Early history of the Black Hills courts This history of the Black Hills Judicial system appears on pages 1123-1126 of "History of South Dakota" by Doane Robinson, Vol. II (1904) and was scanned, OCRed and edited by Maurice Krueger, mkrueger@iw.net. This file may be freely copied by individuals and non-profit organizations for their private use. Any other use, including publication, storage in a retrieval system, or transmission by electronic, mechanical, or other means requires the written approval of the file's author. COURTS AND BAR OF THE BLACK HILLS. BY GRANVILLE G. BENNETT, [The following interesting sketch was scheduled to appear among the other contributed articles in Volume I but was not received until after the completion of that volume.—ED.] The treaty with the Sioux Indians, ceding the Black Hills, was made in the summer of 1876 and ratified by the senate on the 27th day of February, 1877. The territorial legislature which convened in January, 1877, anticipated the ratification of that treaty, and, realizing the urgent need of civil administration in that new, busy and seething mining country, passed an act to take effect immediately upon the ratification of the treaty, consolidating the first judicial district with the second, of which Chief Justice Peter C. Shannon was then the presiding judge, and constituting the Black Hills the first district, and transferring Judge Granville G. Bennett from the old to the new first district. Judge Bennett reached Deadwood with his clerk, General A. R. Z. Dawson, on the 28th day of April, 1877, and immediately entered upon the task of organizing the courts. The Black Hills were then indeed "the forest primeval." The cruel axe of the woodman had just begun its work of slaughter and denudation, which in twenty-seven years has left bare and forbidding large areas once beautiful with their heavy growth of majestic and stately pines. Game was abundant. Deer, antelope, bear, mountain lion, wild cat and elk made the Hills the hunter's paradise. There were no roads, except of nature's own contruction; no bridges; means of travel were primitive, either on foot, horseback or in a dead ox wagon. The population was at that time about twelve thousand. Of this number, ten thousand were in Deadwood, Lead City, Central City and adjacent gulches. In 1876 Custer was the populous camp, containing, as was claimed, not less than six thousand people, but the discovery of placer gold on Deadwood creek, in the northern hills, had well-nigh depopulated it, and at the time of which we are writing it had very much the appearance of a "deserted village," but without a Goldsmith to link its name with the immortality of song. Perhaps the white monuments in the valley of the Little Big Horn will be more enduring as they tell a story more tragic and pathetic than any that might be woven in a poet's brain. Most of the early settlers were mere fortune hunters, with no thought of becoming permanent dwellers or establishing homes, so took but little interest in the organization of society, of churches or schools. The mining states and territories of the west had the much larger representation, and quite a majority of these belonged to the class of placer miners, who as a general thing are improvident and nomadic. The greater portion of the population had entered the Hills in 1876 under the ban of the United States government, against its protest, and in the face of its active opposition. Being then Indian country, the territorial government was powerless to give them aid or extend to them the protection of the law and the courts Feeling the necessity for some sort of judicial administration, to hold the unruly element in check, punish petty crimes, and settle chattel property rights, these pioneers of 1876 organized in Custer and Deadwood provisional courts, with judges and ministerial officers. Questions relating to mining and the right of possession of mining ground were settled by miners' meetings, as provided by the rules and regulations adopted by the miners in the several mining districts. The decisions of these courts and miners' meetings were very generally respected as binding and final. Minor offenses were readily disposed of, but when it came to capital or other felonious crimes these hardy frontiersmen preferred giving the culprit his liberty on condition that he would leave the camp,—as in the case of McCall, who murdered Wild Bill,—rather than assume the responsibility of inflicting the death penalty, and the execution of a pententiary sentence being impossible. There is no question but what these temporary governmental expedients were productive of good. They exercised a wholesome restraint over thc lawless element, engendered and kept alive respect for law and authority, prevented serious personal encounters and bloodshed over property rights, and a resort to the questionable methods of vigilantes and the barbarities of lynch law. Such were the existing conditions when the jurisdiction of the territorial government was extended over the Black Hills country. The counties of Lawrence, Pennington and Custer were organized and the machinery of the law put into operation. There was some funny work done and attempted by the respective boards of county commissioners of these counties, in the temporary location of the county seats. That of Custer was fixed at a little placer mining camp, called Hayward, which afterwards proved to be in Pennington county, and its subsequent removal to Custer City involved some citizens in rather unpleasant experiences in the courts. The commissioners of Pennington county laid out a town away up in the hills on Spring creek, where there were a few miners' cabins, called it Sheridan, and made it the county seat. An effort was made to locate the county seat of Lawrence county at Crook City, a small hamlet seven miles north east of Deadwood, but this failed and Deadwood was selected. Prior to statehood, the following judges occupied the bench of the Black Hills district: Granville G. Bennett, Gideon C. Moody, William E. Church and Charles M. Thomas. Upon the admission of the state, the seventh and eighth circuits were created. The seventh embraced the counties of Pennington, Custer and Fall River and some adjacent unorganized counties, Lawrence, Meade and Butte counties, with certain adjoining unorganized territory, constituted the eighth circuit. The seventh has had three judges, viz: John W. Nowland, William Garchler and Levi McGee. Judge Nowland died during his term of office. The eighth has had the following: Charles M. Thomas, Adoniram J. Plowman, Joseph B. Moore, Frank J. Washabaugh and William G. Rice, the latter filling by appointment the unexpired term of Judge Washabaugh. Of the judges who have presided over the courts of the Black Hills, three are dead, Judges Thomas, Moody and Washabaugh. The first term of United States court was convened at Sheridan on the 4th Tuesday of May, 1877. There were no civil cases for trial, and no parties held to answer to the grand jury. So no juries were empaneled, no attorneys were present except Mr. Frank J. Washabaugh, who had been appointed and qualified as district attorney for Pennington county. There was no building in which to hold court. and a miner's cabin, with dirt floor and a dirt roof, was used as a hall of justice, and during a heavy rainstorm the descending water and mud made things very uncomfortable. The session was of short duration and no business was transacted. The next term of court at Sheridan was held in September, same year. It was unique in many respects. The little cluster of miners' cabins was still all there was of the town, known as the county seat. The county commissioners had erected a one-story log house to serve as a court house. It, too, had a dirt floor and roof. Places were cut out for doorways and windows, but that was all; no doors were hung and no sash or glass; all was open. There was organized the first United States grand jury in the Hills. Many indictments were found and a number of convictions followed, most of them for violations of the internal revenue laws. The United States government was represented by the late John R Gamble. Quite a number of attorneys were present. but few of whom are still in this jurisdiction. The court, attorneys, jurors and witnesses had to make the trip either from Deadwood or Rapid City by private conveyances, taking with them bedding, provisions and camp equipage and providing for themselves during the term. A number encamped across the road opposite the court house and fared sumptuously on bacon, slap-jacks and canned goods, and when court was not in session found amusement in shooting the judge's "bench" full of holes, though the open doorway. They were a jolly lot of fellows, and enjoyed their outing. This was the last term of court held at Sheridan, and the last of the town. The county seat was removed to Rapid City, where it should have been located in the first place, and the old site of the prospective city of Sheridan passed to the ownership of a prosperous ranchman, and became one of the most productive farms on upper Spring creek. The first term of court held in Deadwood, the fore part of May, 1877, was in many respects rather remarkable. There was no civil calendar, and criminal business occupied the time of the court. The grand jury returned fifteen indictments, and but one out of that number was acquitted, fourteen being sentenced to the penitentiary. The crimes for which these persons were indicted and punished ranged all the way from manslaughter to assaults with deadly weapons. Shortly before the arrival of the judge in the Hills, two homicides had been committed, in a quarrel over the possession of certain town lots. Certain citizens regarding the conditions as rather unbearable, organized a vigilance committee and proposed to inaugurate extreme measures. One of its members stated that the judge was on his way in and would open court very soon, and suggested that the committee wait and see if he should be able to enforce the law and punish crime. This was acceded to, and this committee ceased to exist after this first term of the court. It can be said to its credit, that during all the period of its wild and reckless history there never was a case of lynching in Deadwood. And since that first term of court life and property have been as safe in Lawrence county as in any county in the west. In this first effort to establish law and order in this new mining camp, the judge was most efficiently assisted and supported by three excellent officers, Sheriff Seth Bullock, District Attorney John H. Barnes, and Clerk A. R. Z. Dawson. They were among the first settlers, knew the people well, were familiar with conditions and were able to give valuable information and advice. At this first term seventy or more attorneys were admitted to the practice of the law, representing almost every western state and territory. Of all these, but four remain in the Hills. Many have crossed the mystic river, while the remaining survivors are scattered far and wide. The following year some able men were added, and the Lawrence county bar soon acquired the reputation of being the strongest in the then territory, which it has in a measure maintained, although having lost by death and removal a number of its recognized leaders and talented members. Opportunity is a great factor in the lives of most men, and this factor has been potent with the lawyers of the Black- Hills. For many years the litigation, especially in Lawrence county, was extensive and very important. Property rights of great value being frequently involved, and the cases closely and hard fought, could not, than otherwise, develop a keen, logical and thoroughly equipped class of attorneys. The early strenuous legal contests in the Black Hills courts were cases involving rights to mining ground. These were frequently complicated by the carelessness with which mining claims had been located and sometimes by the utter disregard of the rights of others by subsequent locators. There were other elements entering into these contests, which made the duties of the presiding judge difficult and perplexing. The members of the bar, as has been already stated, came from almost every mining state and territory of the west. Each brought with him his own ideas and interpretation of the practice and procedure in the jurisdiction from which he had come, and insisted upon their adoption and observance, regardless of the provisions of the code of civil procedure of this territory. In fact there was but one lawyer among the sixty or seventy who had a copy of the code. There were then (1877) no accessible text-books and scarcely no adjudicated cases on mines and mining law. One authority only could be produced attempting to construe the mining acts of congress, and that was the Golden Fleece case, decided by the supreme court of Nevada a short time previous. Then there were a few attorneys, wholly devoid of any sense of moral or legal responsibility, who would resort to any methods, however questionable, for the accomplishment of their purposes. Under all these adverse conditions it is not at all strange that the pathway of the presiding judge was rather rough, at least not strewn with flowers. Some of the earlier cases, while protracted and fought with stubborn ability, proved disastrous to all litigant parties concerned. The first case involving mining rights, being that of the Hidden Treasure Mining Company vs. The Aurora Mining Company, was instituted immediately upon the organization of the courts in Lawrence county. It was conducted on part of counsel for defendant with unpardonable bitterness and malice, the effects of which were apparent for a long time. When the case was concluded it was found that the ground in dispute was worthless, and neither company survived the disastrous legal battle. Of the counsel engaged in this somewhat celebrated case, but one survives, Judge Kingsley, who is now a resident of Denver, Colorado. Of a similar nature was the Sitting Bull case, but without any unpleasantness. It was long-drawn-out and very expensive, at the end both parties were bankrupt, and the ground in dispute has never since been worked and is regarded as of but little if any value. The attorneys for defendant in this case, to-wit: Messrs. McLaughlin, Steele, Moody and Skinner, are all dead, while the attorneys for plaintiff still survive, Messrs. Van Cise and Kingsley being in Denver and Messrs. John R. Wilson and Bennett still practicing in Deadwood. The judge who presided at that trial, Hon. W. E. Church, is now residing in Chicago. A very important case more recently tried in the federal court was that of the Buxston Mining Company vs. the Golden Reward Mining Company, in which the plaintiff obtained a judgment of over sixty thousand dollars. The plaintiff in this case was represented by Messrs. Martin & Mason, with whom was associated Granville G. Bennett, and the defendants by Messrs. W. R. Steele, G. C. Moody and W. L. McLaughlin. There never was a case more closely tried, every inch being tenaciously contested, and although the trial occupied about four weeks, it was conducted in the most amicable spirit, and without the least friction or unpleasantness, in this presenting a marked contrast to the methods and spirit employed and displayed by certain attorneys in the conduct of the first civil action tried and determined in the courts of the Black Hills. I have referred to these cases simply as samples of the heavy and important litigation in which the Lawrence county bar has been engaged during more than a quarter of a century. It will be noticed how the Lawrence county bar has suffered from deaths and removals during its comparatively short existence. But no man was ever yet so great or important that he could not be spared from the world's activities,. and these places made vacant are being rapidly filled by the oncoming aspirants for curialistic honors, who give good promise of maintaining the enviable reputation which this bar has enjoyed in the past. The Lawrence county bar has not been overlooked in the distribution of political honors. It has furnished a delegate in congress, Granville G. Bennett, a United States senator, Gideon C. Moody, a member of congress, Eben W. Martin, a member of the state's supreme court, Dighton Carson, besides many minor positions. The bars of the other Black Hills counties have many able lawyers, and have not been so changeable in their membership. They have not had the important and extensive litigation that Lawrence has had, hence have not had the same opportunities and experiences as the attorneys. in the northern Hills. The tempestuous days are past. Mining ground is being rapidly patented, which settles very generally mining titles, and does away with what has been the most important branch of the law in the Hills. Things are fast assuming the steady character of the older communities and litigation is becoming commonplace. But those stirring times will long be remembered by those who were actors in their exciting and busy scenes.