When he took his seat, I stated to him briefly some of the laws of poetic composition, and then showed him how his lines failed to comply with these laws; I added, however, by way of salving his feelings, that genius knows no law, and was not to be judged by ordinary mortals. He seemed a little nettled, and replied that he had repeated his poem to a great many people, who were scholars and good judges of poetry, and that they had pronounced it a fine performance. This ended the incident. Had my judgment been given before he signed one-half a scholar, it would probably have been one-tenth, or a still smaller proportion of a scholar. His boys all attended school, however, and he personally urged me to teach another quarter. On the last day of school, many of the parents came in andpaid me for my services, three hundred dollars, and hired me for six-months' more teaching at the same price. I taught in all about three years in that neighborhood.
My teaching career was in every way pleasant, and I have every reason to feel proud of the positions of honor and trust attained by at least three of my pupils, and by the general financial success and high moral standing of all. Judge Bellinger, late of the United States District Court of Oregon, was a pupil of mine for about a year. He was the son of poor parents, and by sheer force of intellect and study pushed his way to the front, and to the honorable position which he attained, and which he held at the time of his death.
John B. Waldo, recently demised, was also a pupil of mine for about two years. He was a sober, clear-headed, studious and somewhat taciturn boy, quick to perceive and prompt to act. He became judge of the Supreme Court of the State of Oregon for one term. His decisions are models of clearness, and directness. In addition to his store of legal learning, he probably knew more of the flora and fauna, of the mountains of Oregon than any other man. He was not a man of robust constitution, and his health was precarious. His death, in the prime of manhood, was deeply mourned by all who knew him.
Our own honored Oregon Dunbar, was also a pupil of mine. He was a frank, open-hearted boy, of determined will and intense application. He had what the great law-writer Bishop calls a legal mind—a natural perception of the relation of legal truths—and superior powers of classification and generalization. He is eminently a fit man for the position he holds on the Supreme Bench of Washington. Long may he continueas a distinguished member of that Bench—and late may be his return to Heaven!
With such a triumvirate of integrity, high legal attainments, and judicial honor, a teacher may well feel proud. While it is the duty of the teacher to aid and assist his pupils and to impart instruction in the various branches taught, yet this is not his whole, or principal mission. His higher and nobler mission is to arouse into action all the latent forces and qualities of his pupil's nature and to inspire him with a noble ambition to conquer in the arduous conflicts of life. If he succeeds in the accomplishment of this, he has fully performed his mission.
After I ceased to teach public school in Marion County, I became the private tutor of the children of R., who was at the time Superintendent of Indian Affairs for Oregon and Washington. I also became to some extent his literary secretary. R., though not a learned man, had business capacity of a high order. In religious matters he was an agnostic, and he read more of Shakespeare than he did of the Bible. He was a man of inflexible integrity, and a capable and faithful administrative officer. He was much interested in Indian civilization, and talked much of it. He was of the opinion that the system of most of the churches was wrong in principle, and not fruitful in good results. He maintained that the first move in this work of civilization was to improve the physical condition of the Indian, and that the moral improvement would come as a slow, but necessary consequence. Being full of the subject, he concluded to call a council of the chiefs and the principal head men of the various tribes under his jurisdiction, and to impart to them his ideas in this behalf. The time was fixed, the place namedwas the general council hall in the city of Salem, and notices were sent out requesting their attendance. R., while he had a good residence in town, usually spent most of his time upon his fine farm in the country. At the appointed time he invited me to go with him to the council and take notes of the proceedings. When we arrived at the council chamber we found from fifty to seventy-five Indians seated on the floor with their backs to the wall. After a general salutation, R. took a seat on the rostrum and requested an Indian whom he knew to act as interpreter. As the interpreter could not speak in the language of the various tribes represented, the jargon was adopted as the mode of communication—all the Indians understanding that. R. briefly stated to them the object of the council, and then asked the question, "Did they desire fine houses, fine horses and cattle, and plenty to eat and wear": R. was a very emphatic man and spoke in short and positive sentences. The Indian is a stoic, and if any emotion ever agitates him it is not betrayed in his countenance. I was much interested in the interpreter. He seemed to be full of his mission, and he imitated the tone of voice and gestures of R. Having asked the question, R. himself emphatically answered that all these things that he had mentioned, and which they desired, were obtained by "work." He reminded them that many of them had visited his fine house in the city, and had seen his fine furniture and other things, and he asked: "How did I get these things?" He again answered, "By work." Having concluded his short, emphatic and impulsive speech, silence prevailed for a short time. Finally a chief arose and with great deliberation adjusted his blanket about him; this being accomplished, he spoke as follows: "We are verythankful for the good talk of our father; we will consider it; we cannot answer now." He suggested that one week from that time they would meet the good father at that place and tell him their conclusions.
We afterwards learned that they appointed what we would call a committee. That committee, in their investigations, when they found a man engaged in some menial employment and roughly clad, followed him to his house, found that it was a very humble abode, and was not filled with fine things; then they followed up the merchant, who had many fine things and wore good clothes, to his home, and they found a fine house filled with fine furniture; they also applied the same test to the saloon keeper. Neither the merchant nor the saloon keeper, according to their views, worked at all. On our way home from the council chamber I ventured to suggest to R. that most of the wealth of this world was in the hands of men who organized, or directed labor or work, and but a small pittance in the possession of those who actually performed the labor. I gave as my judgment that the Indian had no conception of this work of directing and organizing labor, and that he would not consider it as work at all. At the appointed time for the answer, the spokesman for the Indians narrated what I have briefly stated above, and announced very plainly and flatly as their conclusion, that what the good father had said was not true. R. was much disappointed at his failure to start a general movement upward in the line of Indian civilization. I am of the opinion that his feelings went farther and impinged on the domain of actual disgust. The subject of Indian civilization fell, henceforward, into innocuous desuetude.
Looking at the surface manifestations only, andnot having the ability to look deeper into that complex machine called society, we cannot be astonished at the conclusion reached by the Indian committee.
While I had the honor to represent Washington Territory in Congress, and by request of several members of the Committee on Indian Affairs with whom I was acquainted, and while the bill reported by them was under consideration and general debate was in order, I made a speech on Indian civilization. I shall not reproduce that speech here, nor give an extended synopsis of it. I commenced with the declaration that the philosophy of an Indian's life was to put forth an act and to reap immediately, the result of that act; that he threw a baited hook into the water, and expected to obtain fish; that he sent an arrow or a bullet on its fatal mission, and he expected game; that he did not plant nor sow, because the time between planting or sowing, and reaping—the gathering and enjoyment of the result of his work, was too distant; that it requires the highest degree of civilization to do an act, or to make an investment, the profits of which are not to be realized until the lapse of considerable time: that this primary law inherent in an Indian's philosophy of life is fundamental, and no system for his civilization can disregard it. My next cardinal proposition was that Indian tribes, if civilized at all, must be civilized along the lines of their past history, habits and modes of life; that some tribes of Indians subsist, and have subsisted for ages, on the products of ocean, lake and river: that these are sometimes called fish Indians: that to make appropriations to teach these Indians agriculture, or the successful operation of the farm, is a wasteful expenditure of public money; they are naturally sailors, and have carried the art of canoemaking and sailing to a high degree of perfection; their larger canoes are models of symmetry, safety and strength; that in them they fearlessly go out on the ocean a distance of 40 or 50 miles to obtain halibut, codfish and fur seals. Let the Government, I said, if it desires to civilize these Indians, build them a sailing-vessel of a hundred tons or more capacity, and they will almost intuitively learn to sail and manage it; it would act as a consort for their larger canoes and as a storehouse for the profits of the sea taken or captured by them; that with such a boat, the Neah Bay Indians, for instance, would soon become self-supporting. My views had a respectful hearing, and influenced to some extent the policy of the Government in that regard. A large number of copies of this speech were sent by me to the people of the Territory, and to all our Territorial papers; but none of these, so far as I know, noticed it further than to say that I had made such a speech. Copious extracts from it, containing its points, were published in many of the Eastern papers, while two published it in full. There was some discussion as to the soundness of my views, but generally they were approved. So far as the Neah Bay Indians were concerned, the Government did build a sailing-vessel of smaller dimensions, however, and many of the Neah Bay Indians have like vessels of their own, and have become, to a great extent, self-supporting and prosperous. The same policy in a modified form, but in fact the development of the same idea, was adopted by Rev. Wilbur, agent of the Yakima Indians; and these Indians, to a great extent, have given up their nomadic mode of life; they have small farms, and neat and comfortable houses; they have gardens, chickens and a large accumulation of domestic animals aboutthem. They are prosperous, and slowly moving along the line to a higher civilization.
Civilization is a slow process. It takes all the forces, moral, intellectual, educational and religious, now in successful operation, to hold the world from falling back and to move it slowly, but surely onward and upward, to a higher plane of civilization. While it is a tedious and arduous, if not an impossible task, to make a white man, in his habits and modes of life, out of an Indian, yet the descent of the white man to the modes, habits of life and appearance of an Indian, is a sadly speedy process.
In a trip I made to Colville, Washington, in 1856 there came into our camp one day a person whom I supposed at first to be an Indian. He was dressed in buckskin, ornamented with fringes and beads, with a blanket over his shoulders; his hair was long and unkept, with no hat on his head and his face bronzed like that of an Indian; and he was besmeared across the forehead with red ochre, or some other kind of paint. I should judge that he was 36 years of age. At first he refused to talk, except in jargon; but after a while, when we were alone, he became more communicative, and gave me something of his history. He spoke good English. He claimed to be a graduate of one of the Eastern Colleges, and I have no doubt his claim was true. He had gotten into some difficulty in the States and had been living as an Indian for some eight years, or more. To all appearances he was an Indian; he looked like an Indian and acted like one. I was in his company for some three days, and when alone he talked to me in good English; he said he loved this wild and nomadic life, with its perfect freedom from the shams and hypocrisy of so-calledcivilization. He said that the hills, the mountains with their snow-crowned culminations, the dark woods, the silver thread of the stream viewed from an elevated point and fringed with green as it went leaping and rollicking to its ocean home, were to him an unwritten poem, the rythm of which he enjoyed, and the lines of which he was trying to interpret. He quoted to me from Byron the passage concerning the pleasures of the pathless woods, and from Bryant:
"Where rolls the Oregon,And hears no sound, save his own dashings."
On the evening of the third day he rode away in the continuous woods to enjoy, I suppose, their poetry and solitude. This case illustrates the facility of the descent, by even an educated white man, to the level of an Indian; retaining, however, in his soul, still glowing, some of the lights of civilization.
While I was stopping at R.'s I wrote a series of eight articles for The Oregonian, showing the necessity of manufacturing crevices in the country to hold the gold taken out of the gold mines, and also that which was being brought in great abundance by its citizens from California. These articles were used by The Oregonian, by my implied assent, as editorials. The Oregonian was the leading opposition paper in the Territory, with Silver-Gray Whig tendencies. The leading Democratic paper was The Statesman, published at Salem, and owned and edited by Asa Bush, who was a sharp, pungent, and effective editorial writer. "Tom Drier," as the editor of The Oregonian was familiarly called, was an editorial writer of considerable ability. Drier usually added some introductory matter to my articles, and also some matter of amplification,or illustration. It was to me a matter of interest, and amusement, to note that the editor of The Statesman was always able to point out to its readers the matter written by The Oregonian's "hired man," and what was added by the editor. Bush did not know who wrote these articles, nor did anybody else know except myself, R. and the editor of The Oregonian. Bush spoke highly of these articles and enforced, in editorials of his own, the logic and necessity of the policy recommended by them. These articles had much to do with the establishment of the first woolen mills in the State of Oregon. These mills were built at Salem.
As the State of Washington is woefully lacking, so far as manufacturing is concerned, I am tempted to recall, with a Seattle application, one of the many facts embodied in the logic of those articles. Seattle has a population of 250,000, we will say. It costs at least $7.00 each for the feet clothing of such people for one year. This would give the sum of $1,750,000 for boots and shoes alone. When we come to add to this the value of the leather for harness-making, for belting and the other purposes for which leather is used, we have over $2,000,000 taken annually from the people of this city for leather, and its fabrics. The absurdity of this thing appears when we consider that we have a great abundance of hides, which are sold for a mere song, and are received back in manufactured articles. Our forests are rich in tanning; in fact, the raw materials of all kinds required are abundant. Any person by giving serious consideration to the subject will soon be convinced of its great importance, and the imperious necessity of action. As well might we ship the logs cut in our forests to foreign countries, or the Eastern States, to be manufactured into furniture, orfinished lumber, as to ship other raw materials away and receive their finished products back, paying for them the increased price, resulting from the labor performed upon them, and for the freight both ways. No country can stand such a drainage, and prosper.
It was in the summer of 1855, if I remember correctly, that I was nominated by an opposition convention to run as a candidate for the Lower House of the Territorial Legislature in Oregon. I did not attend the convention at which I was nominated, nor was I a delegate thereto. At first I hesitated about the acceptance of the nomination; but urged by my friends, I finally consented to run. The Territory as well as the County, was largely Democratic. The platform announced three cardinal principles: first, the most stringent regulation of the liquor traffic; second, America for Americans; and thirdly, the curtailment of public expenses and the cutting-down of salaries. The first and last of these principles I heartily endorsed; the second, in the know-nothing sense, and application, I was not in favor of; furthermore, I was opposed to secret political societies. I favored an open field and a fair fight. Having concluded to run, I went into the fight vigorously, and made speeches in nearly all of the precincts in the County. My canvass alarmed the Democrats, and they sent some of their best speakers after me. I met them in joint debate at times, and at other times I, alone, spoke. As the time approached for election, the excitement increased, and public interest in the campaign was very much aroused. I won, during the campaign, quite a reputation for a raconteur. A point illustrated and enforced by an anecdote or story becomes an integral part of a man's mental and moral constitution.
About the big bills, I told the story of the farmer who had a large flock of chickens and an equally numerous flock of ducks. He fed them with grain. He noticed that the ducks, on account of their larger and broader bills, were able to get more than their share of the food, and he came to the conclusion that in order to equalize matters, he must cut down their bills. This was just what I told the people that we proposed to do. One of the speakers sent out by the Democracy found fault with every proposition announced by me, and I answered him by the narration of the story of a friend who had not seen his quondam neighbor for many months. He was so pleased at his return that he provided a feast for him. Mine host had roast beef, roast mutton, roast pork and chickens. He says to John Doe: "Shant I help your plate with some of this roast beef, which is very juicy and fine?" "No," said John Doe. "I have come to the conclusion that a man who eats beef becomes sluggish and stupid." "Then shall I help you to some of the mutton?" "No," says Doe, "a man who eats mutton becomes timid and cowardly." "Well," says mine host, "you will certainly take some roast pork?" "No," says Doe, "a man who eats pork becomes coarse and swinish." "Then you will take some of the roast chicken?" "No," says Doe, "of all the creatures used by man for food, the chicken is the most filthy in his diet of them all." Mine host, being somewhat disgusted, called to his son Sam to go out to the barn and get some eggs—"possibly this old fool would like to suck an egg or two."
Just before election, tickets were scattered all over the County with my name printed in every shape and form, and quite a number of these tickets had printed on them "for representative, O. Jaques." The canvassersrefused to count for me the last named ticket, and this defeated me. There was no other man running whose name in orthography, or sound, resembled mine. Had these tickets been counted for me, they would have elected me by a small majority. I was urged to contest the election, but I refused to do it. My own opinion, as a lawyer, was that probably the judgment of the canvassing board was right; at least there was enough plausibility in its support to furnish an excuse to sustain the position of the canvassing board.
Not being entirely satisfied with the climate and country, and being desirous of visiting California and Mexico, before my return to Michigan, I quite suddenly, in the fall of 1857, concluded to make a start. What means I had were loaned out on demand notes. To my regret I found my debtors unable to respond promptly. I concluded, however, to go to Jackson County and there to await collections. I made the trip on horseback and most of the time alone. Approaching Canonville late in the afternoon one day I saw a lone horseman ahead of me, whose appearance indicated that he was a traveler. I increased my speed and was soon along side of him,—I said "How do you do, sir?" He turned a frowning countenance towards me and snarlingly answered, "None of your business, sir." I was not long in coming to the conclusion that possibly company was not desired by him and especially my company; so I touched the spurs to my horse and left him to his melancholy meditations. I might have been wrong in my conclusion, and I must confess that I felt a good deal as I suppose the fellow felt who was kicked out of the fourth-story window: after gathering himself up and finding that his physical economy, thoughsomewhat bruised, was intact, he came, after deliberate reflection, to the conclusion that possibly he was not wanted up there.
I stopped at a town in Jackson County, bearing the euphonious name of Gasberg. I rested there for a couple of weeks. The people of that settlement were contemplating the erection of a building for a high school or seminary; and they offered me $150 a month to teach a six-months' school. Mr. Culver, quite a wealthy gentleman, offered me an additional $50 a month to keep his books posted, a work I could attend to at night without interfering with the school. I concluded as I probably would have to wait until spring for my collections, to accept the offer. The district already had quite a good school-house. My scholars were mostly young men and women, and I taught everything from reading and spelling, up to and including algebra, and surveying. I never had to do with a finer lot of pupils, and my position was in every way agreeable to me. I ought possibly to state that my wife, then Miss Lucinda Davenport, the only daughter of Dr. Davenport, attended that school. This added to my other employments the delightsome one of courting, and we were married on the first of January, 1858. Although we have lived together for fifty years, we never have been reconciled yet, because there never has been any occasion for a reconciliation.
At the close of the first term I contracted to teach for another term of six months, as my roving disposition had dissolved into thin air. When the second term was closed, I was appointed a Justice of the Peace of that precinct, and I returned to the practice of law—occasionally writing for the newspapers.
When the Civil War commenced, the editor of theprincipal paper in the southern part of the state—The Sentinel—was a Secession sympathizer, and he and the proprietor and publisher had a fight in which the editor was seriously wounded. I was solicited by the publisher and a committee of leading Union men to assume charge of the editorial department of the paper. I did so, and wrote all the editorials in the paper for over three years. The paper was a weekly, but at times, when the news was stirring, it was published semi-weekly. The paper under my control rapidly increased in circulation. The editorial work that I did while on the paper secured me an offer, when I announced my intention to resume the practice of law, from the Sacramento Union, then the leading paper on the Pacific Coast, to become one of its editorial staff at a good salary. I considered the proposition for quite a time; then concluded to decline it. Had I accepted this offer, it would have changed the whole course and direction of my life, and I probably would have continued in that line of work to this day. It was while I was editor of The Sentinel that a rumor was telegraphed to me that President Lincoln had been assassinated. It came first merely as a rumor and I communicated it only to a few persons, anxiously waiting to hear whether it was true or not. Many of the good and patriotic citizens of all parties feared a riot. I issued an extra, on the confirmation of the news, briefly stating the facts of the assassination: and every store, business house and saloon was immediately closed, and their doors draped in mourning. A meeting was shortly called, and I was invited to deliver an oration on the character and service of the lamented President. I was given three days to prepare that address. The Methodist minister was also invited to deliver an address onthat occasion. The crowd was immense; no church in town being large enough to hold it. My oration was published in The Sentinel and other papers in the State and in some of the California papers. I have a copy of that oration; but, as I give in full the oration delivered by me in the City of Seattle on the death of President Garfield a more recent occurrence, I have concluded to give only the later address.
I ran for the Lower House of the Legislature in Jackson County and I was fairly elected, but was counted out; not unjustly, I do not mean to say, for on the face of the returns I was defeated by six votes. The County was largely Democratic, and I ran as a Republican. I said that I was fairly elected, because there was a contest in one of the precincts for the office of Justice of the Peace; I was the contestant's attorney, and he succeeded in his contest because he conclusively showed that thirteen illegal votes were cast against him. To have thrown them out on a contest would have elected me by seven majority. I refused to contest the election, and the matter dropped. Subsequently I ran in that County for the office of County Judge. After I took the field, the Democrats became alarmed, and they withdrew the candidate nominated by them, in convention, and placed in his stead a Mr. Duncan, one of the strongest and most popular Democrats in the County. He beat me by sixteen votes. The other Democratic candidates were elected by majorities ranging from three hundred to four hundred.
At the time Mr. Harding was elected United States Senator for Oregon I was without consultation, or being present, put in nomination for the position, and I lacked only two votes of an election.
Thus, while I was a hard man to beat, I was always beaten, fairly, or unfairly.
I was appointed Associate Justice of the Supreme Court of Washington Territory in 1869. Less than a year afterwards, by unanimous recommendation of the members of the Territorial Legislature, I was appointed Chief Justice of that Court, and at the expiration of that term was re-appointed Chief Justice. During this last term I was nominated by the Republican party and elected Delegate to Congress. At the expiration of that term I was renominated and re-elected.
To make an account of my official career complete, I ought to state that I was a member of the Territorial Council (the equivalent of a State Senate) of Washington for one term; also Mayor of the City of Seattle for one term; and Regent of the Territorial University of Washington for ten years, and Treasurer of the Board of Regents all of that time.
As a member of the Territorial "Council" I was appointed chairman of the judiciary committee, and also chairman of the committee on education. The work on these committees was almost continuous. It absorbed all of my time for nearly every evening of the session.
The iniquitous gross earning tax law, as applied to railroads, was repealed at this session. The vote on its repeal in the "Council" was close—and if I were not a modest man—I would say, that I contributed largely to its repeal. I made the only elaborate argument in the "Council" against its unequal, unjust, inequitable and partial provisions, discriminating in favor of centralized wealth and organized power. It was a close and hard fight in the "Council" but repeal won.
The school system theretofore existing in the Territory, was radically remodeled at this session of the Legislature. The bill as presented to the committee was the work of a selected body of teachers. In a legislative sense it was crude and in some of its provisions, intensely radical. I, in fact, re-wrote the whole bill making its retained provisions full and accurate—omitting surplus statements, and embodying many new provisions. The bill thus remodeled passed the "Council" and the "House," and its essential provisions remain the law of the State today.
A few general observations may be allowable: Rare are the men who possess in a high degree, constructive legislative ability. Every act of legislation ought by clear and accurate provisions cover every element of the subject matter stated in the title. As the act approaches this it approaches perfection.
Any act of legislation laying the foundation of a system—such as the school system and providing for its administration is a difficult task. The human judgment is imperfect—and prescience is limited—hence any approach to perfection in the system itself, or in its administrative provisions, is a matter of evolution of slow growth—and of the survival of the fittest. As time advances and light and knowledge increase, the dead and useless branches are pruned off and the fit and vigorous remain to blossom and bear fruit.
The effective and beneficial work of Delegate to Congress is in the various departments of the Government, and in the various committees of both houses of Congress. In a new country, rapidly filling up with people, post-routes and post-offices must be provided. On the established lines there is a constant and pushing demand for an increase of service. When I was elected,the daily mail stopped at Tacoma, and Seattle had only a weekly mail. One of my first efforts was to increase this Seattle service to a daily mail. I had some difficulty in accomplishing this object, because the postal authorities claimed that the revenues of the Seattle office were not large enough to warrant such increased service. I got it increased, however, to a daily service. I had not so much difficulty in getting a daily service from Seattle to Victoria and way-ports. Everybody on Puget Sound knows that Port Discovery is about six miles west of Port Townsend. Port Discovery was a milling town visited largely by foreign vessels and many American ships, and a large volume of business was done there. There was a stage running daily, from Port Townsend to Port Discovery and back, and it had only a weekly service. I asked for a daily service, but it at first was refused, and I notified the people interested of the result. A Mr. Young, the manager of the Port Discovery Mills, stated to me in a letter that, inasmuch as the Government was very poor and the people of Port Discovery were rich, they, out of the abundance of their wealth, would pay the additional cost, if I would secure the assent of the Government to allow the contractor for the weekly service, to carry the mail daily. I showed this letter to the Postmaster-General, and he, after reading it, said: "Judge, I think the Government can stand the increased expense, and those people shall have a daily mail;" and he ordered it.
A Delegate, in order to wisely and intelligently, as well as promptly, discharge his duties, ought to be a lawyer, and well acquainted especially with the land-laws of the United States and other laws pertaining to Territories. He is constantly called upon to push land-claims to patent, and in this respect he becomes theattorney, without fee, of the people of the Territory. There is a large volume of such business, and he must examine the papers in order to understand the status of the case and to advance it for patent. Representatives from the older States have but very little of such business to demand their attention, and to consume their time.
When I was elected, I do not think there was a single lighthouse, or fog signal, or foghorn, on the waters of Puget Sound, and I secured the establishment of quite a number of them.
I forced the loosening of the grasp of the Northern Pacific Railroad Company on large quantities of the public land, and I did much to secure the passage of the law returning to purchasers one-half of the double-minimum price ($2.50 per acre) paid by them, which was exacted on the ground that the land so purchased was double in value by virtue of its proximity to a railroad line. This is a brief and imperfect synopsis of some of the results of my efforts as Delegate.
A Delegate has not even the unit of political power—a vote on any measure; he can therefore form no combination to further friendly legislation in the interest of his Territory. The Delegates from the different Territories, however, were regarded as quite an influential body of men, and were usually able, by scattering through the House, by use of personal persuasion, by attendance before committees and receiving favorable reports, to get a part, at least, of what they desired for their Territories.
While a member of the House of Representatives I was much interested in the study of its members and its mode of operation. The popular opinion is that it is a calm and deliberative body. This is true as ageneral rule; but there are times, and they are not infrequent, when the House is anything else than a sedate and deliberative body of men.
General Benjamin F. Butler had a seat back of me, and frequently, when he desired to speak, asked me to change seats with him for a time—my seat being nearer to the Speaker of the House and a fine place wherein to stand and from which to be distinctly heard. On one occasion it was announced that Butler would deliver a speech on the financial question. I offered him my seat for the purpose. The House was full. Butler was cross-eyed and near-sighted. He commenced the delivery of his speech by reading from a manuscript. Every eye was turned towards him. He always commanded the attention of the House when he spoke. In the delivery of his speech he had to keep his manuscript close to his face and to move it to the right and to the left on account of his being cross-eyed. He did not often speak from manuscript. This was his first attempt to do so at that Congress. The spectacle was so novel that many members began to laugh and to interrupt him by asking him questions. He threw the manuscript on the desk, stepped out into a space nearly in front of the Speaker, and gave the points of his speech without the aid of his manuscript. He was frequently interrupted, especially by the Democrats; and he suggested to me the idea of a lion at bay, shaking off and striking at his opponents with caustic wit and scathing repartee. On another occasion, a gentleman from Maryland, a large and portly man, who was Chairman, I think, of the Committee of Foreign Affairs, arose to introduce and briefly to explain the provisions of a bill reported from his Committee. This gentleman was quite deaf, and like all deaf persons spokein a very low tone of voice; in fact, he could not be heard six feet away from him; but he had, no doubt adopted Demosthenes' idea that gestures were the levers of eloquence; and his arms would go up and down and to the right and to the left, and his eyes sometimes rolled upward and then downward to the floor. Someone cried out: "Is this a pantomime performance, or a public speech?" Then others gathered around him, and all kinds of remarks were made concerning the performance. The Speaker finally compelled the Members to take their seats; whereupon the Member ceased his motions, and probably his speech, and resumed his seat. This gentleman came to Congress with a great reputation as an orator. Probably he had been such in former years, but his deafness had destroyed his powers in that regard.
I was in the House at the time that James G. Blaine, then a prominent candidate for the Republican nomination for President, annihilated J. Proctor Knott, who was Chairman of the Committee on the Judiciary. A report had been made by that Committee on a matter referred to it; it seriously reflected on Blaine's honor and integrity as a man and as a member of the House of Representatives. It seems to have been the intent of the majority of the Committee who joined in the report, and who were all Democrats, not to bring up the report for hearing, but to let it stand as damaging evidence against Mr. Blaine, in order to prevent his nomination, or to defeat his election, if nominated. Blaine and his friends determined to expose its animus and falsity on the floor of the House, so that the refutation would go with the charge. To make this vindication, however, it was necessary for Blaine to obtain the floor; this would be opposed and was opposed. Inthe parliamentary conflict for the floor which ensued, Blaine's superior knowledge and tact succeeded, and he was recognized by the Speaker. I never saw a more forlorn look of disappointment, and of sullen resignation, than that manifested in the countenances of many of his opponents, when the Speaker announced that the gentleman from Maine was entitled to the floor. Blaine was pale, and all aflame with indignation. His voice, although at first a little tremulous, soon became clear and ringing. His sentences were compact and parliamentary. He accused that great Committee of darkening its former reputation by making a report for political purposes. He further accused them of the deliberate suppression of evidence that completely exonerated him, he drew from his pocket a certified copy of such suppressed evidence, read it to the House, and waved it in triumph amid the uproarious applause of his Republican colleagues, and of many Democrats. He spoke in this vein for about thirty minutes. When he closed, his friends were joyous, and his enemies dismayed. Among the first, personally to congratulate him, was Ben Hill of Georgia, a distinguished member of the then extinct Confederate Congress.
A ludicrous scene occurred in the House, when the bill making a large appropriation for the re-building of the various edifices formerly constituting William and Mary's College, in the State of Virginia, came up for consideration. These buildings were alternately in the possession of the Union and Confederate forces during the war, and were destroyed by fire while the Union forces were in possession of the ground upon which they stood. Most of the members of the Democratic party favored this bill. A few opposed it. The Republican members generally opposed the appropriation,but there were some who favored it. It was understood that when the bill came up for final passage, but one speech would be made in its favor, and that was to be made by Mr. Loring, of Massachusetts, a Republican. Mr. Loring had a national reputation for finished and eloquent orations. When the time arrived the House and galleries were full. Mr. Loring arose and partly read from a manuscript his great oration. He stated in a clear and comprehensive manner what the laws of war formerly were, and how they had been modified by the generous principles of Christianity and of civilization. He stated that now as recognized by every Christian and civilized nation, churches, hospitals, institutions of learning and other eleemosynary institutions were exempt from the ravages of war. He spoke in eloquent terms of the sacred walls within which poets, philosophers, statesmen, lawyers, great divines and warriors, if not born, received their inspiration and were qualified for their grand missions. He was listened to, throughout, with breathless attention. When he closed, at the expiration of a little over an hour, he was greatly applauded. I thought it the finest oration I had ever had the pleasure of hearing. The Republicans were anxious to break the magnetic spell of his oratory, and to get a little time for the sober second thought, of the members to assert itself. Conger, of Michigan, had the ability to crowd more sarcasm, wit and scathing repartee into the same length of time than any other member of the House, and he was chosen by the Republicans to break the magnetic spell of Loring's great speech. He arose, and after complimenting the honorable gentleman from Massachusetts on his great effort, stated that some of the buildings constituting the College, while in thepossession of the Rebel forces, were used as stables for their horses, that their floors were covered with excrement of such animals, that other buildings were used as hospitals for the sick and wounded, and that their walls were besmeared with blood and filth; and he sneeringly remarked, that these were the sacred walls that so inspired the eloquence of the honorable gentleman from Massachusetts. After indulging in other bitter declarations of the same character, he ceased—having spoken for about thirty minutes. The Virginia members were very much excited. One of their number, by the name of Good, arose to reply to Conger. Good possessed the ability to open his mouth and, without seeming effort or preparation, to pour forth a volume of sweetened wind or a volume of scathing philippics. He denounced the honorable gentleman from Michigan for preaching a gospel of hate and vengeance, which had heretofore well-nigh wrecked this glorious Government, which if persisted in, would keep open the wounds and sores that under a more liberal and generous spirit were fast healing. He indulged in more of this kind of denunciation, and finally, in a supreme effort of indignation, consigned the honorable gentleman from Michigan to ruined towers and castles and crumbling walls, where he could be fanned by the damp and dismal wings of bats, and listen to the hooting of owls, forever. Conger, who had not resumed his seat, but stood calmly gazing at the honorable gentleman from Virginia, exclaimed, with a piercing and ringing voice, "I hear them—even now." This remark was received with roars of laughter, joined in by Democrats as well as Republicans. Mr. Good tried to proceed; but when he did so, someone would exclaim,"The owls are hooting again," and poor Good resumed his seat.
I have noticed that some pungent remark, or sarcastic repartee is often more effective than a set speech. All remember Butler's reply to "Sunset" Cox, when the former was frequently interrupting him. With a motion of his hand over his bald head, he exclaimed to Cox: "Shoo, Fly! don't bother me." It was taken from one of the popular songs of the day. It hurt Cox's prestige and lessened to some extent his power. Cox was physically a small man, and the application carried with it an expression of contempt. Holman, of Indiana, on account of his objections to all bills making appropriations of money, got the name of being "the watchdog of the Treasury." Towards the end of his term an amendment was offered in which a near relative was much interested. The familiar "I object" was not heard, and the amendment went through with his support; whereupon a member sitting near exclaimed:
"'Tis sweet to hear the watchdog's honest barkBay deep-mouth'd welcome as we draw near home."
In a more recent case, a gentleman from Indiana, in his indignation against a gentleman from Illinois, called the Illinois member "an ass." This was unparliamentary language, and the Indiana gentleman had to apologize and to withdraw the remark. The gentleman from Illinois arose and said he did not know what was the matter with him that he should always so excite the ire of the gentleman from Indiana; the gentleman from Indiana replied: "If you will inquire of some veterinary surgeon, he can probably tell whatis the matter with you." This was perfectly parliamentary and a complete exterminator.
Many people suppose Congress to be an assemblage of orators. This is a great mistake. In point of ability its members are eminently respectable, and many of them distinguished in their particular line of business, profession or thought. Most of the set speeches are delivered from manuscript. The matter is well considered and in most cases clearly stated; but the delivery is often dull, listless and without animation. This is particularly true of speeches founded on a dreary array of facts and statistics. While the logic of such facts or figures may be very convincing, yet in the hands of most men their presentation is very uninteresting. Few men can present statistics in an interesting and captivating manner. Garfield must be considered as pre-eminent among that class of men. I have heard him make a speech of over an hour in length on financial questions in which he not only presented a formidable array of statistics, but held his auditors spell-bound to its conclusion. It may be said of the orators of the House that though they are great advocates, they are not constructive statesmen; they are orators and nothing more; they are good to show the reason for a provision and skillful in their defense of it from attack. Conkling, one of the most brilliant speakers in the Senate, although a member of that distinguished body for many years, is not the author of any beneficial act of legislation. The career of such a man will be brilliant, but it will be brief. It is the constructive statesman who succeeds in writing his name permanently in the legislative history of his country. Most of the legislation benefiting the people, or putting their rights on deeper or broader foundations, has originatedwith the silent workers in either House of Congress.
To show the listless and inanimate manner in which some speeches, truly great in their logic and in their facts, are delivered in the House, let me state an incident. A gentleman from New York, who came to Congress with an established reputation as a public man, arose to address the House on the necessity of a more liberal and reciprocal trade-treaty and tariff, with the Dominion of Canada. In the expectation that he would address the House on the evening that was set for general debate, the House was full when he arose, and every eye was turned towards him. He read his address from manuscript. His voice was indistinct and it lacked in volume. After reading two or three pages from the manuscript before him, he seemed to be unable readily to decipher it—it having been reduced to writing by his clerk. He halted, stumbled and misread portions of it, and then re-read it to correct his mistakes. The members commenced quietly to leave their seats and to retire to the cloak-rooms. As he was a member of the Committee on Commerce, and had shown me many favors, I took a vacant seat near him. When the chairman announced that his time had expired, I arose and moved the chairman for the extension of his time for twenty minutes. The chairman said he heard no objection, and he extended the time of the gentleman from New York for twenty minutes more. While on my feet I looked around and saw there were not over eight members in the House, that they were all engaged in writing at their desks, and that the chairman was reading a newspaper. The next morning the speech appeared in the CongressionalRecord, and every one spoke of it as a very fine argument in favor of the policy advocated by him.
My judicial career may be briefly stated. My district was the Third. It was bounded on the south by the southern boundary of Pierce and Kitsap Counties; on the east by the dividing ridge of the Cascade Mountains; on the north by the northern line of the Territory, which was the International boundary line; and on the west by the Pacific Ocean. I held two terms of Court annually at Seattle, Port Townsend, and Steilacoom. There was quite a volume of admiralty business. This was attended to whenever it arose, in term-time and out of term-time, in order to meet the convenience of suitors. No appeal was ever taken from my decrees in this class of business. I made it a point to clear the docket of all accumulated cases at each term. Homicides were quite frequent in the district, and I rarely held a term of Court without trying some person accused of murder in the first degree. There were frequent convictions for manslaughter, and for murder in the second degree, and sentences were imposed by me in accordance therewith. There were four convictions for murder in the first degree, and three executions. The facts and circumstances attending the fourth case deserve a more extensive statement. Before I make such a statement let me say, that while many appeals were taken from my judgments and rulings in criminal cases, I had but two reversals charged against me in a period of between six and seven years on the Territorial Bench. I hope no one will detract by implication from the honor of that record, by the insinuation that I was Chief Justice of the appellate tribunal for most of that time.
After the furor of "fifty four, Forty or Fight,"had somewhat subsided, the Treaty of Washington, entered into between the United States of America and Great Britain, adopted and extended the line of division between the Dominion of Canada and the United States along the 49th degree of North Latitude to the waters of the Pacific Ocean, as the northern land boundary of the United States; thence west by the principal channel or waterway to the center of the Strait of Juan de Fuca; thence along said center line to the Pacific Ocean. Now, it was found that there were two principal channels or waterways from the 49th degree to the Strait of Juan de Fuca. These waterways were the Canal de Haro and the Rosario Straits. The Canal de Haro was the most western and northern waterway; the Rosario Strait was the most eastern and southern waterway. San Juan Island and other smaller islands were situated between the two. If the Rosario Straits were adopted as the true line, these intervening islands belonged to Great Britain; if, on the other hand, the Canal de Haro was the true line, the islands belonged to the United States. By agreement of the high-contracting parties, the German Emperor was chosen as arbitrator to determine the location of the true line mentioned in the Treaty.
In 1859 an informal convention was entered into between the high-contracting parties by which the laws and civil officers of both nations were excluded from the territory in dispute; the islands in the meantime were to remain in the joint military occupation of the two nations. Hence, there was a British military post, and also an American military post, on San Juan Island, fully garrisoned. This informal understanding had not the dignity or force of a treaty, and was therefore binding on the courts only as a matter of policyand comity. It was binding only in the court of honor. Such being the facts, a man by the name of Charles Watts, an American citizen, foully murdered another American citizen near the military post of the United States. Watts was arrested by the Federal military authorities and held in confinement. There was a good deal of feeling and excitement over the matter. When I went to Port Townsend to hold Court, I issued a warrant, directed to the United States Marshal, to arrest said Watts and to bring him to Port Townsend for indictment and trial. He was readily delivered by the United States military authorities to the United States Marshal, and brought to Port Townsend. He was indicted by the grand jury for murder in the first degree, and tried and convicted at that term. He was sentenced by me to be hanged until he was dead. An appeal was taken from the final judgment in the case to the Supreme Court of the Territory; and, upon hearing, a majority of the Supreme Court, consisting of Judges Greene and Kennedy, reversed the judgment on the ground that the Federal side of the Court had no jurisdiction. To the general reader, it may be well to state that the Territorial Court had all the jurisdiction of the District and Circuit Courts of the United States, and such jurisdiction constituted what was called, the Federal side of the Court. It also had all the jurisdiction arising under the Territorial laws, and the common law suited to the conditions; and this constituted the Territorial side. Watts was indicted and tried on the Federal side of the Court, and the Supreme Court held that he ought to have been indicted and tried on the Territorial side of the Court—hence the reversal. I delivered a dissenting opinion which, as the case assumed a national importance, I give in full:
OPINION.
"As I cannot assent to the conclusion reached by the majority of the Court in this case, I will state as briefly as possible the conclusion of my own mind upon the question of jurisdiction involved in the case, with my reasons therefor.
"I have come to the conclusion that the United States side of the Court had jurisdiction, and for the following reasons:—
"1. We all agree that the phrase 'sole and exclusive jurisdiction,' as used in the Crime Act of A. D. 1790, 1 Stat. 113, has no reference to a claim of jurisdiction made by any foreign power, but to State and Federal jurisdiction, or, as we are situated, to Federal, as contra-distinguished from Territorial jurisdiction. We also agree that it is the duty of the judiciary to extend the jurisdiction of the laws of the United States as far as the political department of the government extends the territorial area.
"2. In my judgment it is the duty of the courts to construe all such conventions as that entered into between the government of the United States and Great Britain, with reference to the Island of San Juan, so as to avert the evil apprehended, and sought to be prevented.
"When the convention was entered into there was imminent danger of a conflict of arms. That danger arose from two causes—the action of the military commanders of this department and the enforcement of the laws of Washington Territory over the disputed domain. The first danger was removed by a change of commanders. The second, by the exclusion of the laws of the Territory, and that exclusion has been enforcedby the military power of the government ever since.
"3. Was it the intention then of the high-contracting parties, to exclude all law from San Juan Island, and to make it a secure asylum for thieves and murderers? I think not. Possibly there might be some ground for the recognition of the distinction between actsmalum in seandmalum prohibitum, acts which under every law, human and divine, are criminal, and those acts which are only criminal by virtue of some positive statute making them such. I infer that two civilized nations would not directly or indirectly, concur to create any such asylum.
"It was the design, then, that some laws should exist and be enforced on that island. That it was the design of the government to exclude the laws of the Territory is manifest by the proceedings of the convention and the action of the government from the date of the convention down to the present time. It was so understood by the military department; acquiesced in by the other departments of the government, and recognized as a fact by the courts of the Territory, and by the legislature, as is evidenced by the release of the county of Whatcom, within whose limits the island was included by a prior act of the legislature, from the payment of all costs for the prosecution of persons committing crime on said island.
"Whatever jurisdiction might have been claimed by the Territory prior to the last-cited act, was virtually abandoned by it.
"The exclusion of the territorial laws since the date of the convention has been open, manifest, and palpable, and I believe rightful. Then, if I am correct in my conclusions, no other laws were in force on theisland for the punishment of persons guilty of murder (not connected with the military), but the laws of the United States. In fact, it would follow as a logical sequence, that if the territorial laws were excluded it would be a place 'under the sole and exclusive jurisdiction of the United States,' hence, the laws of the United States would be operative there.
"I can see many cogent reasons why it was desirable to exclude territorial laws and territorial officials from the island. The territorial legislature represented but a small fraction of the American people and was far removed from the power which was responsible for a state of peace or war, and before measures could be disapproved by Congress a conflict might be precipitated. Territorial officers were not responsible, directly at least, to the supreme power. It had no control over their official conduct. All will agree that such control ought to be directly with the responsible power. That could only exist legitimately, but by the exclusion of the local jurisdiction and the operation of the national jurisdiction, modified by express convention or necessary implication.
"It might be very competent and very proper in the accomplishment of the object in view, for the treaty-making power to suspend the operations of all laws for the punishment of offenders save in the cases where the acts were crimes, by the universal judgment of mankind. The power to suspend or modify must exist somewhere, or in the case of disputed jurisdiction, there could be no treaty or conventions.
"All such conventions are founded on the mutual concessions of the high contracting parties. After the convention has been signed, the supreme power in our government, in order to secure its honest and faithfulexecution, took possession of the disputed Territory, segregated from its former local jurisdiction, and administers, modifies, or suspends its own laws by its own military or judicial agents. The supreme power acts through its own functions and not through that of an inferior jurisdiction. It administers its own laws so far as such administration is not in conflict with the convention. Its power is ample and it need not borrow from the inferior jurisdiction.
"It can not be argued successfully that because San Juan Island is within the limits of Washington Territory, that, therefore, it can only be subject to its laws. Puget Sound, Admiralty Inlet, and one-half of the Straits of Fuca are within the territorial boundaries, but still many of the criminal laws of the United States extend over them. Neither can the joint possession of the United States and Great Britain effect the question.
"The high seas are in the joint possession of all the nations, and yet every nation punishes its own subjects for crimes committed there. Watts is an American citizen, and the victim of his violence was also.
"4. I am unable to convince myself that, if one general law of the Territory went to that Island, but what all general laws went there. That they were not and are not permitted to go there is a fact too palpable for argument. The alternative then is presented, either that their exclusion by force has been rightful, or that the military department has been guilty of a gross usurpation.
"The latter branch of the alternative ought not to be received without the clearest and most indubitable proof of its correctness. I am not contending for the doctrine that a military order is absolutely conclusiveupon the courts, but it is always entitled to respectful consideration and will be presumed lawful until the contrary is shown. Especially, should such be the case when the order emanates from the highest functionary of the military department, and has been long sanctioned, at least by the acquiescence of every other department of government.
"To have permitted all the laws of the territorial legislature to have gone to the island would have resulted in the nullification of the convention. It would in fact have given the territorial legislature a veto on the treaty-making power of the government. Could this convention have stood for a day with the extension of the taxing power of this territory over that island? Every one knows that it could not. If the territorial jurisdiction extended there, it had the right to tax the property of the inhabitants thereof for territorial and other legitimate purposes. Taxes are not levied upon citizens, only, but inhabitants, property-holders, residents within the jurisdiction. The rightful exercise of such a power would have been decisive of the controversy, or rather it would have been exclusive of any rightful claim to controversy. Its attempted exercise would have been resisted with all the power of Great Britain. Reverse the circumstances and let British Columbia attempt to extend its taxing power over that island, and our government would resist the insult with all its military power.
"On what principle could a part of the general laws of the Territory go to that island, and a part not? It is of the very essence of general laws, at least, that they should be uniform and universal. If the territorial jurisdiction extended at all, it is complete andentire. It reaches all rightful subjects of legislation, and is supreme within those limits.
"For the above reasons, I am of the opinion that Watts was rightfully indicted under section 4 of the Crime Act of 1790, which reads as follows: 'If a person or persons, within any fort, arsenal, dockyard, magazine, or in any other place, or district or country, under the sole and exclusive jurisdiction of the United States, commit the crime of wilful murder, such person or persons, on being thereof convicted, shall suffer death.'
"But if there is a doubt as to whether San Juan Island was within the Third Judicial District or not, then the last clause of section 28 of the Crime Act of 1790 would apply, for Watts was first brought into the Third Judicial District and delivered to the marshal of the Territory by the order of the Secretary of War."
Immediately after the reversal I called a special term of the Court at Port Townsend, at which Watts was re-indicted on the Territorial side of the Court, tried, and again convicted and sentenced to be hung. He again appealed to the Supreme Court, but the judgment was affirmed; he then sued out a writ of error to the Supreme Court of the United States, and it was allowed, and it came up for hearing while I was Delegate from the Territory. The Court was informed that Watts had escaped from jail and was at large, and the Supreme Court refused to hear his writ of error. He has never been recaptured.
After all this had transpired, the German Emperor decided that the Canal de Haro was the true boundary line under the Treaty. The British troops were withdrawn from San Juan Island, and peace and friendship prevailed.
While I have always been in favor of liberty regulated by law, and have believed that order and security were the sure resultants of law's vigorous enforcement, yet there may be times and conditions, in frontier communities, when the suspension of the general rule, like the suspension of the great writ of Habeas Corpus, may be justified in the forum of reason and morals. Especially, is this true when the furore of the populace is not based on race, or class prejudice, or the frenzy of religion, or party madness; but has only for its ultimate, the security of person, property and habitation.
Hold-ups on the streets, with pistol accompaniments, were frequent in the City of Seattle; burglaries were the regular order of business; no man was safe in the streets after nightfall; in fact, fear had become so intensified that in the visitation of one neighbor to another's house after dark, the visitant, after proper precautions, was received with pistol in hand. Such were the conditions, I am sorry to say, existing in the embryo city of Seattle in January, 1882, and such had been the conditions for several months previous to that time. The town was full of thugs and criminals. Such a situation was intolerable. During its continuance one George Reynolds, a young and popular business man, was shot down in cold blood, between seven and eight o'clock in the evening, while going down Marion Street to his place of business on Front Street, now First Avenue. He was held up by two ruffians between what are now called Third, and Fourth Avenues. His money and his other valuables were demanded by them, and upon his refusal to deliver up, he was assassinated.
I have never been a believer in Divine interposition or impulsions, but I must confess that on that fatalevening, and on a few other occasions my rationalism was somewhat shaken. My usual route from my residence on Fourth Avenue to my office on James Street was down Marion Street. On that evening, arriving at Marion Street, under the influence of some occult force, or power, I stopped, looked down Marion Street, and saw the assassins of George Reynolds standing near the west end of the block and leaning against the wall of the Stacy premises. Impelled by this mysterious force, I involuntarily went on to Columbia Street, and, when nearly opposite on the block to the south, heard the report of the shot that ended the life of Reynolds. Soon after I arrived at my office, I was informed that Reynolds had been shot and that he was dying; that many citizens were assembling at the engine-house, and that my attendance was requested. I accompanied my informant to the engine-house and found there assembled from seventy to a hundred men, greatly excited and determined. We quickly formed ourselves into a Committee of Ways and Means, and resolved to spare no expense, nor to omit any means for the apprehension and punishment of the guilty parties. I was elected Chairman of that meeting. We also immediately sent out twenty-five armed men to patrol the streets leading out of town, and to guard, in boats, the water front. We soon after added to the patrol twenty-five more men; soon after, fifty more; and within an hour-and-one-half after the firing of the fatal shot, we had at least one hundred armed men, and detectives in the field, besides the active, vigilant, willing and intelligent regular police-force of the town. In addition, a select committee, headed by the Honorable William H. White, was appointed to investigate the circumstances of the shooting, and to ascertain, as nearly aspossible, the facts and circumstances identifying the guilty parties. I remained in the engine-house until after one o'clock, listening to the reports, made by patrolmen concerning suspicious characters, which were summarily examined and in most cases were dismissed as unfounded; but in a few cases the order was made to keep these suspects under strict surveillance, awaiting further developments. Between one and two o'clock a. m. the report came in that the guilty parties had been arrested, delivered to the sheriff and by him locked up in the County jail. They had been found concealed under bales of hay on Harrington's wharf. One had in his possession a pistol, but recently discharged. There were two of them. The news of their capture spread like wildfire. The patrolmen and other citizens came rushing in to the engine-house; and when the captors gave an account of their success, they were angrily asked, why they had delivered them to the sheriff, and why they had not brought them to the engine-house? The question was ominous. They were told that the captives were in the proper custody; and they were asked what they wanted the captives brought to the engine-house for? The reply was, that they wanted to look at them. This was still more ominous. I saw that so firm was the conviction that the parties arrested and in the rightful custody of the sheriff, were the guilty parties, that if the populace could get hold of them they would be strung up, without examination or trial. To this threatened act I was opposed, and I left the meeting and went down to my office. The light was still burning in the front room; I extinguished it, and, leaving the front door unlocked, went to the rear or consultation-room, locked the door and sat in a chair to meditate in the darkness on the situation,or condition of affairs. I had not been there long before two persons whom I recognized by their voices came into the front room and called me by name. I did not answer. They then came to the door of the consultation-room, rapped on the door, called me by my name and gave their own names. I finally admitted them. They told me that they had just left the crowd at the engine-house, and that the determination was fast approaching unity, and, if its culmination was not prevented, the captured men would be taken out of the jail and hung that night. They thought that I might prevent such an unnecessary and unwarranted ending of our grand and successful work. Knowing that the sheriff was a man of nerve and courage, and fearless in the discharge of his official duty I dreaded the result of such an undertaking, and I finally consented to go.
Upon arriving at the engine-house I found it filled by an excited yet joyous crowd. I made my way through this crowd to the rear of the large assembly-room, and while working my way through, received something of an ovation. While yet standing, someone said: "Judge, we thought you had thrown off on us." "Never," I replied. "But to illustrate my position," I said, "let me tell a story: Three negroes, passionately fond of hunting, and whose ambition in that regard was not fully satisfied by the capture of deer, turkey and quail in their native State, decided on a hunting-trip in the Rocky Mountains, to add the capture of larger and more dangerous game to their trophies. Being fully equipped, they bought tickets for a recommended point in the mountains. Arriving there, they left the train and went up into the dark woods, the sunless canyon, the silent coves and snow-crownedmountains, where the denizens of the wild were supposed to dwell. On the second day of their camping-trip, they came upon a large grizzly bear in a mountain cove. They fired at the grizzly and wounded him. Then the scene changed, and the bear commenced to hunt them fiercely. Two of them succeeded in climbing trees, but were unable to take their guns up with them. Sam, the other, was pushed so closely that he was unable to tree. He ran in a circle, with the bear in close and hot pursuit. His companions, safely perched in their tree, halloed to him to run. 'Sam, for God's sake, run.' One of the companions slipped down from the tree and, as Sam and the bear approached him, made a successful shot and finished the race so far as bruin was concerned. Sam, as soon as he could get his breath, says: 'What did you niggers mean by crying out to me, run Sam, for God's sake, run? did you suppose I was such an enormous fool as to throw off on that race?'" I told two more of the most ludicrous and laughable stories that I could think of; the object being manifest: I wanted time for the sober second thought to assert itself. I continued somewhat thus: "Are you afraid that the sheriff will send away the prisoners tonight, or that they will escape? If so, that can be prevented by sending twenty-five or fifty, or if you please, one hundred men, to keep watch and guard until nine o'clock tomorrow morning, when the justice has promised me to hold a public examination of the prisoners in the Pavilion, where all may come and see them and hear the examination." The Honorable William H. White, who was present, made a clear, earnest and forcible speech in favor of the proposition, and it was carried by a good majority.
The Pavilion was on the Southeast corner of Frontand Cherry Streets. It was used as a church, as a Court House, as a theater, and for all public meetings. It was over a hundred feet in length and about thirty feet in width. Its entrance was from Front Street.
At the appointed time Justice Samuel Coombs was in his seat and the prisoners were present. They both pleaded not guilty. Honorable William H. White and myself acted as prosecuting attorneys. A Mr. Holcomb, a lawyer of good standing and ability, appeared for the prisoners and sharply cross-examined the witnesses sworn on the part of the Territory. The Pavilion was full of spectators, among them was his Honor Roger S. Greene, the then Chief Justice of the Territory. When the evidence was all in, the Territory waived its opening, but the prisoners' counsel made a brief argument in their behalf. The Territory waived its right to reply. During the progress of the examination, the windows in the rear of the Pavilion had been quietly removed.
The Justice, after a few moments of reflection, declared that the evidence of the prisoners' guilt was clear and convincing beyond a reasonable doubt, and the order of the Court was, that they be held for trial without bail. When the Justice had ceased speaking, someone—I have never learned who it was—slapped his hands together three or four times; and that immense audience rushed with one accord to the open windows in the rear, taking the prisoners along with them. Judge Greene, at first, seemed dazed by this sudden rush, but in a short time he started to follow the crowd. A man standing near seized him as he attempted to go, pulled down the theater curtain, threw it over the Judge's head, and securely held him until the crowd was nearly all out of the building, whereuponJames McNaught quietly said: "Let him go." The Judge quickly rushed out of the building and down the alley to where the hanging was taking place. He seized one of the ropes and attempted to cut it, but he was soon hustled out of the crowd. Governor Elisha P. Ferry then advised him, as he could do nothing, to go home. This he did. The man who had thrown the theater-curtain over the Judge's head was asked why he did so; his answer was, that Justice ought to be blind, on such an occasion especially.