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with the provisions of this act, are, hereby extended to and continued in force in the said Territory of Arizona, until repealed or amended by future legislation..."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 Importantly, the 'Code' repealed the laws and customs of Spain, Mexico and New Mexico and specifically adopted the common law of the United States.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.) 

 

Sharlot Hall Museum Photograph Call Number:(buh7026pc)
Reuse only by permission.
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. 

 

Sharlot Hall Museum Photograph Call Number:(bug503pa)
Reuse only by permission.
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. 

 

Sharlot Hall Museum Photograph Call Number:(bug519pa)
Reuse only by permission.
Demolition of Prescott's second courthouse in 1915 on the plaza.