By Jennifer Uhlarik
If you’re anything like me, watching western movies as a kid led to the belief that the western territories and states were a completely lawless land. Sure, I knew there were lawmen—sheriffs, marshals, and the like—and even a plethora of bounty hunters. Western movies, shows, and books were filled with those. But so many westerns, whether on the big or small screen, or in print, conveyed the idea that things were dealt with by vigilante justice rather than in an actual court of law. People took matters in their own hands, rather than seeking out a lawyer, a judge, or a court, right? Turns out, nothing was further from the truth.
In researching for my newest release, Love and Order: A Three-Part Old West Romantic Mystery, I had the pleasure of ferreting out whether there was the court system in Colorado Territory in the 1800s and how such an animal might have operated in that time and place.
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| Judge Roy Bean, a Justice of the Peace, dubbed himself the "Only law west of the Pecos." |
So, the court system in the western territories was typically set up with a Territorial Supreme Court, comprised of three justices who were each appointed by the President of the United States. These justices were not only the highest judges in the territory—but often, they were the only judges. (Yes, there might have been Justices of the Peace who were in charge of hearing small local matters, but these JP’s were not typically part of the Territorial Court system that would try cases dealing with the Territorial laws. An example would be Judge Roy Bean).
Each territory was segmented into three parts, and each Supreme Court Justice became the traveling judge who oversaw cases in one of those territorial districts. Each judge had a U.S. Marshal working closely with him to schedule trials, who acted as bailiff during trials, and helped with other court matters. If a lawman or prosecutor wished to bring a case to trial, he would contact the Marshal, get the case on the judge’s docket, and then would have to wait until the judge and his traveling court continent made it through the circuit to the nearest town to hear that case.
In most places, there wasn’t a dedicated courthouse in which to host a trial. So where did the proceedings happen? Anywhere they could find a place. Court cases might have been held in an open field if the weather permitted, in a schoolhouse, a church, a meeting hall, or a saloon. And the cases were often seen as a great source of entertainment, so people would often take off work to witness the spectacle. And a spectacle it often was!
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| An Old West Saloon |
Though the judges had garnered the attention of the President to receive the appointment as territorial justice, many of them saw this as a punishment. They viewed it not as an honor, but as being banished to the uncivilized territories. Thus, many of them took a very lackadaisical attitude toward their jobs. Judges were sometimes known to come into court drunk (or to become so as the day went on—especially when the venue was a saloon). They also often lent only half an ear to the proceedings while they trimmed their nails or took care of other personal grooming tasks. And often, lots of shenanigans went on because the judge would allow the audience too much power. For instance, in one case I read about, held in a local saloon, many of the townsfolk who were in attendance would holler out, asking for a recess, so that they could get a refill on their alcoholic beverages—and the judge permitted it. I’m sure you can imagine the wild and wooly spectacle such a trial might have been.
Certainly, some of the judges would’ve taken their jobs seriously, but many didn’t treat it with the respect it deserved. So if the outcome of a trial was in question, the defendants and their attorneys could always ask for an appeal to the Supreme Court. But wait…! Keep in mind that the judge who just heard the case was one of the three Justices of the Territorial Supreme Court, and an appeal required two of the three Justices to agree to hear the case. If the original judge ruled no (which they often did), and he could convince a second Justice to deny the request, then the appeal would go nowhere. The initial judgment stood.
I mentioned earlier about the court contingent that the judges traveled with. Interestingly, each territorial judge had a whole group of people they would bring along on their circuit—a slate of prosecutors, defense attorneys, a court reporter, investigators, and more. Everyone the judge would need to try a case was in that company, except for the defendants and witnesses. Now, that’s not to say that every trial lawyer traveled with the judge around the territory. In fact, one of the many interesting facts I discovered through my research was that the topmost profession in the 1800s western territories was that of attorney. So not all attorneys could travel with the itinerant court system. In fact, attorneys were so prevalent in that day that most of them had to have a second job to pay the bills, which tied many of them to their local towns. They might also own a saloon (great if the court used their venue for its cases!), ran cattle or horses on a ranch, or operated a local store. Some were miners, land surveyors, or had some other kind of business to help make ends meet. Really, the only attorneys who made a living from their law practice were the ones who were part of the traveling court system.
By Jonathunder -
Own work, CC BY-SA 4.0,
https://commons.wikimedia.org/w/index.php?curid=3899115
So if a defendant didn’t have a private attorney, a traveling defense attorney would be assigned his case. Same with the prosecutors. If a local prosecutor wasn’t bringing the case, a traveling one was assigned. These attorneys could prepare for their cases before arriving in the town where the trail was to take place by writing letters, sending telegrams, reading up on any reports or testimony that had been gathered (if there was any), and could break away from the traveling company to go and meet with a defendant or other witnesses in between other cases they were assigned. But I’m sure you can imagine, expecting a traveling attorney to mount an airtight defense under such circumstances could be a risky thing. So it was in the defendant’s interest to retain his own attorney so that he could expect a better defense. (Surprise, surprise…not a lot has changed in that aspect between the courts of old and courts of today).
(If you’re interested in learning more about how one became an attorney in the Old West, I wrote a post on the topic several years ago. Please find it here.)
Lastly, as I mentioned earlier, when the court rolled into town, it was usually quite a spectacle. Often, there was as much excitement for the court proceedings as there might be for a traveling circus, medicine show, or other form of entertainment. And sometimes, there’d be some very interesting happenings in the proceedings. In one case I read about, a widow sat quietly through the trial of her husband’s killer, waited for the verdict, and then calmly left her seat, approached the defendant, and feet from the judge, leveled her dead husband’s pistol at the killer’s belly. If my memory serves, not only the U.S. Marshal bailiff drew down on her, but so did the judge, the defense attorney, and several who’d come to watch the proceedings.
So yes, there was a court system in the western territories of the 1800s. But I should add one other fact. The movies, TV shows, and novels I took in during my teens did have it partially right. Because the traveling courts could take months to reach a town and try a case, it often did lead to the prevalence of vigilante groups bringing justice outside of the courts—especially since jails of the Old West tended to be rather “leaky.” (That’s a tease for next month’s topic…)
It's Your Turn:
Were you aware that there was a robust court system in the western territories of the 1800s? What did you find surprising about how these courts operated?
Jennifer Uhlarik discovered western novels at twelve when she swiped the only “horse” book from her brother’s bookshelf. Across the next decade, she devoured westerns and fell in love with the genre. While attaining a B.A. in writing from the University of Tampa, she began penning her own story of the Old West. She has finaled in and won numerous writing competitions and appeared on various best-seller lists. Besides writing, she’s been a business owner, a schoolteacher, a marketing director, a historical researcher, a publisher, and a full-time homemaker. She lives near Tampa, Florida, with her husband and fur children.
Available now
Wanted:
Family, Love, and Justice
One Old West Mystery Solved Throughout Three Short Romantic Stories
Separated as children when they were adopted out to different families from an orphan train, the Braddock siblings have each grown up and taken on various jobs within law enforcement and criminal justice.
Youngest child, Callie, has pushed past her insecurities to pursue a career as a Pinkerton agent. Middle child, Andi, has spent years studying law under her adoptive father’s tutelage. And the eldest and only son, Rion, is a rough-and-tumble bounty hunter.
When the hunt for a serial killer with a long history of murders reunites the brother and sisters in Cambria Springs, Colorado, they find themselves not only in a fight for justice, but also a fight to keep their newly reunited family intact. How will they navigate these challenges when further complicated by unexpected romances?
