toothpick,' or bowie-knife, in a leather sheath. This was his travelling costume. At other times he could he quite fop- pish; and at all times he was a general favorite, except with the law-breakers. Like most favorites, he had a pet name, which was simply X. The local news- papers noticed his movements as X, and so frequently in connection with the arrest of some criminal that the journals of other localities took it for granted that X was a cabalistic sign for vigilance committee. Bnt although he was undoubtedly on that committee's service at times, he was an officer of the regular courts, whose activity, endurance, sagacity, and readiness in drawing and firing made him the terror of evil-doers, and which procured him the thanks of the legislature in 1883. McClure says: 'When he goes for a des- perado he generally takes him withont papers, as he terms it; and when he commands, no one has yet been reckless enough to question his authority or dispute his power. He has hung some 30 of the most lawless men the conti- nent could produce, and has arrested hundreds, often in distant regions and without assistance, and has never been repulsed. Many have tried to get the drop on him, but in vain.' Three Thousand Miles, 376-8.
The first U. S. marshal commissioned was Cornelius F. Buck, June 22, 1864, who declined. The second, commissioned Feb. 2, 1865, was George M. Pinney. The third, commissioned March 18, 1867, was Neil Howie. The fourth, commissioned May 15, 1869, was William F. Wheeler, who was recommissioned in 1873. J. J. Hall was deputy marshal after Beidler.
660
POLITICAL AND JUDICIAL.
the country, and that United States treasury notes were worth fifty cents on the dollar of the former currency. The custom of conducting business on this basis was so well established that it had never been thought necessary to specify in writing in what cur- rency given sums of money should be paid. Two questions which presented themselves were therefore of the greatest significance. First, was Montana with- out statutory enactments, or were all those laws of a general nature passed by the legislature of Wash- ington, not inapplicable in their form and nature to the western counties of Montana, in force in that por- tion of Montana west of the Rocky mountains, and such general laws passed by the legislature of Dakota in force east of the Rocky mountains; and were the laws of Idaho passed at its first legislative session, in the winter of 1863-4, of like nature and force after their passage throughout the territory, or did the or- ganization of a new territory out of Idaho itself oper- ate to repeal all the statute law then in force? Second, what should be the measure of damages upon con- tracts made in the territory to pay a given number of dollars, not expressed to be in gold-dust, but un- questionably so intended by the contracting parties ?
Judge Hosmer, when he opened his court, made first his impressive charge to the grand jury, as before mentioned, and then, deferring all other business, in- vited the opinions and arguments of the bar on these vexed questions. As we know already, a majority of the population of the territories of Idaho and Mon- tana at this period were in sympathy with disunion, and a political bias was likely to be given even to questions of abstract law. A majority of the bar therefore argued that the organic act of the territory wrested all its geographical area from the force and operation of the statutes of the other territories which had once had jurisdiction. In the absence of au- thorities or precedents, a single letter of secretary Buchanan to General Kearney in California, in which
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