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LAW AND JUSTICE IN 19TH CENTURYARIZONA TERRITORY

By Fred Veil

he common perception that the Arizona Territory of the 19th Century existedlargely in a state of lawlessness is a myth. While the Territory certainly hadits share of criminal activity and civil disputes common to the Western

frontier, it also had a functioning legal system that, in general, appears to havedealt quite adequately with the legal and law enforcement issues of the day.

Motion pictures, television and dime novelsnot withstanding, law and justice in the Ari-zona Territory was not very different fromthat which existed in the more developed andarguably more civilized parts of the country.

The LawPrior to 1848, as a possession of Spain andthen Mexico, the area that came to be knownas the Arizona Territory was governed bySpanish and then Mexican law. The laws ofthese countries and therefore of Arizona werecomprised of a system of rigid codes unlikethat which existed anywhere in the English-speaking countries, including the UnitedStates. The latter, with its English heritage,operated under a system of “common law,”known essentially for its adaptability tochanging circumstances based on legal prin-ciples founded on concepts of reason, naturaljustice and enlightened public policy.1

When the United States assumed sovereigntyover Arizona in 1848 and thereafter createdthe Territory of New Mexico, which then in-cluded Arizona, that Territory, as a matter ofboth United States and international law, re-mained covered by the laws that had governedit when it was part of Mexico, subject to suchchanges as the new governing authorities mayenact. Significantly, the Organic Act that cre-ated the Territory of New Mexico did not

specifically adopt the English common law;therefore, the legislative enactments and judi-cial decrees which followed were heavily in-fluenced by Spanish and Mexican law.

The Organic Act establishing Arizona as aseparate territory on February 24, 1863 pro-vided that “…the legislative enactments of theTerritory of New Mexico not inconsistentwith the provisions of this act, are, herebyextended to and continued in force in the saidTerritory of Arizona, until repealed oramended by future legislation….” Thus, thelaw that first applied to Arizona as a separateterritory was, with a single exception, thesame as that by which it was covered when itwas part of the New Mexico Territory.2

One of the initial acts of the First TerritorialLegislature when it met in Prescott in the fallof 1864 was to adopt a code of laws draftedprincipally by Territorial Supreme Court As-sociate Justice William T. Howell with theassistance of Tucson attorney Coles Bashford.The “Howell Code,” as it came to be known,was comprised of 61 chapters based generallyupon the laws of Nevada, New York and Cali-fornia and is the origin of statutory law in theArizona Territory. Importantly, the Code re-pealed the laws and customs of Spain, Mexicoand New Mexico and specifically adopted thecommon law of the United States. Notwith-

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standing, the Code adopted by the legislaturewas in many respects strongly influence bythe Territory’s strong Spanish heritage. Forexample, the LegislativeAssembly’s regulatoryscheme of water and mari-tal rights is foreign to anynotion of English commonlaw. The concepts of “priorappropriation” and “com-munity property,” both ofwhich have applied to theArizona Territory since itsearliest days, are derivedfrom Spanish law and haveno parallel in the Englishsystem of common law.

Drafters of the CodeThe influence of JusticeHowell on Arizona law farsurpassed his tenure in the Territory. AMichigan lawyer, judge and politician, he wasappointed Associate Justice of the UnitedStates Court for the Terri-tory of Arizona by Presi-dent Abraham Lincoln inMarch, 1863. He arrived inthe Territory along withGovernor John N. Goodwinand other Territorial offi-cials in December, 1863and in March, 1864 wasassigned to the First Judi-cial District which sat inTucson. It was from thisseat in Tucson that Howellpresided over the first courtproceedings ever to be heldin the Territory and, withthe assistance of Bashford,drafted the TerritorialCode. Howell submittedthe proposed Code to the Territorial Legisla-tive Assembly on June 10, 1864 and shortlythereafter departed for Michigan to tend to hisailing wife. There is no record that he ever

returned to Arizona. He resigned from thefederal bench on March 8, 1865.Bashford, on the other hand, had a long and

distinguished career as alawyer and politician in theArizona Territory. A for-mer governor of Wisconsin,Bashford came to Arizonawith Governor Goodwin’sparty in 1863 and settled inTucson where he was en-gaged in the practice of lawwhen he was tapped byHowell to assist him in thepreparation of the HowellCode. In July, 1864 he waselected to the Council ofthe First Legislative As-sembly of the Territory3

and, when the Council con-vened in September of that

year, was chosen as its first President. Bash-ford was appointed by Goodwin to serve asthe Territorial Attorney General in 1866.

Thereafter, he was electedand served a two-year termas Territorial Delegate tothe United States Congress.In 1868, he was appointedby President Ulysses S.Grant to be Secretary of theTerritory, a position he helduntil 1876. Bashford alsopartnered with his brotherLevi to operate the Bash-ford Mercantile Store inPrescott. He died inPrescott in 1878.

The Legal SystemThe law and justice systemin the Arizona Territorywas not unlike that of other

territories and states within the United States,which essentially paralleled the coordinateforms of government – federal and state orterritorial - authorized by the U. S. Constitu-tion. Thus, separate federal and territorial le-

William T. Howell

Coles W. Bashford

Sharlot Hall Museum

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gal systems were established within the Ari-zona Territory and co-existed for a time withthe adjudicatory customs of the Indian tribesthat resided within the Territory.

The Organic Act that formed the Arizona Ter-ritory provided for the establishment of threejudicial districts, each of which was to be pre-sided over by a Territorial Supreme CourtJustice appointed by the President. The Or-ganic Act also gave each of the TerritorialDistrict Courts “…the same jurisdiction, in allcases arising under the Constitution and thelaws of the United States, as is vested in thecircuit and district courts of the UnitedStates.”4 Thus, three federal judicial districtswere established with boundary lines identicalto those of the Territorial judiciary. The Jus-tices appointed by the President served asboth federal and Territorial judges withintheir respective districts, hearing both civiland criminal cases in each jurisdiction. Fed-eral cases were heard once a year; Territorialcases were heard twice a year in each countywithin the judicial district. The three justicesalso functioned as a Supreme Court to hearappeals from both the federal and territorialcourts, which meant that at least in the earlyyears of the Territory’s existence a justice of-ten heard an appeal of a case he had presidedover as a trial judge.5

As was the case with other states and territo-ries within the United States, the jurisdictionof the federal courts in the Arizona Territorywas limited to matters arising out of the U. S.Constitution and the enforcement and prose-cution of federal laws. Since under the Con-stitution, the states (and territories) retainedthe vast majority of policing power, as apractical matter the Arizona Territorial Courtshad jurisdiction over substantially all of thecrimes and civil disputes that occurred withinthe Territory.

In April 1864 Governor Goodwin establishedthe three judicial districts authorized by theOrganic Act. Shortly thereafter, the First

Legislative Assembly created four countieswithin the Territory – Yavapai, Pima, Yumaand Mohave – the boundaries of which weregenerally coincident with the judicial districts.Of course, as the Territory developed and itspopulation increased, new counties were cre-ated and the number of judicial districts wasincreased by Congress from three to five.

While the counties did not have a separatejudicial system as they do today, “precincts”were established within each county and theresidents within each such precinct electedminor judicial officials called Justices of thePeace. The Precinct Justice of the Peace wasthe ground-level of the Anglo-American jus-tice system. He had original jurisdiction overminor cases and, importantly, was responsiblefor examining persons accused of more seri-ous crimes to determine whether they shouldbe held over for possible grand jury indict-ment. By 1866, there were 13 Precinctswithin Yavapai County alone.

During the 1860’s there were 15 recognizedIndian Tribes in the Arizona Territory andeach of them had some form of tribal justicesystem. Among the more developed systemswere those of the Papago and the Yavapai.The latter, while lacking a formal enforce-ment mechanism, nevertheless adopted meth-ods for punishing Indian transgressors. Forexample, in the case of murder, the victim’srelatives had not only the right but the obliga-tion to seek vengeance, either in the form ofreparations such as a horse or some other arti-cle of value, or by seeking permission fromthe murderer’s family to kill him. Other seri-ous offenses, such as rape and theft, generallyrequired compensation in order to avoidphysical attacks or destruction of property bythe victim’s family.

During most of the Territorial Period, Ari-zona’s Territorial Courts had no jurisdictionover Indians, as the United States specificallyreserved authority over these Indian nationsas a province of the federal government.

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Notwithstanding, the Arizona authorities ig-nored the law with respect to crimes commit-ted by Indians while outside the boundaries oftheir reservations. Thus, between 1864 and1886, the de facto jurisdiction of the authori-ties with respect to Indians was as follows: (1)the federal government prosecuted crimescommitted on a reservation by non-Indians;(2) the Territory prosecuted crimes committedoff a reservation by both Indians and non-Indians; and (3) tribal authorities adjudicatedcrimes committed on a reservation involvingIndians only. This infor-mal and extra-legal juris-dictional arrangementchanged in 1886, whenCongress, in response to aU.S. Supreme Court deci-sion in “Crow Dog’sCase,”6 enacted the Ma-jor Crimes Act, whichgave territorial courts ju-risdiction over murderand six other majorcrimes7 committed byIndians whether on or offthe reservation. TheMajor Crimes Act foreshadowed the assimi-lation of Indians into the criminal justice sys-tem in the Arizona Territory.

The First JuristsIn March, 1863 President Lincoln appointedJohn N. Goodwin as Chief Justice of the Su-preme Court of the Arizona Territory andWilliam T. Howell and Joseph P. Allyn asAssociate Justices. Goodwin never served inthis capacity, as he was shortly thereafter ap-pointed by Lincoln to be Governor of the Ter-ritory when the President’s initial appointee,John A. Gurley of Ohio, died before assumingoffice. Thereafter, Lincoln appointed WilliamF. Turner as Chief Justice. Thus, the firstTerritorial Supreme Court was comprised ofTurner, Howell and Allyn.

As previously noted Howell was assigned tothe First District (Tucson). Chief Justice

Turner occupied the bench at Prescott (ThirdDistrict) and Allyn held court at La Paz (Sec-ond District). Turner served the Territory asChief Justice for nearly four years. The ten-ures of Howell and Allyn were short lived8

and neither of the latter named justices servedlong enough to sit as a member of the Territo-rial Supreme Court.9

Short tenures as Territorial Supreme CourtJustices were not uncommon, as the Justiceswere presidential appointees and thus gener-

ally came from parts ofthe country that were in-variably more civilizedand genteel than the rug-ged Arizona frontier.Simply moving about theTerritory during the1800’s was very difficultand often dangerous.Moreover, these appoint-ees were generally unfa-miliar with the customsand people of the West.Finally, as political ap-pointees they were sub-

ject to the political fortunes of the appointingauthorities in Washington. By and large,however, they served the Territory compe-tently.

The Prescott courtroom of Associate JusticeCharles C. W. French on December 3, 1883may have been cause for at least one Territo-rial judge to question his dedication to thebench. On that date French was trying a caseinvolving a dispute over water rights betweentwo Kirkland Valley ranchers, Mrs. Kelseyand Patrick McAteer. In the course of thecross-examination of a witness, the lawyersrepresenting the opposing parties got into aheated argument which escalated into a gen-eral melee with ink stands, chairs and otherarticles being tossed about at will. Not to beoutdone, McAteer pulled a large knife andsought out Kelsey’s son-in-law, Beach, as hisvictim. Beach drew his pistol and shot

Original Judicial Districts

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McAteer. A second shot by Beach knockedout a large kerosene lamp suspended over thejudge’s bench and put the courtroom in com-plete darkness. The gunshots apparently werethe catalyst for reasoned judgment to set in,and the carnage was ended. When all wassaid and done, McAteer was dead but nor be-fore he had seriously wounded a witness withhis knife and caused minor injuries to others,including the Court Clerk, William O.“Buckey” O’Neill. Judge French, who afterthe melee was ended was observed well-ensconced under some protective chairs, waslater to remark that “Had it not been for mycoolness and presence of mind on that occa-sion, more people would have been killed orinjured on that tragic night.”10

The EnforcersAs previously noted, our constitutional formof government reserved the primary policingpower within the country to the states, and byextension, the territories. It follows, there-fore, that the most important law enforcementofficials in the Arizona Territory during the19th Century were the County Sheriff and theDistrict Attorney, both of whom were electedby the voters. This, of course runs counter to

the common perception that the United StatesMarshal was the primary lawman of the “OldWest.” In actuality, because of their limitedjurisdiction, the U.S. Marshal and the U.S.Attorney played rather insignificant law-enforcement roles in the Arizona Territoryduring the 19th Century. 11

The County Sheriff and his appointed depu-ties and other staff were responsible formaintaining the peace, investigating crimes,apprehending and arresting lawbreakers, per-forming executions, serving summons andwarrants, summoning jurors for both petit andgrand juries and serving as the County Jailer.The Sheriff also served as the Tax Collectorfor the County. The District Attorney pre-sented cases to grand juries, drew up indict-ments as required by grand jury action, prose-cuted all criminal cases within his assignedjudicial district and represented the county orcounties within his district in civil actionsbrought by or against it or them.12

The Sheriff and District Attorney were poorlypaid throughout the 19th Century and reliedprimarily on fees paid for specified servicesfor their income. Often, they had additional

Yavapai County’s Original Courthouse, built in 1867

Sharlot Hall Museum

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sources of income from other employment inboth the private and public sector. For exam-ple, District Attorneys generally had a concur-rent private legal practice and the CountySheriff may have owned a ranch or a retailestablishment. Often, they had positions offederal employment as well. It was not un-common for the District Attorney to serveconcurrently as an Assistant United StatesAttorney or the County Sheriff to be cross-deputized as an Assistant United States Mar-shal, each within their respective judicial dis-tricts. This arrangement not only providedadditional income to these public servants, butalso enabled them to enforce federal laws aswell.

The Sheriff’s responsibilities as the countyjailer presented special problems, particularlyduring the early Territorial years. The earlyjails were either non-existent or very primi-tive, often being nothing more than a frameshack with or without bars. Thus, breakouts ofincarcerated persons serving sentences orawaiting trial or the gallows, were common.Protecting prisoners against vigilantes boundand determined to serve the sentence of“Judge Lynch” also presented special prob-lems for County Sheriffs, as many of the per-sons who participated in these extra-legal ac-tivities were respected members of the com-munity and voters as well.13 Over time, theconstruction of more secure facilities easedsome of these conditions. Yavapai County,for instance, was in the forefront in this re-spect, having constructed a two-story buildingon Cortez Street in 1867 to accommodate thesheriff’s office, the jail and the county court-room, which also doubled as a communitymeeting hall.

The least desirable task that frontier sheriffsof the Arizona Territory had to perform wasto carry out the execution of persons sen-tenced to death by hanging. Even the mosthardened lawmen often sought to delegatethat unpleasant duty to others. For example,in 1898 Yavapai County Sheriff George

Ruffner, who was reputed to be a tough andeffective lawman, sought out a surrogate ex-ecutor to preside over the hanging of FlemingParker, a convicted murderer. Parker, how-ever, would have none of it as he wanted a“real man” to hang him. Ultimately, Ruffnercomplied with Parker’s request and officiatedat his execution.14

The popular characterization of the frontierlawman as the steely-eyed gunslinger thatfaced down the bad guys on a dusty street athigh noon is largely a fiction created by the20th Century media. For the most part, thesheriffs who served the Arizona Territorywere ordinary folks who did their best to keepthe peace and carry out the other duties oftheir office without resort to the gun. Theydid it by the force of the inherent authority oftheir office,15 the judicious utilization of citi-zen posses16 and the support of the peoplewho voted them into (or out of) office. Thatis not to say that Arizona did not have somelawmen who were noted gunmen and man-hunters. Commodore Perry Owens (ApacheCounty, 1887-1888) and John Slaughter(Cochise County, (1887-1890) were knownfor their dexterity with weapons but, moreimportantly, their willingness to use them. 17

But, for every Owens and Slaughter, theremany others sheriffs during the Territorialyears that quietly went about the business ofenforcing the law without resort to the “law ofthe gun.”

In the early Territorial years any white malewho was at least 21 years of age and of “goodmoral character” could be admitted to thepractice of law in the Supreme and DistrictCourts of the Arizona Territory. These re-quirements or, more accurately, the lackthereof, led to the admission of many menwho were unqualified or ill-suited for thepractice of law. It was not until 1901 that theCode required applicants for admission to thepractice of law to have “a good knowledge oflegal principles, rules of pleading and prac-

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tice, rules of evidence and the ethics of theprofession of the law.”

When the Territorial Supreme Court met forthe very first time in Prescott on December26, 1864 it admitted seven men to practicebefore it and the District Court, includingBashford, the co-drafter of the Howell Code,and John Howard, who was to practice law inPrescott for many years and serve as thattown’s mayor for six terms. Soon thereafter,these initial admittees were joined by sevenothers, including E.W. Wells, a promi-nent lawyer and juristwho served as an As-sociate Justice of theSupreme Court in theearly 1890’s. By1895, there were 195practicing lawyers inthe Arizona Terri-tory.18

It was not until 1892,five years after themale-only limitationwas lifted by the 14th

Legislative Assemblythat an Arizona courtfirst admitted a fe-male lawyer to prac-tice. Sarah Herring,the schoolteacher daughter of Tombstonelawyer Colonel William Herring, was admit-ted to practice in the First Judicial District inNovember, 1892 and shortly thereafter (Janu-ary 12, 1893) to the Territorial SupremeCourt. Herring, who adopted her husband’ssurname following her marriage to ThomasSorin in 1898, primarily practiced mininglaw, and she is credited with being the firstfemale lawyer to argue a case unassisted andunaccompanied by a male counsel before theUnited States Supreme Court.19

While much has been said about the enforce-ment role of the lawyers and lawmen, the

practice of law in the Arizona Territory wasnot, of course, confined to the prosecution ofcrimes against the public. Even at a timewhen a mere handshake was often enough tocement a deal between two contracting par-ties, lawyers performed many of the functionsthen as they do today, including the repre-sentation of clients at trial in civil matters. Asthe Territory developed, lawyers developedpractices around major economic events, e.g.,mining, farming and ranching, transportationand, of course, water rights.

Lawyers also prac-ticed criminal defenselaw, representing per-sons accused ofcommitting acts pro-scribed by the crimi-nal codes of the Ter-ritory and the UnitedStates. For example,Tucson a t torneyJames E. McCaffrywas appointed to rep-resent Delores Moore,who was accused ofmurdering her hus-band in December,1868. Moore wasconvicted and sen-tenced to be hanged.Her sentence was

later commuted to life by Acting GovernorCarter.

Bias and prejudice were no strangers to theapplication of the law during the Territorialperiod. The commutation of Delores Moore’ssentence was not an aberration. Whilewomen could not vote, serve on juries orpractice law in Arizona during all or most ofthe 19th Century, there was a definite biasagainst executing those of the fairer sex. De-spite numerous convictions of females formurder, not a single woman was legally exe-cuted during the Territorial period.

Sarah Herring Soring, Arizona Territory’sFirst Female Lawyer

Arizona Historical Society

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Camp Grant MassacreThe tension that existed between the Anglosand the Apaches in the latter part of the 19th

Century also resulted in an uneven applicationof the law. On April 30, 1871, Sidney R. De-Long and William S. Oury, both of Tucson,led a vigilante force of Anglos, Mexicans andPapago Indians20 in a raid on a band of Ara-vaipa Apaches who, with explicit permissionof the Camp Grant commanding officer, werepeacefully residing nearby, killing well over100 defenseless Apaches, all but a few ofwhich were women and children. While thevigilante action was supported by many inArizona, Easterners were outraged and Presi-dent Grant demanded that Governor Saffordbring the perpetrators to trial. DeLong, Ouryand most of their vigilantes were indicted,21

charged with murder under federal law andtried before a jury in federal district court inDecember, 1871. The defense, representedby James E. McCaffry, the lawyer who hadrepresented Delores Moore in her murder trial(see above), and Granville Oury, the youngerbrother of the defendant, did not deny that thedefendants had killed the Apaches; rather,they defended on the basis that the defen-dants’ actions were defensive as they and oth-ers had been subject to persistent depredationsby the Apaches. The judge who presided overthe trial, Associate Justice John Titus, in-structed the jury to consider the attack “justi-fiable and defensible” if the evidence showedthat Anglo, Mexican and Papago residents

had been persistently subject to depredationsby the Apaches and further that persons whohad not been adequately protected fromApache spoliation and assaults by the U.S.Government had “a right to protect them-selves and employ a force large enough forthat purpose.” Predictably, DeLong, Oury22

and the others were acquitted, a devastatingloss for federal law enforcement in the Ari-zona Territory. It took the jury all of 19 min-utes to reach its verdict. 23

ConclusionNotwithstanding the inevitable existence ofbias and prejudice in the administration ofjustice in 19th Century Arizona Territory, byand large the legal system was reasonably ef-ficient. Territorial and federal law enforce-ment officials – lawmen and lawyers – didtheir jobs, keeping the peace, apprehendingcriminals and bringing them to justice in ac-cordance with a legal code specificallyadapted to the unique requirements of a newterritory. Lawyers in civil practice repre-sented clients in matters of probate, real es-tate, mining, ranching, transportation, waterirrigation and the like, and by their efforts in-fluenced the establishment of rules of law thathelped to civilize and stabilize an evolvingand developing territory and prepare it forstatehood. The jurists of the time, while fed-eral appointees who generally did not servelong tenures, served competently and dis-pensed justice in both criminal and civil mat-

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ters effectively in accordance with the laws ofthe Territory. Certainly, there were law-breakers who went unpunished and personswho were not brought to task for violating thepersonal and property rights of others, butsuch was the case elsewhere in the countythen as it is today. Arizona was far from thelawless image of Western lore.

BIBLIOGRAPHYThe principal resources for materials relatingto the political and legal development of theArizona Territory and lawyers and juristswere two books by James M. Murphy: Laws,Courts and Lawyers, Through the Years inArizona (Tucson, University Press, 1970) andSpanish Legal Heritage (Tucson, ArizonaPioneers’ Historical Society, 1966); Jay J.Wagoner’s Arizona Territory 1863-1912, APolitical History (Tucson, University of Ari-zona Press, 1970); John Goff’s The SupremeCourt Justices, 1863-1912, Volume 1 of Ari-

zona Territorial Officials, Black MountainPress, Cave Creek, Arizona, 1975; and a dis-sertation written by Paul Thomas Hietter inconnection with his pursuit of a degree ofDoctor of Philosophy at Arizona State Uni-versity in 1999, entitled Lawyers, Guns andMoney: The Evolution of Crime and CriminalJustice in Arizona Territory. The principalresource materials for the lawmen of the Ter-ritory and their roles with respect to the en-forcement of territorial and federal law weretwo books written by Larry D. Ball: DesertLawmen, The High Sheriffs of New Mexicoand Arizona, 1846-1912 (Albuquerque, Uni-versity of New Mexico Press, 1992 and TheUnited States Marshals of New Mexico & Ari-zona Territories 1846-1912 (Albuquerque,University of New Mexico Press, 1978). Theprincipal resource for biographic materialswas the Archives of the Sharlot Hall Museumat Prescott. Other sources and suggestedreadings are referenced in the endnotes thatfollow.

LAW AND JUSTICE ENDNOTES 1 Of course, the common law – whether English orU.S. – was subject to modification by legislativeenactment.2 The exception dealt with slavery. The OrganicAct for the Arizona Territory provided that neitherslavery nor involuntary servitude shall be lawful inthe Territory.3 The First Legislative Assembly was comprised oftwo bodies, a nine member Council and an eight-een member House of Representatives. The Or-ganic Act of the Territory of Arizona, 1863.4 The Organic Act of New Mexico (1850) whichwas incorporated by reference into the Organic Actof Arizona. See Compiled Laws of the Territory ofArizona, 1871. The Act also provided for justiceof the peace and probate courts within each judi-cial district, the former to handle minor criminaland civil matters and the latter to handles estates ofdeceased persons and maintain records of titles toreal estate.5 In 1895, Congress added a fourth justice to theTerritorial Court and provided that any three jus-

tices would constitute a quorum of the SupremeCourt. Thereafter, a justice who presided over acase at the trial court level was precluded fromparticipating as a member of the Court on an ap-peal therefrom unless one of the other justices wasdisqualified for other reasons.6 Crow Dog murdered Spotted Tail, a Sioux chief.Crow Dog was arrested by the tribal police. Thematter was settled by the families of Crow Dogand Spotted Tail in accordance with tribal customfor $600, eight horses and a blanket. Bowing topublic outrage, Crow Dog was arrested and tried ina federal court in the Dakota Territory, convictedand sentenced to be hanged. The conviction wasreversed by the U.S. Supreme Court in 1883 on thebasis that federal courts had no jurisdiction overcrimes committed on reservations where both par-ties were Indians. Ex Parte Crow Dog, 109 U.S.556 (1883).7 The other major crimes were: manslaughter, rape,assault with intent to kill, arson, burglary and lar-ceny.8 Howell’s brief period in AT is discussed above.He was replaced by Harry T. Backus. Allyn ranunsuccessfully for Congress in 1865 and was alsounsuccessful in his efforts to be appointed to thegovernorship shortly thereafter. He was replaced

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as Associate Justice by Harley H. Cartter in late1865. Allyn is best known for his writings of histravels in the Arizona Territory in the 1860’s. (SeeThe Arizona of Joseph Pratt Allyn, Letters From aPioneer Judge, Observations and Travels, 1863-1865, edited by John Nicholson. Tucson, Univer-sity of Arizona Press, 1974.)9 The Territorial Supreme Court convened for thefirst time on December 26, 1865 at Prescott in theCouncil’s chambers. Chief Justice Turner andAssociate Justices Cartter and Backus were themembers of the Court.10 The quote attributed to Justice French was re-ported in James Murphy’s book entitled Laws,Courts and Lawyers, Through the Years in Ari-zona, Tucson, University of Arizona Press, 1970 atpage 64. For other accounts of this event, seeWalker, Dale L. Roughrider, Buckey O’Neill ofArizona, Lincoln, University of Nebraska Press,1975 and Lauer, Charles D. Arrows, Bullets andSaddlesores, Golden West publishers, 2003.11 As towns developed in the Territory, many em-ployed local lawmen, known as town marshals,constables or policemen, each of whom performedimportant law enforcement roles within their re-spective jurisdictions..12 The office of the District Attorney was createdby the Third Legislative Assembly in 1866; priorthereto the Territorial Attorney General performedthese functions.13 Statistics of lynchings in the Arizona Territoryare imperfect; however, one source identified 70persons who were lynched between 1864 and1912. Ball, Desert Lawmen, Appendix C, pages381-82.14 Ball, Desert Lawmen at 153.15 As an interesting side note, while many lawmenpurchased badges or shields of their office fromdrummers or salesmen who traveled about theWest, others fashioned their badges from tin cans;thus, the term “tin star”. Ball, Desert Lawmen at22.16 The 1789 federal Judiciary Act adopted theEnglish common law concept of the “posse comi-tautas” (power of the county) and authorized lawenforcement officials to require citizens to serveon posses. Territorial sheriffs had similar rights.17 Both Owens and Slaughter entered office on lawand order campaigns, promising to clean up theirrespective counties of the rampart lawlessness thatexisted in Apache and Cochise counties at thetime. Both men were known as “quick guns” (ascontrasted with “quick draw”), meaning they werewilling to shoot sooner than those who stood inopposition to them. Slaughter, for example, was

said to have cautioned his deputies that in makingan arrest of a “bad sort” his advice was to shootfirst and then yell “throw up your hands.” Ball,Desert Lawmen at 193.18 The territorial authorities apparently paid littleheed to their Spanish heritage. In 1520, HernanCortez issued a decree prohibiting “attorneys andmen learned in the law from setting foot in thecountry [New Spain] on the ground that experi-ence had shown they would be sure by their evilpractices to disturb the peace of the community.”W. H. Prescott, History of the Conquest of Mexico(London: George Allen & Unwin Ltd., 1949),page 583.19 Work v. United Globe Mines, 231 US 595(1914). See, “Sarah Herring Sorin: Arizona’sFirst Woman Attorney”, Danielle Janitch, StanfordLaw School (2001).20 There were only 6 Anglos in the Oury/DeLongforce, which included 48 Mexicans and 92 Papa-gos.21 C.W.C. Rowell, the district attorney, encoun-tered considerable difficulty obtaining indictmentsand had to resort to making a deal with his friendAndrew Cargill who was a member of the federalGrand Jury. Rowell told Cargill that if indictmentsdid not issue, President Grant would declare mar-tial law and try the perpetrators by a military trial.Neither Roswell nor Cargill believed that theOury/DeLong group would be convicted by a jurycomprised of Tucsonians; therefore, the deal wasstruck to indict and submit to a trial before a juryof their peers rather than one comprised of militaryofficers. Ultimately, the grand jury which, inci-dentally, included pioneer Charles Trumbell Hay-den, issued 103 indictment; however, since manyof the participants were respected Tucsonans, mostof the indictments were issued under “aliases”.Scheille at 174-176.22 Oury was elected Sheriff of Pima County andserved that office from 1872 to 1877; he alsoserved concurrently as Deputy United States Mar-shal. (Ball, United States Marshals at 68; Ball,Desert Lawmen at 351)23 The quotes attributed to Justice Titus were re-ported in Wagoner’s Arizona Territory, 1863-1912at 131. For a more complete description of theCamp Grant Massacre and the subsequent trial, seeVast Domain of Blood by Don Scheillie, TowerPublications, 1971.