by Fred Veil

The common perception that the Arizona Territory of the 19th Century existed largely in a state of lawlessness is a myth promulgated primarily by 20th Century Hollywood, television, and dime novels. While the territory undoubtedly had its share of criminal activity and civil disputes common to the western frontier, it also had a functioning legal system that appears to have dealt quite adequately with the legal issues of the day.

When the United States assumed sovereignty over Arizona in 1848 and thereafter created the Territory of New Mexico, which then included Arizona, that Territory remained covered by the laws that had governed it when it was part of Mexico. 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with the provisions of this act, are, hereby extended to and continued in force in the said Territory of Arizona, until repealed or amended by future legislation…" Thus, the law that first applied to Arizona as a separate territory was essentially the same as that by which it was covered when it was part of the New Mexico Territory.

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 Importantly, the ‘Code’ repealed the laws and customs of Spain, Mexico and New Mexico and specifically adopted the common law of the United States. Notwithstanding, the ‘Code’ adopted by the legislature was in many respects strongly influenced by the territory’s strong Spanish heritage. For example, the legislator’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.

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, just as a state or territory is subject to both federal and state or territorial law, the judiciary within the state or territory is comprised of both federal and state or territorial legal systems. Such was the case in Arizona Territory in 1864.

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 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." Thus, three federal judicial districts were likewise 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. The three justices also functioned as a Supreme Court to hear appeals from both the Federal and Territorial Courts, which meant that a justice often heard an appeal of a case he had presided over as a trial judge.

The judicial districts authorized by the Organic Act were established by Governor Goodwin in April, 1864. The First Judicial District was situated in Tucson, the second at La Paz and third at Prescott. Chief Justice William F. Turner occupied the bench at Prescott and Associate Justices Howell and Joseph P. Allyn held court at Tucson and La Paz, respectively. Turner served the Arizona Territory as Chief Justice for nearly four years. The tenures of Howell and Allyn were short lived. Neither of the latter named justices served long enough to sit as a member of the Territorial Supreme Court.

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 Arizona 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 United States’ 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 law-enforcement roles in the Arizona Territory during the 19th Century.

The county sheriff, 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.

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. 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. Over time, the construction of more secure facilities ameliorated 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. In 1882, a new courthouse was constructed on its present site on the plaza. This courthouse was razed in 1915 to make room for the courthouse which stands to this day on that site.

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, the judicious utilization of citizen posses 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. But, for every Owens and Slaughter, there were many other sheriffs during the territorial years that quietly went about the business of enforcing the law without resorting 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 applicants 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 in 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. By 1895, there were 195 practicing lawyers in the Arizona Territory, including many men of prominence such as Marcus Aurelius Smith, Granville Oury, William Herring, James McCaffrey and Ben Goodrich.

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 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.

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.

In summary, the legal system in 19th Century Arizona Territory 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.

(Fred Veil, a semi-retired lawyer, is a member of the Prescott Corral of the Westerners and served as that organization’s sheriff in 2004. This article is a summary of a presentation he will make at the Third Annual Western History Symposium that will be held at the Sharlot Hall Museum on September 30th. The Symposium is co-sponsored by the Prescott Corral and the museum and is open to the public free of charge. For more details, call the museum at 445-3122.)

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This 2-story building was built on Cortez Street in 1867, to serve as the Courthouse of the 3rd Judicial District of the Arizona Territory established in 1864. It served also as the sheriff’s office, jail and county courtroom (which also doubled as a community-meeting hall) until 1882.

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Built in 1882, this Courthouse on the present day plaza served the territory until it was razed in 1915 to make room for the current Yavapai County Courthouse, begun in 1916 and completed in 1918.

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Demolition of Prescott’s second courthouse in 1915 on the plaza.

by Parker Anderson

When the Elks Opera House opened its doors on February 20, 1905, the first show was a Spanish Catalan play called, "Marta of the Lowlands," by Angel Guimera. The subject matter of the play, the exploitation of a woman enslaved by a land baron, was strong stuff for 1905 – an era that was rife with more lightweight entertainment on the stage.

Live theater was undergoing a transition at this time. Playwrights (particularly those in Europe) were becoming increasingly interested in tackling serious, important subjects on the stage. Unfortunately, many of them lacked the ability to write realistic dialogue. This resulted in serious dramas written (and therefore performed) in melodramatic fashion, with broad, overdone verbiage and acting.

Florence Roberts, who performed ‘Marta’ at the Elks, was regarded in her lifetime as one of the stage’s finest actresses, but who knows? By today’s standards, she may well have been a considerable ham.

Theater has long had its ups and downs in terms of content. Shakespeare’s histories and tragedies are very heavy going, and down to this day, readers (particularly parents, with the intention of exposing their children to nothing more than culture) are often shocked when they discover the strong violence and sexual content in Shakespeare’s writings.

After Shakespeare had passed from the scene, theater simmered down considerably. This was particularly true in 19th century American theater, which contented itself with bright comedies, melodramas and lightweight historical pieces. This may have been partly due to the times, as well as censorship restrictions in many areas. In 1900, New York City authorities closed down a Broadway show, Clyde Fitch’s "Sappho," and arrested the entire cast and crew (including famed actress Olga Nethersole) on morals charges, simply because the play contained a scene wherein a man carries a woman up a flight of stairs and presumably off to…well, the audience could imagine.

The late 19th century saw a rebellion among playwrights, particularly in Europe. The trail for realistic theater was blazed by Henrik Ibsen from Norway and Britain’s George Bernard Shaw. Ibsen stirred worldwide controversy (and a devoted following) by writing plays about syphilis ("Ghosts") as well as a sympathetic portrayal of a woman leaving her husband ("A Doll’s House"). In Great Britain, Shaw regularly ran afoul of British censors, and his play that tried to put a human face on prostitutes, "Mrs. Warrne’s Profession," was banned by the censor and unperformed for decades. Likewise, Oscar Wilde wrote a starkly realistic and grisly dramatization of the story of "Salome," only to have it banned in Britain and not performed in his lifetime.

Other overseas playwrights picked up the slack, such as Angel Guimera and Gabrielle D’Annunzio, with their serious, controversial and searing dramas.

American theater, however, remained fairly lightweight (with a few exceptions), probably due to our then-repressed culture as well as American censorship. This started to change in the 1940s, when some mild profanity started appearing in Broadway plays, and change came full force in the 1950s, with the gritty plays of Arthur Miller and Tennessee Williams. At Last, playwrights had found the ability to write realistic dialogue to go with their hard-hitting stories. To this day, audiences cannot sit through such legendary plays as Miller’s "Death of a Salesman" and Williams’ "The Glass Menagerie" without being affected.

In the late 1960s, as the last of the censorship laws were falling, the floodgates opened to excess in the movies, and the stage followed suit. With this newfound freedom of expression taking the stage to do whatever, Broadway was scandalized by shows with an all-nude cast (Oh, Calcutta!") and gay themes ("The Boys in the Band"). These excesses burned themselves out in short order, but the die was cast. Playwrights and theater producers could now write and perform whatever they wanted. This has resulted in some powerful theater, often stirring controversy to this day.

In 2002, Edward Albee’s play, "The Goat, Or Who is Sylvia?," stirred controversy and much gnashing of teeth for dealing with the subject of bestiality, but it went on to win the Tony Award for Best Play. Eve Ensler’s, "The Vagina Monologues," has taken the world by storm with its series of raw, outrageous, profane and totally compelling women’s empowerment speeches. Millions of women have embraced this show – they can’t all be wrong. Prescott College performs "The Vagina Monologues" once a year in the Elks Opera House. I have attended twice in the last few years and, while I enjoyed the show tremendously, I couldn’t help but wonder what the people who built the Elks would say if they could see such entertainment on that stage!

Sharlot Hall Museum’s Blue Rose Theater will be tackling a once-taboo subject when it presents Terry Earp’s "Menopause – The Comedy!" on September 22, 23, 29 and 30, and October 1, 2006. Call the Museum for ticket information at 445-3122.

(Parker Anderson is an active member of Sharlot Hall Museum’s Blue Rose Theater.)

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The Sharlot Hall Blue Rose Theater will present "Menopause – The Comedy!" September 22, 23, 29, 30 and October 1st.

by T. Stone

If you walk around downtown Prescott, you might have certainly taken notice of all the references there are to cowboy culture. A statue of a cowboy resting beneath his horse decorates the Courthouse Square. A statue of a broncobuster is in front of City Hall. Many restaurants and real estate offices have framed pictures of cowboys in their various establishments. On Whiskey Row you can buy cowboy hats and John Wayne toilet paper. If you were here during the Frontier Days Parade in July, you witnessed dozens of participants decked out in the over-ripe habiliments of cowboy couture. All of this affectation might lead the casual observer to believe that, historically, early Prescott had something to do with cattle, spurs, and pointy-toed boots.

But, the truth of the matter is, that for the first seventy-five years of Prescott’s history, cowboys had virtually nothing to do with this town. If you could travel back in time to the period between 1864 and the 1930s, you would have rarely even seen a cowboy on the streets of Prescott. Back then, you wouldn’t be talking to your friends about branding, rustling, or how pretty are the eye lashes of a cow. The primary topic of those early days was one thing only: mining. Prescott was founded by miners, occupied by merchants who catered to miners, and was the focus of a vast mining community that occupied almost every hillside and stream in a hundred mile radius. Almost no one cared a whit about cattle!

I know this must come as a shock to many of you. Mining isn’t nearly as sexy as exuding rugged individualism from a saddle while rounding up little dogies. Nobody wants to wear a miner’s lamp on his head in place of a Stetson. And who has ever heard of a miner poet? (Well, Rod McKuen would be considered a minor poet, but that’s a whole other topic.) Regardless, our collective assumptions of what Prescott looked like over a hundred years ago will be found to be mostly a product of imagination created by Hollywood and refined by land developers. This mistaken view of the past explains a lot to me. For instance, it explains why we seem to be indifferent about the impact housing development and modern ranching has had on the environment. We are so in love with playing cowboy that we subconsciously create an artificial world to accommodate our fantasies. Reality suffers in the mean time.

One place that you can go to get the unvarnished lowdown on Prescott history is Citizens’ Cemetery over on Sheldon Street. Moldering beneath the arsenic-tainted earth are the people who lived and worked around this town in those early years. There are around 850 grave markers left at Citizens’, an excellent representation of the people who first settled here. Close study of those decedents will bring you a deeper and more authentic understanding of our local history.

Consider tuberculosis. Tuberculosis was the number-one killer of those interred at Citizens’ Cemetery. Why is that? Because, in those days when the "white plague" was a common affliction, people who suffered from it would often go to cooler, less humid regions to relieve their condition. Prescott was an important destination for those with tuberculosis.

Consider who lived in Prescott at the time: Anglo-Americans, Italians, Danes, the Irish, Germans, African-Americans, Chinese, the English and Mexicans. Although Prescott prided itself as "the town of white people," suggesting some kind of racial homogeneity, it was probably not uncommon to hear many languages and accented English as you walked its dirt avenues.

Finally, consider the occupations. Death records and newspaper articles reveal that those men who are buried in Citizens’ were predominantly miners, making a living by opening holes in the surrounding landscape. Of all of the hundreds of graves still remaining, only one person was listed in the death records as a "cowboy," and that was Jose Montano, a Mexican, who died from pneumonia in 1901. (A case could be made for Fay Harbeson, being a latter-day cowboy. A horse rolled over him as he was chasing cattle in 1933, the approximate beginning of the "cowboy era" in Prescott.)

Every town in the world wants a history that reflects modern ideals and mores. History cannot comply with our wishes. Early Prescott was not a land of enchantment, populated by church-going cowboys and cowgirls, bringing sunshine into the lives of the less fortunate. It was a hardscrabble existence on a raw frontier. There were more sheep than cattle in the early days. There were more saloons and brothels, by far, than churches. And, in lieu of shootouts in the streets, there were plenty of suicides and mining accidents. There was little love for fellow human beings; a strong anti-Indian, anti-Chinese, anti-Mexican streak ran through our origins. If you want to understand who we are today, you can study who we were just a dozen decades ago. Technology aside, our fears and concerns have stayed pretty much the same. We’ve just learned to shade them differently.

Perhaps it is our restless nature that keeps us at odds with our past. Our lives propel us forward, leaving little time to honestly reflect on what happened yesterday or, especially, what happened a century ago. For this reason, author Gore Vidal calls us the "United States of Amnesia." Building our culture and economy on chimeric notions will, in the long run, be our undoing as a nation. Our chances for a progressive future might be greatly enhanced if we were to turn a more critical and realistic eye to our past.

(T. Stone, author of ‘Grave History: A Guidebook to Citizens’ Cemetery, Prescott, Arizona,’ will be giving a lecture on the book and the cemetery on Thursday, September 7, 2006, at 2 p.m. at Sharlot Hall Museum. Admission is free.)

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Unidentified miners in the Bradshaw Mountains, c. 1890.

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A group of miners at the Blue Bird Mining Camp, c. 1890s, with their Chinese cook in the doorway.

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A group of miners, c.1870, holding candles in a shored-up mine.