residence addresses, as an aid to the incitement ;
and the Supreme Court was threatened with like
appalling calamities if it did not yield to the
demand of the ])rosecution and reverse the Court
of Appeal. All this was puzzling and myste-
rious at the time. Not the abuse of the higher
courts ; it was well understood that this abuse
was designed to bend them by terror and coercion
to the prosecutors' will. But why the sud-
den change of front? Why first acquiescence
and then denunciation? If the prosecution were
"stung," why so long before the yelp of pain?
An explanation is necessary, and the explana-
tion necessitates reversion to the situation that
preceded the breaking of the immunity contract.
That situation was one of extreme embarrassment
to the regenerators. They did not dare carry out
their contract with Ruef. Public sentiment, con-
trary to their expectations, had not softened to-
ward their impatient penitent. Thumbs were
down, mercy was not in the public eye. So Judge
Dunne went on postponing Ruef's sentence. He
postponed it so often that the Legislature has
since deemed it advisable to prevent a recur-
rence of this particular kind of procrastination.
The delaying of the sentence only postponed the
evil day. Some time something would have to be
done, and already the papers were demanding
the reason for the contin'iances. Ruef, more-



152 THE REGENERATORS

over, was growing importunate and was insist-
ing that all indictments against him should be
dismissed and that he should be discharged with-
out sentence from his plea of guilty.

To the troubled prosecutors the decision of
the Court of Appeal afforded a happy escape.
That decision declared that the Schmitz indict-
ment was radically defective and charged no
crime. It being the identical indictment to
which Ruef had pleaded guilty, it necessarily
followed that it charged no crime against him.
All then that the regenerators had to do to rid
themselves of their difficulties was to bow to the
decision of the Court of Appeal, which meant
that they would be freed from the embarrass-
ment of the Ruef plea of guilty. There could be
no judgment pronounced in that case. This
most perplexing trouble being thus eliminated, it
remained only to have the trial judges dismiss
the other indictments.

With the arrangement of these matters Dis-
trict Attorney Langdon immediately busied him-
self, and thus it was that during the first few
days he did not believe an application would be
made to the Supreme Court, but thought the
decision of the Court of Appeal would be ac-
cepted as final.

But here an insurmountable difficulty arose
from an entirely unexpected quarter. Never as
thoroughly broken as his team-mate Judge Law-
lor, Judge Dunne suddenly refused to pull at



THE SCHMITZ CASE 153

the crack of the prosecution's whip, or in the
lanofuasfe of Mr. Henev, he refused "to come
through." With most stubborn recalcitrance he
decHned to dismiss the indictments against Ruef
pending in his court, and thus, again in the
language of Mr. Heney, the prosecutors "were
in a hole."

Exposure of their secret dealings with Ruef
was imminent. The public mind must not be
allowed to ponder the pertinent queries of hostile
critics calculated to compel disclosure of the real
state of affairs. There must be a diversion ; pub-
lic attention must be directed elsewhere. The
decisioti of the Court of Appeal was no longer
necessary or needed. What better than to assail
the higher courts? The more venomous the ac-
cusations the more certain would the regenerators
be to direct attention from their embarrassment.
And so to the accompaniment of a rain of stink-
pots from their press, the prosecutors' petition
for rehearing of the Schmitz case was handed to
the Supreme Court.

In the petition for rehearing, as has been said,
none of the iniquities of the trial was defended,
nor was a review asked of any of the Court of
Appeal's animadversions upon them. The Su-
preme Court was asked to consider but two prop-
ositions : 1, a motion to dismiss the appeal; 2, the
sufficiency of the indictment. As illustrating
the willingness of the prosecution to resort to
the "detested technicalities of the law" to serve



154 THE REGENERATORS

their own ends, it may be noted that both the
Court of Appeal and the Supreme Court decided
that the prosecution's objections to giving Schmitz
a hearing- upon the merits of his appeal were
utterly frivolous and untenable.

The Court of Appeal had declared that the in-
dictment was radically defective, and this deter-
mination the Supreme Court was asked to re-
view. The- determination itself was not, as the
prosecution sought to have believed, a shattering
bolt from the untroubled blue. All the objec-
tions to their indictment had long ago been
presented to their consideration, first, by de-
murrer in the trial court, when it would have
been the easiest possible matter to save all ques-
tion by presenting new indictments by their
grand jury which still remained in session, and,
second, under writs of habeas corpus sued out
by Schmitz and Ruef in the Supreme Court,
where every objection to the indictments was
fully argued. The Supreme Court did not hold
the indictments good, but refused to pass upon
the objections to them, saying they were not re-
viewable under habeas corpus, and could only
come before the court on appeal in case of con-
viction. So the prosecutors were fully advised,
and the remedy was ready to their hand ; but
they preferred to limp along with these defective
indictments, doubtless for the reason already
given, that originally they cared nothing for
them and never expected anything to grow out
of them.



THE SCHMITZ CASE 155

The Supreme Court afifirmed the decision of
the Court of Appeal, extending the citations and
elaborating and reasoning of the latter court.
Here were two courts comprising ten judges un-
animously of one opinion. In any other com-
munity than California, and in California at any
other time than this, when the Graft Prosecution
had it by the throat, the standing, learning and
dignity of those ten men would have rendered
utterly impossible the recognition of the clangor
of a Heney, the threat of a Bulletin, or the scur-
rility of a Johnson. Nor as it was would their
uproar have amounted to anything had they not
cunningly appealed to the ignorance and credulity
of the multitude, employing for public deception
a specious bit of misrepresentation.

If proof was necessary of the danger of the
recall, of the importance of safeguarding the
people against their susceptibility to the persua-
sions of the unscrupulous, what occurred in Cali-
fornia after the Schmitz decisions would certainly
be admissible. Every pro-prosecution organ as-
serted that the upper courts pronounced the
Schmitz indictment defective because it failed to
charge something which was a matter of com-
mon knowledge — that Schmitz was mayor. How
utterly false the statement was will be disclosed
to anyone taking the trouble to read the two
decisions.

Once before in California a learned and upright
justice of the Supreme bench (now an honored



156 THE REGENERATORS

member of the Federal judiciary) in discussing
the measure of damages to parents for the death
of an infant child, and expounding that these
damages were founded on the estimated pecun-
iary loss to the parents of the services of the
minor, declared that in the case of a poor
family, the minor children frequently contributed
to the family support, while in the case of a
wealthy family, the children were frequently a
bill of expense. Mere platitudes, I grant you,
yet in the heat of an election which soon fol-
lowed, a hostile newspaper catchily declared that
this justice had decided "that the life of a poor
man's son was not worth as much as the life of
a rich man's son." The story swept the State
like wild fire. No denial or explanation by the
bar of the State, no proof that the statement
charged was the exact opposite of the statement
made, had any effect ; the lying catch phrase was
too happy, and it wrought the justice's defeat.

As absolutely false and nearly as effective was
the catch phrase launched against the higher
courts after the Schmitz decision. As I have
said, a reading of the two opinions will disclose
the truth — that neither decision is based upon the
absence of any allegation, and that the absence
alleged is not even considered. The courts were
not discussing what the indictment did not con-
tain, but what it did contain.

Just what did the courts decide? There is
nothing metaphysical or obscure in the decisions



THE SCHMITZ CASE 157

— a running layman can understand them if only
he will read them ; but not one man in ten thou-
sand who dogmatically discusses and criticises a
judicial opinion, ever thinks it worth his while
to read it that he may inform himself of what
he is talking- about. We don't pretend to be
great doctors, or engineers, or architects, or gen-
erals. But one and all we are great jurists, not
in the making, but in perfection. I, at least,
have read the decisions. This is what they
declare. There is no crime in this State except
it be an act denounced by the penal laws. Ex-
tortion under force of fear or threat is defined
as follows : "Fear such as will constitute extor-
tion may be induced by a threat to do an nnlazv-
ful injury to the property of another." The ex-
tortion charged was by threat ; but the threat was
not to do an unlawful injury to property, since,
conceding that a prospective license to sell liquor
may be regarded as property, the threat was not
to do an unlaivful injury to that or any other
property of the restaurateurs. For anyone may
freely go before the commissioners and use
his influence to prevent the issuance of a
license, and this is done every day. Nor can the
evil motive afifect the act so as to make it a crime.
This has long since been decided in California,
where it was said in consonance with a great
weight of authority that "the malicious use of
lawful means to induce a lawful act does not
make the resulting injury unlawful." (Boyson v.



158 THE REGENERATORS

Thorne, 98 Cal. 578). Now it was not charged
that unlawful means were used. If it were meant
to charge the use of unlawful means they should
have been specifically set out ; for in the ab-
sence of averment the unlawful means could not
be assumed. The Court of Appeal uses a simple
and illuminating illustration : a man threatens
his neighbors that he is going to build a pviblic
stable upon his land. The effect will be to in-
jure their property. His motive is evil and
malicious. His threat is designed to extort
money from them, and they, buy the security of
their property by paying him. the amount he de-
mands to forego his plan. Morally he is an ex-
tortionist, legally he has committed no crime.
Even the layman may see that if the motive of
an act is to determine its criminality the law
must first so declare, but it has not yet done so.

This is the substance of the harmonious deci-
sions of the two courts upon the indictment.
They contain no strictures upon the failure of
the prosecution to charge the official capacity of
Schmitz — though w^hy in heaven's name the
learned pleaders of the Graft Prosecution should
so carefully have refrained from mentioning the
fact that he was mayor — must forever remain
an unsolved mystery. The court's statement
merely is that the indictment fails to charge a
threat to do an unlawful injury to property,
which threat of unlawful injury or injury by un-
lawful means is necessary to the indictment.



THE SCHxMITZ CASE 159

And now we come to the last episode. In the
midst of the roar of machine-made abuse which
the prosecution's press continued to utter follow-
ing the Supreme Court decision, the Sacramento
Bee tendered a Grecian invitation to the Chief
Justice to write an "explanation" of the decision
so that "the man in the street might understand
it." Single minded and sincere, not appreciat-
ing that the denunciation of his court was fab-
ricated and the misunderstanding designed, the
Chief Justice wrote to the Bee a public letter
expressing his individual views. It fell, as it was
probably meant to fall, upon deaf ears and un-
heeding minds. But in that letter, for the first
time, the Chief Justice pointing out the defects
of the indictment and how they could be rem-
edied, said that if it had been charged that
Schmitz \va.s mayor, and Ruef a political boss of
great influence, and that they threatened to use
unlawfully their position and power, the defect
would have been cured, but in the absence of
such averment judicial notice could not be taken
of these matters.

Here for the first time was any color given to
the lying statements of the press ; not by the
court, for its decision had been rendered and
had become final: but by a single justice ex-
pressing his own views. Of course if the indict-
ment charged unlawful means, it would cure the
defect whether the unlawful means were charged
against Schmitz as a citizen or as an official.



160 THE REGENERATORS

This, however, was promptly put in the bact-
ground, and again the cry was raised that the
Supreme Court had declared the indictment bad
because it did not allege that Schmitz was mayor.

Into this melee, at the behest of Heney, rushes
the intrepid Professor Wigmore, and with up-
raised sword assaults the astonished Chief Jus-
tice. This is his slashing stroke : "Courts should
take notice of anything that is notorious ; if then
a man named Schmitz was notoriously mayor
of San Francisco and a man named Ruef was
notoriously its political boss at the time in ques-
tion, that is all that any court needs." There-
fore, all the courts should have taken judicial
notice of these facts and thus have cured the
defective indictment. Mr. Wigmore is con-
strained to admit that "there are dozens of other
supreme justices who would decide and are de-
ciding just such points in just the same way as
the California case," but they are disposed of
with a wave of the pen as non-progressive.

I write as a historian and not as a partisan of
either side in this memorable strife. But it must
occur even to the unthinking that Professor
Wigmore's letter is not all-satisfying. While it is
easy for a private lawyer to invent desirable
changes in the rules of law or evidence, a
judge on the bench, under his oath of office, is
denied that pleasure and may only construe the
rules of evidence laid down for his guidance by
the legislature. Although it may be an admirable



THE SCHMITZ CASE 161

innovation in the law of evidence for the courts
to take judicial notice of anything notorious,
the courts of CaHfornia can do so only under
legislative mandate and not under Professor
Wigmore's. The legislature has explicitly de-
scribed the things and all the things of which the
courts of this State may take judicial notice,
and "things notorious" are not among them.
And perhaps this obedience to the Constitution
and their oaths, rather than their dull inertia
against the uplift of progressive law not found in
the statutes, explains the attitude of the dozens
of supreme justices in other States — justices
who, while willing to see in Professor Wigmore's
closet-made laws the lamp of divine guidance,
still feel bound to steer by the rush-light of their
constitutional obligations.

Professor Wigmore was not left to battle
alone with his windmills. To his aid came
James M. Kerr, formerly of an Ohio institution
not less important for educational purposes
than the one in which Professor Wigmore
labors as an instructor. Kerr is now engaged
in annotating the codes of California, and by rea-
son of his past experience his knowledge of crim-
inal law is not to be despised. Mr. Kerr, with
a delicacy to be expected, put his criticism of
the decision in the Penal Code he was annotat-
ing. "It is thought," he says, "that the decision
viola.es well recognized rules of statutory con-
struction, and well settled rules of criminal



162 THE REGENERATORS

pleading-, and that the case cannot be safely re-
lied on as an authority outside of California."
Mr. Heney, also, came to the front with a letter;
but Mr. Heney's contributions to the literature
of the law are universally recognized as having
a claim to consideration only for their vitupera-
tive charm, being in all other respects negligible.
Against all this may be placed the note of the
editors of the Law Reports Annotated (15 L. R.
A. New Series, 717). Writing from a distance,
uninterested and presumably unbiased, they say
of the decision : "The case is in harmony with
such other cases as have had occasion to pass on
the question." This they proceed to show by
many pages of citation and quotation.



VIII

THE DYNAMITE EXPLOSION

A Miracle by Which the Precious Life of a Great

Grafter Was Spared, and Which Enabled

the Regenerators to Inflame Public

Sentiment

At no time during- the Graft Prosecution was
the performance allowed to flag. Whenever
public interest seemed on the point of drooping
something occurred to whip it up. And in-
variably the something served the purposes of
the pro-prosecution press. It was as though
some power had contrived a preternaturally in-
genious species of drama, — a piece historique,
as it were, abounding in desperately conflicting
events, sensational efifects. picturesque situations,
unlooked for rencontres, calculated to ravish the
senses, fillip the imagination and keep every-
body on the qui vivc. The times were incessantly
feverish. It was melodrama from beginning to
end. Murder was always in the air. Con-
spiracies to kidnap or kill were of monthly oc-
currence — in the press, nowhere else. To the
defendants were continuously imputed the most
fiendish designs, thus justifying repeated ad-
monitions to the public to be ever on the alert
lest the complete subversion of government be



164 THE REGENERATORS

effected with the suddenness of a bolt from the
blue. All of which served to harrow up the
souls of the susceptible and inspire them with
hatred of the abandoned wretches who had the
audacity to persist in fighting for their liberty.

Never was this machinery for the firing of
public sentiment so active as during the trials of
Abraham Ruef. His first trial, after the repudia-
tion of his immunity contract, was begun in
April, 1908. The trial of Tirey L. Ford was
then in progress before Judge Lawlor. This
was the first time that two graft trials ran con-
temporaneously. Hitherto it was the policy of
the prosecution to keep their forces united. But
at this period there was need of renewed and
extraordinary activity. More than two years
had elapsed since the grand effusion of indict-
ments, and nothing had been accomplished.
The Graft Prosecution was becoming an old
story. Also, as a consequence of criminations
and recriminations incident to the scandal which
Ruef had broached, it was too severely taxing
the credulity of even the average citizen. In-
deed the sacred cause of the regenerators was
becoming an object of ridicule. And what
worse fate could befall them than to have atten-
tion diverted from their virtues and concentrated
on their preposterous affectations ; to be laughed
at for their follies rather than acclaimed for their
patriotic endeavors ! This was precisely the sad
experience they endured for a time. Mr. Will-



THE DYNAMITE EXPLOSION 165

iam R. Hearst's Examiner, quick to apprehend
the temper of the times, shifted the civic heroes
from the domain of the tragic to the atmosphere
of the comic and held them up to the vulgar
derision of the groundlings. "Bud" Fisher,
cartoonist, introduced all the heroes to the read-
ers of the Examiner in his Mutt sketches, and
put the whole town on a broad grin. This was
the posture of afifairs when Ruef was forced to
trial on an indictment charging him with having
bribed a supervisor to pass the Parkside fran-
chise. Every civic patriot was down in the
mouth. The tide was running strong against
the battered hulk of righteousness. But as
events proved, while Mr. Spreckels and his as-
sociates were in the slough of despond, believ-
ing that they were being overwhelmed by mis-
chievous accidents in the lottery of life, they were
really groping in the darkest hour before dawn.

Midway in the process of impaneling the jury
a violent wrench was given to the situation of
affairs, heartening the prosecutors and filling the
objects of their hatred with dismay. This over-
due occurrence, by which a remarkable trans-
formation was effected, was a dynamite explosion
in Oakland, across the bay, which wrecked the
home of James Gallagher, star witness and con-
necting link between Ruef and the supervisors.

For the men on trial what a strange fatality
was this ! How readily and reasonably might
one conclude that the higher-ups had attempted



166 THE REGENERATORS

to assassinate the one man without whose testi-
mony conviction was impossible ! Nay, there
was hardly any escape from the conclusion for
anybody whose prepossessions were of a certain
color. There was room for scepticism only for
those hardened, unregenerate ones, who were
capable of conceiving the possibility of what is
technically known as a "frame-up," which
species of theatrical expedient was rendered
tolerably familiar to the people of San Francisco
after they made the acquaintance of Detective
William J. Burns.

The pro-graft press made good use of that
dynamite explosion. With their speculations
concerning it they set in motion all the com-
bustible part of men's passions. Everything was
taken for granted that served as nourishment
for the spleen. The higher-ups were damned
by wholesale. At first it was argued that the
dynamiter was the hireling of the United Rail-
roads, but in time it was assumed that Ruef had
inspired the atrocious deed. No pro-prosecution
editor permitted his "frail thoughts to dally with
faint surmise." Yet that dynamite explosion had
certain curious features that might perplex an
unprejudiced mind. It was a terrific explosion.
It tore away the front of the house, and wrecked
every room, smashing furniture and twisting
chandeliers. Evidently the explosive had de-
rived force from reaction against the walls of
the vestibule in which it had been placed. Perhaps



THE DYNAMITE EXPLOSION 167

it did more damage than was calculated. But
notwithstanding all the damage that was done
no person was injured. The room that Gal-
lagher said he was in when the explosion oc-
curred was badly wrecked. Even the furniture
was wrecked. Yet Gallagher did not receive a
scratch. "By a strange freak," said the San
Francisco Call, "not a person in the house was
injured." It was indeed "a strange freak"!
And the Bulletin commenting on the explosion
exclaimed : "A miracle spared the lives of eight
people." Yes, it was necessary to believe in
miracles for the purposes of the regenerators.
What appeared to be "a. miracle" and also "a
freak" might have been explained on the hypoth-
esis that Gallagher and his family, having re-
ceived a timely and impressive premonition, with-
drew into the backyard just before the explosion
occurred. Some persons who didn't believe in
miracles visited the house — and they didn't be-
lieve Gallagher either. They said he was mis-
taken. To them his statement that he was in
the house at the time of the explosion was in-
credible, nay, preposterous.

Several days after the explosion it was learned
that some months prior to the occurrence the
police had arrested a man by the name of Wil-
helm on the suspicion that he was a dynamiter.
He was in custody four days, and was then re-
leased. The news of his arrest was not given
to the press. There may be more or less sig-



168 THE REGENERATORS

nificance in the circumstance that at that time
former EHsor Bigg"y was chief of poHce, working
in harmony with Detective Burns, at whose in-
stigation the arrest was made. The Examiner,
teUing of this arrest after the explosion, said
that Wilhehn told the police that Burns "em-
ployed him in his professional capacity as a
bombmaker to make a bomb for a demonstra-
tion against Judge Lawlor and so turn public
favor toward the prosecution." The police got
on the trail of Wilhelm again after the explosion
and arrested him, and he told his story. He said
that J. M. Macey, a detective employed by
Burns, and a young man whom he believed to be
Burns's son, visited him one day in Oakland,
and representing that they were employed by