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Law As A Record of History

By Tom Van Flein

On a day-to-day basis, we don't often think that a particular matter we may be working on has any real historical value. The overwhelming majority of time this will remain true. It is the rare case that hints at its possible historical significance at the time the case is pending -- the Exxon Valdez litigation, McDowell v. State or Ravin v. State, for example. Occasionally, however, both civil and criminal proceedings reflect not only the immediate legal issues that are facing a court at that time, but the briefs, pleadings and decisions filed as part of a case form an interesting historical record. The value of some of these cases pertains more to the social milieu rather than its legal analysis.

All of us are aware to some extent that Alaska had some seedy characters in its past (not just politicians either). Can anyone question the significance that Fairbanks was founded by E.T. Barnette, who, according to the chamber of commerce, was thought to have left town with embezzled bank funds thereby dooming "E.T. Barnette to be remembered only with hatred by the people of the town he founded." Or Judge Arthur Noyes (referred to in some records as "an alcoholic, incompetent [political] crony"), sent to Nome in 1900 to bring the law, but instead implemented a scheme to take over various mining claims. It has been noted that "[i]f two deputy U.S. marshals from California had not arrived on October 15, 1900 with an arrest warrant, he might have succeeded."

A case from that time period, Jackson v. U S, 102 F. 473 (9th Cir. 1900), paints an interesting historical record. The judge, using the legal vernacular and other common word usage for the time, has left us with a contemporaneous record of certain events that depict life in early Alaska more vividly than a photograph could.

The case arose out of the death of the infamous bandit "Soapy Smith" in Skagway. The court sets out the following in its statement of facts: "The plaintiff in error was . . . convicted in the district court of the district of Alaska for the crime of an assault with a dangerous weapon, and sentenced to 10 years at hard labor . . . The jurisdiction of the court is attacked, and the punishment prescribed claimed to be cruel and inhuman. . . ." Getting 10 years of hard labor for pointing a gun doesn't sound like a lawless town (although if this occurred today the felony murder rule might have been invoked since two people died by an accomplice).

The court notes that "in the spring of 1898 one Jeff Smith, who was commonly known, and is designated in the testimony, as 'Soapy Smith,' a man of alleged desperate character, located in Skaguay, Alaska, and there conducted a saloon and gambling house, and had gathered around him a half-dozen or more men of like character, as his associates, who are referred to in the testimony as belonging to 'Smith's gang,' and by his general conduct had made himself obnoxious to the law-abiding citizens of the town . . . a reign of terror existed." Today we might ponder what being a "desperate character" really means although we have no problem understanding how someone can make "himself obnoxious" to others (just ask my friends and family).
The crime occurred on July 8, 1898, "about half past 9 o'clock p.m., the citizens of the town assembled at Sylvester's wharf . . . to guard the approaches to the wharf. The record shows that soon thereafter Smith and his associates, including the plaintiff in error, Jackson, arrived at the approach to the wharf, where they came to a halt, and then started forward--Smith being in the lead, with a Winchester rifle in his hand, cursing and swearing, using violent and obscene language--and ordered the assembled citizens to get off the wharf. Smith continued right along through the center of the wharf . . . going by Tanner and Murphy, and when he got opposite Reed he wheeled around and struck at Reed with his gun. Shooting immediately occurred between Reed and Smith, resulting in the immediate death of Smith, and mortally wounding Reed, who subsequently died. . . ." I highlighted the reference to the Winchester rifle for reasons I will explain in a moment.

The question was raised whether the defendant could get a fair trial in light of his notorious reputation. The court reasoned that "if the facts were such as to show that the defendant was associated with men of low, depraved, vicious, or criminal tastes or habits, and was acting with them in such a manner as tended to prejudice his case before the jury, that was his misfortune, and not any fault or error on the part of the court." Talk about being judged by the company you keep. But the court was mindful of ensuring a fair trial. "It was, of course, the special duty of the court, which it seems to have faithfully observed throughout the whole trial, to see that the defendant, however low and degraded he or his associates might have been, was not to be prejudiced by the admission of any improper evidence. " Jackson, 102 F. at 475-77.

The court ultimately rejected all 18 points of error and affirmed the conviction and sentence. Seemingly minor details in the statement of facts, such as a reference to Smith's Winchester, apparently take on added importance a century later. If only the court could have foreseen that people in the future would not be content with simply a reference to the brand of rifle, but its caliber as well, this decision could have helped today.

The magazine Wild West published a letter from Jeff Smith, who states that he is the "great-grandson of Jefferson 'Soapy' Smith'" in response to an article by Gary Blackwood called "A Tale of Two Alaskan Cities" in the August 1997 issue. In their colloquy, each historian claims, in essence, that their sources are reliable.

Soapy Smith's great-grandson wrote that "Frank Reid was not a leader. He was a self-appointed city engineer and a bartender at the Klondike saloon owned by Soapy. Reid was not a leading voice for "civilized Skagway" and did not found the Committee of 101. He did not call a meeting of the vigilantes. In fact, he was only a guard, while the real leaders met to decide Soapy's fate. As far as my research shows, Soapy never owned a derringer. In the fight that ended his life, he had on him a Model 1892 Winchester .44-40 rifle and a double-action Colt Army revolver... Soapy was a modern man who wanted the best in life. The Derringer, and a single-action Colt on display at Skagway, Alaska, are items of the Old West, but Soapy was a man of the coming new century..."

Author Gary Blackwood responded to Smith's letter, first pointing out the credibility of his sources: "My main source of information about Soapy Smith was the work of Pierre Berton, who interviewed eyewitnesses from the gold rush era, including four men who were present at Soapy's demise...[Berton] was careful to cross-check all statements against accounts written at the time the events took place. Berton states that, before confronting the vigilante committee, Soapy "slipped a Derringer into his sleeve, pocketed a .45 Colt revolver, and slung a Winchester .30-30 over his shoulder."

The court decision does not mention whether the Winchester was a .44-40 or a .30-30, referring only to a "Winchester rifle." Perhaps the evidence tag can settle the debate. Nor is there any mention of a Derringer. Now these details seem significant, at least if one seeks to display "the gun" involved in the mayhem. The mayhem itself, however, and the death of two people, almost seems lost on the current historians and the focus on the weaponry used—an oversight not committed by the courts then or now.

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