Memoirs of Orange Jacobs Part 4

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 ma.n.u.script. 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 ma.n.u.script 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 ma.n.u.script. 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 ma.n.u.script on the desk, stepped out into a s.p.a.ce nearly in front of the Speaker, and gave the points of his speech without the aid of his ma.n.u.script. 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 spoke in 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. In the 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 ent.i.tled 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 const.i.tuting 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 pa.s.sage, but one speech would be made in its favor, and that was to be made by Mr. Loring, of Ma.s.sachusetts, 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 ma.n.u.script 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, inst.i.tutions of learning and other eleemosynary inst.i.tutions 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 a.s.sert 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 Ma.s.sachusetts on his great effort, stated that some of the buildings const.i.tuting the College, while in the possession 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 Ma.s.sachusetts. 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" c.o.x, when the former was frequently interrupting him. With a motion of his hand over his bald head, he exclaimed to c.o.x: "Shoo, Fly!

don't bother me." It was taken from one of the popular songs of the day.

It hurt c.o.x's prestige and lessened to some extent his power. c.o.x 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 bark Bay 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 a.s.s."

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 what is the matter with you." This was perfectly parliamentary and a complete exterminator.

Many people suppose Congress to be an a.s.semblage 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 ma.n.u.script. 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 cla.s.s 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 originated with 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 ma.n.u.script. His voice was indistinct and it lacked in volume. After reading two or three pages from the ma.n.u.script 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 Congressional Record, 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 cla.s.s of business. I made it a point to clear the docket of all acc.u.mulated 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 circ.u.mstances 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 Lat.i.tude to the waters of the Pacific Ocean, as the northern land boundary of the United States; thence west by the princ.i.p.al 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 princ.i.p.al channels or waterways from the 49th degree to the Strait of Juan de Fuca. These waterways were the Ca.n.a.l de Haro and the Rosario Straits. The Ca.n.a.l 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 Ca.n.a.l 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 policy and 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 const.i.tuted 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 const.i.tuted 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 a.s.sumed a national importance, I give in full:

OPINION.

"As I cannot a.s.sent 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 enforced by 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 acts _malum in se_ and _malum 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 the island 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 faithful execution, 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 conclusive upon the courts, but it is always ent.i.tled 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 circ.u.mstances 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 and entire. 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, a.r.s.enal, 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 Ca.n.a.l 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 cla.s.s 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 a.s.sa.s.sinated.

I have never been a believer in Divine interposition or impulsions, but I must confess that on that fatal evening, 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 a.s.sa.s.sins 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 a.s.sembling at the engine-house, and that my attendance was requested. I accompanied my informant to the engine-house and found there a.s.sembled 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 circ.u.mstances of the shooting, and to ascertain, as nearly as possible, the facts and circ.u.mstances 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 a.s.sembly-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 ill.u.s.trate my position,"

I said, "let me tell a story: Three negroes, pa.s.sionately 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-crowned mountains, 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 G.o.d'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 n.i.g.g.e.rs mean by crying out to me, run Sam, for G.o.d'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 a.s.sert 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 Front and 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.