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The Nevada Territorial Supreme Court: a Transitional Influence from Frontier Lawlessness to Statehood

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The Nevada Territorial Supreme Court: a Transitional Influence from Frontier Lawlessness to Statehood University of Nevada, Reno The Nevada Territorial Supreme Court: A Transitional Influence From Frontier Lawlessness to Statehood A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Judicial Studies By David A. Hardy Dr. James T. Richardson Dissertation Advisor May 2015 © by David A. Hardy 2015 All Rights Reserved University of Nevada, Reno We recommended that the dissertation prepared under our supervision by DAVID A. HARDY entitled The Nevada Territorial Supreme Court: A Transitional Influence From Frontier Lawlessness to Statehood be accepted in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Chairman James T. Richardson, Ph.D., J.D., Advisor Honorable Richard H. Bryan, L.L.B., Committee Member Professor Michael W. Bowers, Ph.D., Committee Member Professor Robert P. Morin, Ph.D., J.D., Committee Member Professor Robert E. Dickens, Ph.D., Graduate School Representative David W. Zeh, Ph.D., Dean, Graduate School May, 2015 i Abstract Nevada statehood was a bi-lateral event that required approval from both the federal government and the territorial residents. It has been extensively studied from a federal perspective, but no scholar has fully considered how the territorial judiciary influenced the residents’ approval of statehood. The judiciary’s role is particularly relevant when explaining why territorial residents rejected statehood by a four-to-one margin only to authorize statehood a mere eight months later by an eight-to-one margin. This paper will demonstrate the Nevada Territorial Supreme Court (NTSC) is an unrecognized but powerful influence in the statehood vote of September 1864. It begins with an examination of judicial systems in the Nevada area under the Utah Territory. It next examines the challenges of a remote, spiritual authority when profound mineral wealth was discovered during the spring of 1859, and suggests the absence of legal order and judicial normalcy compelled the creation of the Nevada Territory. The NTSC exploded into existence in 1861 but then imploded under the weight of its own work during the summer of 1864. Great fortunes were in dispute and the three territorial judges were unable to manage the voluminous litigation. (In 1864, more than 400 lawsuits were on file in Storey County but only three were tried to a jury—and only one trial resulted in a jury verdict). Judicial processes became corrupted and productive mining and related capital infusions came to a halt. After a protracted battle between the newspapers, and a growing chorus of public discontent, the embattled judges resigned from office a mere 16 days before residents voted on statehood. Thus, voters knew the alternatives well: a rejection of statehood would maintain an impotent judiciary and perpetuate the mining recession, whereas the approval of statehood would result in popularly elected judges who were accountable to the citizens they served. This paper examines the details of the first and second constitutional conventions through a judicial lens, the primitive judicial system in place during territorial years, and the role of the press in fomenting public discontent with the courts. This paper also examines the decisional work of the NTSC, which has never been published or otherwise folded into the historical record of Nevada. While some court records exist at the Nevada State Archives, the court’s official opinions have been lost. Based upon extensive research into the newspapers of the time, this paper includes a significant portion of the NTSC’s decisional history. Finally, this paper introduces the judicial personalities and suggests, contrary to other scholarship, that systemic corruption is more easily alleged than proven. ii TABLE OF CONTENTS CHAPTERS: 1. Introduction .........................................................................................................1 2. Permanent Settlers Arrive in Nevada: 1851 ........................................................6 3. The Peculiar Institution of Mormonism ..............................................................9 4. Continuing Political and Judicial Uncertainty: 1852-58 ...................................14 5. The Storm Before the Mining Tsunami: 1859 .................................................23 6. Discovery of the Comstock Lode ......................................................................29 7. 1860: Law or Anarchy—Order or Confusion? ..................................................35 8. Territory Established: March 31, 1861 ..............................................................41 9. Comstock Litigation ..........................................................................................48 10. First Constitutional Convention and Electoral Defeat: 1863-64 .......................56 11. Chollar v. Potosi: A Case Study of Judicial Impropriety ..................................67 12. Second Constitutional Convention: 1864 ..........................................................75 13. The Summer of Newspaper Discontent: 1864 ..................................................82 14. Resignation of Territorial Supreme Court Justices and Statehood: August 22, 1864; October 31, 1864 ................................................................100 15. Nevada Territorial Supreme Court Decisions .................................................106 16. Nevada Area Decisions in the Utah Reports and Appeals to the United States Supreme Court .................................................................................................178 17. Conclusion and Post-Script Regarding Judicial Corruption ............................181 18. Acknowledgements .........................................................................................189 TABLES: 1. AVAILABILITY OF OPINIONS .............................................................................112 2. ALLOCATION OF CRIMINAL SUBJECT AREAS ....................................................112 3. ALLOCATION OF CIVIL SUBJECT AREAS ...........................................................113 4. NATURE OF DISPOSITIONS BY NTSC ................................................................113 SELECTED BIBLIOGRAPHY ........................................................................................192 iii APPENDICES: A. Nevada Territorial Supreme Court Decisions .................................................198 B. Newspaper Articles: 1859-1860 ......................................................................366 C. Newspaper Articles: 1861-1864 ......................................................................447 D. Judiciary Related Quotations from the 1864 Constitutional Convention ........631 E. Russell McDonald’s Territorial Judge Biographies ........................................650 1 Chapter 1 Introduction As in the lives of all great men and the histories of all great nations, there occur a multitude of events which are omitted by historians, yet are of vast importance as influencing, controlling, and accounting for the more startling and salient points in those histories and biographies: so there are in the history of the litigation of this Territory many facts which the future compilers of that history would fail to find upon the record. The private memoranda of the judges, the litigants, the attorneys, the court-brokers and other contemporaneous personages must be patiently and sagaciously examined, compared, and put in connected and readable shape before the world will be fully posted as to “Proceedings in Civil cases in the Courts of Justice in the Territory of Nevada,” as the same were conducted in the “dark ages” of Silverland.1 The story of how early territorial courts influenced Nevada statehood has never been fully written. Nevada political scientist Michael Bowers observed: “I have seen firsthand the dearth of scholarly research and publication on [the topics of law and courts in Nevada], for example, there is no published history of the Nevada Supreme Court . .”2 Professor Bowers further lamented that “scholarship in this area has long been woefully lacking is apparent to even the most casual observer.”3 The story is unique and interesting because of several events: 1) the influence of a remote and peculiar theocratic government 500 miles to the east, 2) the discovery of great mineral wealth in an area without government infrastructure, judicial normalcy, or settled law, 3) the electoral rejection and then approval of statehood within eight months in 1864, 4) the influence of sensational and inflammatory newspaper articles castigating judicial officers and court proceedings during the second constitutional convention and immediately before the statehood vote, 5) the impotence of law and resignation of all Nevada Territorial Supreme Court Justices immediately before the statehood vote, and 6) the loss of all original decisions issued by the Nevada Territorial Supreme Court during 1 Unpublished Chapters, Gold Hill Evening News, August 3, 1864. 2 Michael W. Bowers, “Foreword,” Nevada Historical Quarterly, 43, no. 1 (2000): 3. 3 Ibid. 2 its existence between 1861 and 1864. The territorial courts also influenced the content of the constitution, legislation, and judicial ethics jurisprudence in Nevada. This work is inspired by the Nevada Supreme Court’s reference in a 1992 judicial discipline decision that “Nevadans have historically manifested a pronounced sensitivity to potential abuses of judicial power.”4 The court then wrote: Scholars of this state’s
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