Law & Justice in 19th Century Arizona Territory

By Fred Veil

The common perception that the Arizona Territory of the 19th Century existed largely in a state of lawlessness is a myth. While the Territory certainly had its share of criminal activity and civil disputes common to the Western frontier, it also had a functioning legal system that, in general, appears to have dealt quite adequately with the legal and law enforcement issues of the day.

Motion pictures, television and dime novels notwithstanding, law and justice in the Arizona Territory was not very different from that which existed in the more developed and arguably more civilized parts of the country.

The Law

Prior to 1848, as a possession of Spain and then Mexico, the area that came to be known as the Arizona Territory was governed by Spanish and then Mexican law. The laws of these countries and therefore of Arizona were comprised of a system of rigid codes unlike that which existed anywhere in the Englishspeaking countries, including the United States. The latter, with its English heritage, operated under a system of “common law,” known essentially for its adaptability to changing circumstances based on legal principles founded on concepts of reason, natural justice and enlightened public policy.1

When the United States assumed sovereignty over Arizona in 1848 and thereafter created the Territory of New Mexico, which then included Arizona, that Territory, as a matter of both United States and international law, remained covered by the laws that had governed it when it was part of Mexico, subject to such changes as the new governing authorities may enact. Significantly, the Organic Act that created the Territory of New Mexico did not specifically adopt the English common law; therefore, the legislative enactments and judicial decrees which followed were heavily influenced by Spanish and Mexican law.

The Organic Act establishing Arizona as a separate territory on February 24, 1863 provided that “…the legislative enactments of the Territory of New Mexico not inconsistent with the provisions of this act, are, hereby extended to and continued in force in the said Territory of Arizona, until repealed or amended by future legislation….” Thus, the law that first applied to Arizona as a separate territory was, with a single exception, the same as that by which it was covered when it was part of the New Mexico Territory.2

One of the initial acts of the First Territorial Legislature when it met in Prescott in the fall of 1864 was to adopt a code of laws drafted principally by Territorial Supreme Court Associate Justice William T. Howell with the assistance of Tucson attorney Coles Bashford. The “Howell Code,” as it came to be known, was comprised of 61 chapters based generally upon the laws of Nevada, New York and California and is the origin of statutory law in the Arizona Territory. Importantly, the Code repealed the laws and customs of Spain, Mexico and New Mexico and specifically adopted the common law of the United States. Notwith-standing, the Code adopted by the legislature was in many respects strongly influence by the Territory’s strong Spanish heritage. For example, the Legislative Assembly’s regulatory scheme of water and marital rights is foreign to any notion of English common law. The concepts of “prior appropriation” and “community property,” both of which have applied to the Arizona Territory since its earliest days, are derived from Spanish law and have no parallel in the English system of common law.

Drafters of the Code

The influence of Justice Howell on Arizona law far surpassed his tenure in the Territory. A Michigan lawyer, judge and politician, he was appointed Associate Justice of the United States Court for the Territory of Arizona by President Abraham Lincoln in March, 1863. He arrived in the Territory along with Governor John N. Goodwin and other Territorial officials in December, 1863 and in March, 1864 was assigned to the First Judicial District which sat in Tucson. It was from this seat in Tucson that Howell presided over the first court proceedings ever to be held in the Territory and, with the assistance of Bashford, drafted the Territorial Code. Howell submitted the proposed Code to the Territorial Legislative Assembly on June 10, 1864 and shortly thereafter departed for Michigan to tend to his ailing wife. There is no record that he ever returned to Arizona. He resigned from the federal bench on March 8, 1865.

Bashford, on the other hand, had a long and distinguished career as a lawyer and politician in the Arizona Territory. A former governor of Wisconsin, Bashford came to Arizona with Governor Goodwin’s party in 1863 and settled in Tucson where he was engaged in the practice of law when he was tapped by Howell to assist him in the preparation of the Howell Code. In July, 1864 he was elected to the Council of the First Legislative Assembly of the Territory3 and, when the Council convened in September of that year, was chosen as its first President. Bashford was appointed by Goodwin to serve as the Territorial Attorney General in 1866. Thereafter, he was elected and served a two-year term as Territorial Delegate to the United States Congress. In 1868, he was appointed by President Ulysses S. Grant to be Secretary of the Territory, a position he held until 1876. Bashford also partnered with his brother Levi to operate the Bashford Mercantile Store in Prescott. He died in Prescott in 1878.

The Legal System

The law and justice system in the Arizona Territory was not unlike that of other territories and states within the United States, which essentially paralleled the coordinate forms of government – federal and state or territorial - authorized by the U. S. Constitution. Thus, separate federal and territorial legal systems were established within the Arizona Territory and co-existed for a time with the adjudicatory customs of the Indian tribes that resided within the Territory.

The Organic Act that formed the Arizona Territory provided for the establishment of three judicial districts, each of which was to be presided over by a Territorial Supreme Court Justice appointed by the President. The Organic Act also gave each of the Territorial District Courts “…the same jurisdiction, in all cases arising under the Constitution and the laws of the United States, as is vested in the circuit and district courts of the United States.”4 Thus, three federal judicial districts were established with boundary lines identical to those of the Territorial judiciary. The Justices appointed by the President served as both federal and Territorial judges within their respective districts, hearing both civil and criminal cases in each jurisdiction. Federal cases were heard once a year; Territorial cases were heard twice a year in each county within the judicial district. The three justices also functioned as a Supreme Court to hear appeals from both the federal and territorial courts, which meant that at least in the early years of the Territory’s existence a justice often heard an appeal of a case he had presided over as a trial judge.5

As was the case with other states and territories within the United States, the jurisdiction of the federal courts in the Arizona Territory was limited to matters arising out of the U. S. Constitution and the enforcement and prosecution of federal laws. Since under the Constitution, the states (and territories) retained the vast majority of policing power, as a practical matter the Arizona Territorial Courts had jurisdiction over substantially all of the crimes and civil disputes that occurred within the Territory.

In April 1864 Governor Goodwin established the three judicial districts authorized by the Organic Act. Shortly thereafter, the First Legislative Assembly created four counties within the Territory – Yavapai, Pima, Yuma and Mohave – the boundaries of which were generally coincident with the judicial districts. Of course, as the Territory developed and its population increased, new counties were created and the number of judicial districts was increased by Congress from three to five.

While the counties did not have a separate judicial system as they do today, “precincts” were established within each county and the residents within each such precinct elected minor judicial officials called Justices of the Peace. The Precinct Justice of the Peace was the ground-level of the Anglo-American justice system. He had original jurisdiction over minor cases and, importantly, was responsible for examining persons accused of more serious crimes to determine whether they should be held over for possible grand jury indictment. By 1866, there were 13 Precincts within Yavapai County alone.

During the 1860’s there were 15 recognized Indian Tribes in the Arizona Territory and each of them had some form of tribal justice system. Among the more developed systems were those of the Papago and the Yavapai. The latter, while lacking a formal enforcement mechanism, nevertheless adopted methods for punishing Indian transgressors. For example, in the case of murder, the victim’s relatives had not only the right but the obligation to seek vengeance, either in the form of reparations such as a horse or some other article of value, or by seeking permission from the murderer’s family to kill him. Other serious offenses, such as rape and theft, generally required compensation in order to avoid physical attacks or destruction of property by the victim’s family.

During most of the Territorial Period, Arizona’s Territorial Courts had no jurisdiction over Indians, as the United States specifically reserved authority over these Indian nations as a province of the federal government. Notwithstanding, the Arizona authorities ignored the law with respect to crimes committed by Indians while outside the boundaries of their reservations. Thus, between 1864 and 1886, the de facto jurisdiction of the authorities with respect to Indians was as follows: (1) the federal government prosecuted crimes committed on a reservation by non-Indians; (2) the Territory prosecuted crimes committed off a reservation by both Indians and non- Indians; and (3) tribal authorities adjudicated crimes committed on a reservation involving Indians only. This informal and extra-legal jurisdictional arrangement changed in 1886, when Congress, in response to a U.S. Supreme Court decision in “Crow Dog’s Case,”6 enacted the Major Crimes Act, which gave territorial courts jurisdiction over murder and six other major crimes7 committed by Indians whether on or off the reservation. The Major Crimes Act foreshadowed the assimilation of Indians into the criminal justice system in the Arizona Territory.

The First Jurists

In March, 1863 President Lincoln appointed John N. Goodwin as Chief Justice of the Supreme Court of the Arizona Territory and William T. Howell and Joseph P. Allyn as Associate Justices. Goodwin never served in this capacity, as he was shortly thereafter appointed by Lincoln to be Governor of the Territory when the President’s initial appointee, John A. Gurley of Ohio, died before assuming office. Thereafter, Lincoln appointed William F. Turner as Chief Justice. Thus, the first Territorial Supreme Court was comprised of Turner, Howell and Allyn.

As previously noted Howell was assigned to the First District (Tucson). Chief Justice Turner occupied the bench at Prescott (Third District) and Allyn held court at La Paz (Second District). Turner served the Territory as Chief Justice for nearly four years. The tenures of Howell and Allyn were short lived8 and neither of the latter named justices served long enough to sit as a member of the Territorial Supreme Court.9

Short tenures as Territorial Supreme Court Justices were not uncommon, as the Justices were presidential appointees and thus generally came from parts of the country that were invariably more civilized and genteel than the rugged Arizona frontier. Simply moving about the Territory during the 1800’s was very difficult and often dangerous. Moreover, these appointees were generally unfamiliar with the customs and people of the West. Finally, as political appointees they were subject to the political fortunes of the appointing authorities in Washington. By and large, however, they served the Territory competently.

The Prescott courtroom of Associate Justice Charles C. W. French on December 3, 1883 may have been cause for at least one Territorial judge to question his dedication to the bench. On that date French was trying a case involving a dispute over water rights between two Kirkland Valley ranchers, Mrs. Kelsey and Patrick McAteer. In the course of the cross-examination of a witness, the lawyers representing the opposing parties got into a heated argument which escalated into a general melee with ink stands, chairs and other articles being tossed about at will. Not to be outdone, McAteer pulled a large knife and sought out Kelsey’s son-in-law, Beach, as his victim. Beach drew his pistol and shot McAteer. A second shot by Beach knocked out a large kerosene lamp suspended over the judge’s bench and put the courtroom in complete darkness. The gunshots apparently were the catalyst for reasoned judgment to set in, and the carnage was ended. When all was said and done, McAteer was dead but nor before he had seriously wounded a witness with his knife and caused minor injuries to others, including the Court Clerk, William O. “Buckey” O’Neill. Judge French, who after the melee was ended was observed well ensconced under some protective chairs, was later to remark that “Had it not been for my coolness and presence of mind on that occasion, more people would have been killed or injured on that tragic night.”10

The Enforcers

As previously noted, our constitutional form of government reserved the primary policing power within the country to the states, and by extension, the territories. It follows, therefore, that the most important law enforcement officials in the Arizona Territory during the 19th Century were the County Sheriff and the District Attorney, both of whom were elected by the voters. This, of course runs counter to the common perception that the United States Marshal was the primary lawman of the “Old West.” In actuality, because of their limited jurisdiction, the U.S. Marshal and the U.S. Attorney played rather insignificant lawenforcement roles in the Arizona Territory during the 19th Century. 11

The County Sheriff and his appointed deputies and other staff were responsible for maintaining the peace, investigating crimes, apprehending and arresting lawbreakers, performing executions, serving summons and warrants, summoning jurors for both petit and grand juries and serving as the County Jailer. The Sheriff also served as the Tax Collector for the County. The District Attorney presented cases to grand juries, drew up indictments as required by grand jury action, prosecuted all criminal cases within his assigned judicial district and represented the county or counties within his district in civil actions brought by or against it or them.12

The Sheriff and District Attorney were poorly paid throughout the 19th Century and relied primarily on fees paid for specified services for their income. Often, they had additionalsources of income from other employment in both the private and public sector. For example, District Attorneys generally had a concurrent private legal practice and the County Sheriff may have owned a ranch or a retail establishment. Often, they had positions of federal employment as well. It was not uncommon for the District Attorney to serve concurrently as an Assistant United States Attorney or the County Sheriff to be crossdeputized as an Assistant United States Marshal, each within their respective judicial districts. This arrangement not only provided additional income to these public servants, but also enabled them to enforce federal laws as well.

The Sheriff’s responsibilities as the county jailer presented special problems, particularly during the early Territorial years. The early jails were either non-existent or very primitive, often being nothing more than a frame shack with or without bars. Thus, breakouts of incarcerated persons serving sentences or awaiting trial or the gallows, were common. Protecting prisoners against vigilantes bound and determined to serve the sentence of “Judge Lynch” also presented special problems for County Sheriffs, as many of the persons who participated in these extra-legal activities were respected members of the community and voters as well.13 Over time, the construction of more secure facilities eased some of these conditions. Yavapai County, for instance, was in the forefront in this respect, having constructed a two-story building on Cortez Street in 1867 to accommodate the sheriff’s office, the jail and the county courtroom, which also doubled as a community meeting hall.

The least desirable task that frontier sheriffs of the Arizona Territory had to perform was to carry out the execution of persons sentenced to death by hanging. Even the most hardened lawmen often sought to delegate that unpleasant duty to others. For example, in 1898 Yavapai County Sheriff George Ruffner, who was reputed to be a tough and effective lawman, sought out a surrogate executor to preside over the hanging of Fleming Parker, a convicted murderer. Parker, however, would have none of it as he wanted a “real man” to hang him. Ultimately, Ruffner complied with Parker’s request and officiated at his execution.14

The popular characterization of the frontier lawman as the steely-eyed gunslinger that faced down the bad guys on a dusty street at high noon is largely a fiction created by the 20th Century media. For the most part, the sheriffs who served the Arizona Territory were ordinary folks who did their best to keep the peace and carry out the other duties of their office without resort to the gun. They did it by the force of the inherent authority of their office,15 the judicious utilization of citizen posses16 and the support of the people who voted them into (or out of) office. That is not to say that Arizona did not have some lawmen who were noted gunmen and manhunters. Commodore Perry Owens (Apache County, 1887-1888) and John Slaughter (Cochise County, (1887-1890) were known for their dexterity with weapons but, more importantly, their willingness to use them. 17 But, for every Owens and Slaughter, there many others sheriffs during the Territorial years that quietly went about the business of enforcing the law without resort to the “law of the gun.”

In the early Territorial years any white male who was at least 21 years of age and of “good moral character” could be admitted to the practice of law in the Supreme and District Courts of the Arizona Territory. These requirements or, more accurately, the lack thereof, led to the admission of many men who were unqualified or ill-suited for the practice of law. It was not until 1901 that the Code required applicants for admission to the practice of law to have “a good knowledge of legal principles, rules of pleading and practice, rules of evidence and the ethics of the profession of the law.”

When the Territorial Supreme Court met for the very first time in Prescott on December 26, 1864 it admitted seven men to practice before it and the District Court, including Bashford, the co-drafter of the Howell Code, and John Howard, who was to practice law in Prescott for many years and serve as that town’s mayor for six terms. Soon thereafter, these initial admittees were joined by seven others, including E. W. Wells, a prominent lawyer and jurist who served as an Associate Justice of the Supreme Court in the early 1890’s. By 1895, there were 195 practicing lawyers in the Arizona Territory. 18

It was not until 1892, five years after the male-only limitation was lifted by the 14th Legislative Assembly that an Arizona court first admitted a female lawyer to practice. Sarah Herring, the schoolteacher daughter of Tombstone lawyer Colonel William Herring, was admitted to practice in the First Judicial District in November, 1892 and shortly thereafter (January 12, 1893) to the Territorial Supreme Court. Herring, who adopted her husband’s surname following her marriage to Thomas Sorin in 1898, primarily practiced mining law, and she is credited with being the first female lawyer to argue a case unassisted and unaccompanied by a male counsel before the United States Supreme Court.19

While much has been said about the enforcement role of the lawyers and lawmen, the practice of law in the Arizona Territory was not, of course, confined to the prosecution of crimes against the public. Even at a time when a mere handshake was often enough to cement a deal between two contracting parties, lawyers performed many of the functions then as they do today, including the representation of clients at trial in civil matters. As the Territory developed, lawyers developed practices around major economic events, e.g., mining, farming and ranching, transportation and, of course, water rights.

Lawyers also practiced criminal defense law, representing persons accused of committing acts proscribed by the criminal codes of the Territory and the United States. For example, Tucson attorney James E. McCaffry was appointed to represent Delores Moore, who was accused of murdering her husband in December, 1868. Moore was convicted and sentenced to be hanged. Her sentence was later commuted to life by Acting Governor Carter.

Bias and prejudice were no strangers to the application of the law during the Territorial period. The commutation of Delores Moore’s sentence was not an aberration. While women could not vote, serve on juries or practice law in Arizona during all or most of the 19th Century, there was a definite bias against executing those of the fairer sex. Despite numerous convictions of females for murder, not a single woman was legally executed during the Territorial period. Sarah Herring Soring, Arizona Territory’s First Female Lawyer 13

Camp Grant Massacre

The tension that existed between the Anglos and the Apaches in the latter part of the 19th Century also resulted in an uneven application of the law. On April 30, 1871, Sidney R. De- Long and William S. Oury, both of Tucson, led a vigilante force of Anglos, Mexicans and Papago Indians20 in a raid on a band of Aravaipa Apaches who, with explicit permission of the Camp Grant commanding officer, were peacefully residing nearby, killing well over 100 defenseless Apaches, all but a few of which were women and children. While the vigilante action was supported by many in Arizona, Easterners were outraged and President Grant demanded that Governor Safford bring the perpetrators to trial. DeLong, Oury and most of their vigilantes were indicted,21 charged with murder under federal law and tried before a jury in federal district court in December, 1871. The defense, represented by James E. McCaffry, the lawyer who had represented Delores Moore in her murder trial (see above), and Granville Oury, the younger brother of the defendant, did not deny that the defendants had killed the Apaches; rather, they defended on the basis that the defendants’ actions were defensive as they and others had been subject to persistent depredations by the Apaches. The judge who presided over the trial, Associate Justice John Titus, instructed the jury to consider the attack “justifiable and defensible” if the evidence showed that Anglo, Mexican and Papago residents had been persistently subject to depredations by the Apaches and further that persons who had not been adequately protected from Apache spoliation and assaults by the U.S. Government had “a right to protect themselves and employ a force large enough for that purpose.” Predictably, DeLong, Oury22 and the others were acquitted, a devastating loss for federal law enforcement in the Arizona Territory. It took the jury all of 19 minutes to reach its verdict. 23

Conclusion

Notwithstanding the inevitable existence of bias and prejudice in the administration of justice in 19th Century Arizona Territory, by and large the legal system was reasonably efficient. Territorial and federal law enforcement officials – lawmen and lawyers – did their jobs, keeping the peace, apprehending criminals and bringing them to justice in accordance with a legal code specifically adapted to the unique requirements of a new territory. Lawyers in civil practice represented clients in matters of probate, real estate, mining, ranching, transportation, water irrigation and the like, and by their efforts influenced the establishment of rules of law that helped to civilize and stabilize an evolving and developing territory and prepare it for statehood. The jurists of the time, while federal appointees who generally did not serve long tenures, served competently and dispensed justice in both criminal and civil matters effectively in accordance with the laws of the Territory. Certainly, there were lawbreakers who went unpunished and persons who were not brought to task for violating the personal and property rights of others, but such was the case elsewhere in the county then as it is today. Arizona was far from the lawless image of Western lore.

BIBLIOGRAPHY

The principal resources for materials relating to the political and legal development of the Arizona Territory and lawyers and jurists were two books by James M. Murphy: Laws, Courts and Lawyers, Through the Years in Arizona (Tucson, University Press, 1970) and Spanish Legal Heritage (Tucson, Arizona Pioneers’ Historical Society, 1966); Jay J. Wagoner’s Arizona Territory 1863-1912, A Political History (Tucson, University of Arizona Press, 1970); John Goff’s The Supreme Court Justices, 1863-1912, Volume 1 of Arizona Territorial Officials, Black Mountain Press, Cave Creek, Arizona, 1975; and a dissertation written by Paul Thomas Hietter in connection with his pursuit of a degree of Doctor of Philosophy at Arizona State University in 1999, entitled Lawyers, Guns and Money: The Evolution of Crime and Criminal Justice in Arizona Territory. The principal resource materials for the lawmen of the Territory and their roles with respect to the enforcement of territorial and federal law were two books written by Larry D. Ball: Desert Lawmen, The High Sheriffs of New Mexico and Arizona, 1846-1912 (Albuquerque, University of New Mexico Press, 1992 and The United States Marshals of New Mexico & Arizona Territories 1846-1912 (Albuquerque, University of New Mexico Press, 1978). The principal resource for biographic materials was the Archives of the Sharlot Hall Museum at Prescott. Other sources and suggested readings are referenced in the endnotes that follow. 

LAW AND JUSTICE ENDNOTES

1 Of course, the common law – whether English or U.S. – was subject to modification by legislative enactment.

2 The exception dealt with slavery. The Organic Act for the Arizona Territory provided that neither slavery nor involuntary servitude shall be lawful in the Territory.

3 The First Legislative Assembly was comprised of two bodies, a nine member Council and an eighteen member House of Representatives. The Organic Act of the Territory of Arizona, 1863.

4 The Organic Act of New Mexico (1850) which was incorporated by reference into the Organic Act of Arizona. See Compiled Laws of the Territory of Arizona, 1871. The Act also provided for justice of the peace and probate courts within each judicial district, the former to handle minor criminal and civil matters and the latter to handles estates of deceased persons and maintain records of titles to real estate.

5 In 1895, Congress added a fourth justice to the Territorial Court and provided that any three justices would constitute a quorum of the Supreme Court. Thereafter, a justice who presided over a case at the trial court level was precluded from participating as a member of the Court on an appeal therefrom unless one of the other justices was disqualified for other reasons.

6 Crow Dog murdered Spotted Tail, a Sioux chief. Crow Dog was arrested by the tribal police. The matter was settled by the families of Crow Dog and Spotted Tail in accordance with tribal custom for $600, eight horses and a blanket. Bowing to public outrage, Crow Dog was arrested and tried in a federal court in the Dakota Territory, convicted and sentenced to be hanged. The conviction was reversed by the U.S. Supreme Court in 1883 on the basis that federal courts had no jurisdiction over crimes committed on reservations where both parties 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 larceny.

8 Howell’s brief period in AT is discussed above. He was replaced by Harry T. Backus. Allyn ran unsuccessfully for Congress in 1865 and was also unsuccessful in his efforts to be appointed to the governorship shortly thereafter. He was replaced as Associate Justice by Harley H. Cartter in late 1865. Allyn is best known for his writings of his travels in the Arizona Territory in the 1860’s. (See The Arizona of Joseph Pratt Allyn, Letters From a Pioneer Judge, Observations and Travels, 1863- 1865, edited by John Nicholson. Tucson, University of Arizona Press, 1974.)

9 The Territorial Supreme Court convened for the first time on December 26, 1865 at Prescott in the Council’s chambers. Chief Justice Turner and Associate Justices Cartter and Backus were the members of the Court.

10 The quote attributed to Justice French was reported in James Murphy’s book entitled Laws, Courts and Lawyers, Through the Years in Arizona, Tucson, University of Arizona Press, 1970 at page 64. For other accounts of this event, see Walker, Dale L. Roughrider, Buckey O’Neill of Arizona, Lincoln, University of Nebraska Press, 1975 and Lauer, Charles D. Arrows, Bullets and Saddlesores, Golden West publishers, 2003.

11 As towns developed in the Territory, many employed local lawmen, known as town marshals, constables or policemen, each of whom performed important law enforcement roles within their respective jurisdictions..

12 The office of the District Attorney was created by the Third Legislative Assembly in 1866; prior thereto the Territorial Attorney General performed these functions.

13 Statistics of lynchings in the Arizona Territory are imperfect; however, one source identified 70 persons who were lynched between 1864 and 1912. Ball, Desert Lawmen, Appendix C, pages 381-82.

14 Ball, Desert Lawmen at 153.

15 As an interesting side note, while many lawmen purchased badges or shields of their office from drummers or salesmen who traveled about the West, others fashioned their badges from tin cans; thus, the term “tin star”. Ball, Desert Lawmen at 22.

16 The 1789 federal Judiciary Act adopted the English common law concept of the “posse comitautas” (power of the county) and authorized law enforcement officials to require citizens to serve on posses. Territorial sheriffs had similar rights.

17 Both Owens and Slaughter entered office on law and order campaigns, promising to clean up their respective counties of the rampart lawlessness that existed in Apache and Cochise counties at the time. Both men were known as “quick guns” (as contrasted with “quick draw”), meaning they were willing to shoot sooner than those who stood in opposition to them. Slaughter, for example, was said to have cautioned his deputies that in making an arrest of a “bad sort” his advice was to shoot first and then yell “throw up your hands.” Ball, Desert Lawmen at 193.

18 The territorial authorities apparently paid little heed to their Spanish heritage. In 1520, Hernan Cortez issued a decree prohibiting “attorneys and men learned in the law from setting foot in the country [New Spain] on the ground that experience had shown they would be sure by their evil practices 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’s First Woman Attorney”, Danielle Janitch, Stanford Law School (2001).

20 There were only 6 Anglos in the Oury/DeLong force, which included 48 Mexicans and 92 Papagos.

21 C.W.C. Rowell, the district attorney, encountered considerable difficulty obtaining indictments and had to resort to making a deal with his friend Andrew Cargill who was a member of the federal Grand Jury. Rowell told Cargill that if indictments did not issue, President Grant would declare martial law and try the perpetrators by a military trial. Neither Roswell nor Cargill believed that the Oury/DeLong group would be convicted by a jury comprised of Tucsonians; therefore, the deal was struck to indict and submit to a trial before a jury of their peers rather than one comprised of military officers. Ultimately, the grand jury which, incidentally, included pioneer Charles Trumbell Hayden, issued 103 indictment; however, since many of the participants were respected Tucsonans, most of the indictments were issued under “aliases”. Scheille at 174-176.

22 Oury was elected Sheriff of Pima County and served that office from 1872 to 1877; he also served concurrently as Deputy United States Marshal. (Ball, United States Marshals at 68; Ball, Desert Lawmen at 351)

23 The quotes attributed to Justice Titus were reported in Wagoner’s Arizona Territory, 1863-1912 at 131. For a more complete description of the Camp Grant Massacre and the subsequent trial, see Vast Domain of Blood by Don Scheillie, Tower Publications, 1971.