be conjectured, but the fact is, as was learned
from affidavits made by jurors after the trial,
some of them went to Judge Lawlor before the
resumption of the trial, told him they had be-
come prejudiced against the defendant by reason
of the shooting and could no longer act im-
partially. Judge Lawlor refused to discharge
them. He told them "to keep their feelings to
themselves," and that he would properly instruct
them later. These affidavits have never been
disputed. Judge Lawlor did instruct the jury
with reference to the shooting, saying : "No per-
son is to be charged with responsibility for that
transaction." This instruction was not satisfy-
ing to Henry Ach and Thomas Dozier, attorneys
for Ruef. Not for the defendant's sake only, but
for their own also, they were eager for a change
of venue, since they, too, were under police pro-
tection on accounts of threats against their lives
for defending their client. But Judge Lawlor
quickly disposed of the motion for a change of
venue. He denied it. And his decision was ap-
plauded by the spectators, many of whom wore
the printed badge of the League of Justice, which
body was now more energetic than ever. The
day on which the trial was resumed the league
issued an appeal to the public "to enroll in the
222 THE REGENERATORS
cause of justice" and "not to allow our citizen-
ship to relapse into a state of apparent moral
apathy."
In extraordinary emergencies, as, for example,
when public ruin threatens, justice may properly
be sacrificed to utility, the safety of the people
being the supreme law. But this principle was
not invoked in the case of Abraham Ruef. Yet
justice was wantonly violated. Justice, which
ordinarily is "fearful of doing wrong even to
the greatest wrong-doers," on Ruef's second trial
was fearful of doing nothing but right. Never
from the transplanting of Anglo-Saxon justice
was there such a trial as this on American soil.
In the atmosphere of this trial one feels as though
he had come in contact with the granite hardness
of human character on some dark and tragic
stage devoted to the exploits of barbaric tyranny.
Quick work was made of the fallen boss
when the trial was resumed. But despite what
had occurred the prosecution did not behave to-
ward the defendant as though there was no
longer necessity of insuring a verdict by taking
unfair advantage. It will not be necessary to
go into details to indicate the manner in which
he was dealt with. What the attitude of the
judge on the bench was is evident enough from
his rulings, but these are to be appreciated only
by lawyers or persons who have some acquaint-
ance with juridical procedure. It will suffice to
glance at the argument made by Hiram John-
THE CONVICTION OF RUEF 223
son, for the character of the arg-ument is
conclusive of the mood of the court. A
glance is no more than is needed to perceive
that this lawyer, acting for the district at-
torney, must have been somewhat in doubt
as to the conclusiveness of the proofs of
guilt, since he much preferred to discuss
other matters. Before taking this glance it
may be well by way of preface to observe that
a prosecuting attorney, under the law, occupies
a semi-judicial position ; that it is the sworn duty
of a district attorney to see that a defendant has
a fair and impartial trial ; that it is reversible
error under the decisions of the Supreme Court
of California for a district attorney to express
in his argument his opinion or belief that a de-
fendant is guilty ; that remarks tending to
prejudice the minds of a jury, personal abuse,
vilification, appeals to fear, vanity or passion
are also inhibited and deemed justification for
reversal. Mr. Johnson, as will be seen, was
subject to none of the restraits imposed by law.
Early in his argument, discussing a witness
named Latham who had left the State to evade
judicial process, and who had testified when
brought back that Ruef had not induced his
departure, Johnson expressed himself in this in-
coherent fashion : "Who had him decamp ? First
the United Railroads ; secondly Abe Ruef. That
is all there is to it. Why did they have him
decamp? An innocent man? Jobbed was he?
224 THE REGENERATORS
Paying- witnesses and bribing witnesses. Oh,
yes, away with the suborners of perjury! Away
with the bribers of witnesses !"
An exception was taken to these remarks.
Judge Lawlor instructed the jury that the
remarks were not justified by the record.
But he administered no rebuke. Indeed he
permitted Johnson to proceed thus: "I have
the undoubted right under my privilege as
an advocate, and so say I : Away with the
bribers of jurors and away with the brib-
ers of witnesses. That is my right, and
there is no question concerning it." If the court
failed to rebuke Johnson it cannot be said that
Johnson failed to rebuke the court. For we see
that he boldly challenged the ruling on the ex-
ception, and flung the objectionable language in
the judge's teeth. And the judge was com-
plaisant. The future Governor of California
was in a very pugnacious mood on tb , oc-
casion. He was not to be restrained by any
rule or principle ; he was_ intolerant of all
shackles ; his sentiments were free and .uien-
cumbered. Let us consult the transcript on ap-
peal and see with what vehemence he wandered
beyond the record, not so much to persuade as
to intimidate. To the record we must go else
it w^ould be too great a tax on credulity â– uldly
to assert that a prosecuting attorney, n an
American court of justice, in the twentietl cen-
tury, was permitted to practice intimidatirn on
a jury.
RUEF GOING TO AND FROM COURT
the lower picture the ruins of the City Hall are seen in
the distance.
THE CONVICTION OF RUEF 225
In folio 13357 of Volume IX of the record is
to be found the following language : "Why, if
you don't convict this man may God m his in-
finite mercy or worse call upon you the conse-
quences of your act. If when he pleads himself
guilty, as he has in this case, you dare to violate
your oaths and say he is not guilty may the good
God deal with you because by heaven the people
will not." The import of all this language is not
clear, but the statement that Ruef had pleaded
guilty in the case at bar is bald, unvarnished mis-
representation. He never pleaded guilty to brib-
ery. He pleaded guilty in one of the French
restaurant cases, and even then, in the same
breath, affirmed his innocence. Another vague
threat is to be found in folio 13380: "Dure you
acquit this man ? Dare you ? And when we
have finished I will ask you again my friends."
In folio 13334 we find a telling allusion to the
Haas shooting: "Good God all this blood that
has been shed!" Again, in folio 13335: "Men
struck down doing their duty"; folio 13337: "All
this trial, tribulation and all this blood" ; folio
13419: "Away with the assassins"; folio 13444:
"Good God, all this time, all this money, all this
blood that has been shed." And once more a
threat, for Johnson has "damnable iteration" in
him : "If he is not guilty may the good God deal
with you. There is going to be no shifting of
responsibility in this determination. Are you in
the face of all this to turn him loose and tell him
226 THE REGENERATORS
to go hence? And if you are ready to do it by
the gods above we will know the reason why you
are ready to do it." This language is more to
the point.
Throughout Hiram Johnson's argument the
courtroom was filled -with members of the
League of Justice, wearing their badges, and
glowering at the jury. Johnson doubtless felt
that he was one of them, and the jury ought not
to have had any difficulty in rightly conjectur-
ing to whom he referred when he employed the
pronoun in the first person plural. But whether
the jury conjectured rightly or not, and whatever
the impression made by Johnson's argument, the
outcome was highly satisfactory to the patriots.
Ruef was found guilty. And Ruef is today in
the penitentiary serving a sentence of fourteen
years.
That Ruef deserves to be in prison, perhaps
there are not many in San Francisco who
will venture to dispute. But beyond doubt
there are few who will deny that it is most
unfortunate that the everlasting law of re-
quital took so tortuous course to visit retribu-
tion upon him. Those of us who regard jus-
tice as the centre of the whole system of
government, who understand that confidence in
public justice is the secret of the grand pas-
sion of patriotism itself, cannot but take a melan-
choly view of the process by which punishment
was visited on Abraham Ruef. To deplore the
THE CONVICTION OF RUEF 227
manner of his undoing is not to compassionate
him. Rather is one inchned, while complaining
of the injustice of which he was the victim, to
be incensed at him for having been the cause of it.
A thorough-paced rogue is Ruef ; in the capacity >C
at once of political boss and lawyer to a municipal
administration guilty of many immoral practices,
perhaps of statutory crimes ; but it may be
doubted whether all of his wanton misdeeds con-^
stituted a greater crime against the State than
the one to which he was made a party by the
men who prosecuted him — the crime of making
a mockery of justice.
It was bad enough for Abraham Ruef to be
convicted in the manner here described, but at least
his trial and conviction were in accordance with
the forms of law, and thus far he was given the
benefit of "due process of law." Eventually it
was deemed expedient to deny him even "due
process." Ruef's appeal was carried to the
highest tribunal in the State. It was his con-
stitutional right to be heard by that tribunal.
There is a statutory period in which the court
must decide whether it shall grant the applica-
tion for a hearing. Four of the seven justices
of the Supreme Court (all that were necessary)
signed the order granting the application. The
signatures were appended at different times, but
the order was made as of the last day of the
statutory period. One of the justices whose
signature was attached had departed from the
228 THE REGENERATORS
State. Quickly the prosecution, through the at-
torney-general, took advantage of a technicality
by which Ruef through no fault of his own was
deprived of his constitutional right. It was
argued that under the decisions of the Supreme
Court the justice who was beyond the borders
of the State when the order granting the hear-
ing was made had lost jurisdiction, and therefore
that the order was void. And so the court held.
Thus was justice meted out to Abraham Ruef,
or, rather, thus did Attorney-General Webb join
with the fallen boss in a glorious triumph over
that great virtue which, some philosopher has
said, is as essential to the training of a little in-
fant as to the management of a mighty nation.
XII
THE CALHOUN TRIAL
I'oUoivcd by the Crushing Defeat of Heney at the
Polls and a Scattering of the Forces
of Righteousness
Between the clay of Ruef's conviction, Decem-
ber 19, 1908, and the extinguishment of his hopes
in March, 1911, when he entered the penitentiary,
the experience of the regenerators was such as
to dishearten them. But for a short time, im-
mediately after Ruef's conviction, they were in a
most sanguine mood and full of energy. The
time seemed propitious for the trial which
Patrick Calhoun had been demanding from
month to month. The supposition was that the
conviction of Ruef strengthened the probability
of the conviction of the railroad official. So
Calhoun was accorded a trial. Judge Lawlor
presiding. Once again was the State repre-
sented by Francis J. Heney, now recovered from
his wound and in the pink of condition, attended
by two bodyguards, with Detective Burns and
four of his men forming a semi-circle at the
little prosecutor's back. Thus was revived the
primitive custom of the community of Bitter
Creek. Both sides were armed to the teeth. So
prevalent was the pistol in the court-room that
it seemed to be deemed essential to a proper and
230 THE REGENERATORS
effective administration of justice. It was as
though Justice carried a pistol in her belt to
reinforce the menace of the sword.
The work of impaneling a jury for the Cal-
houn case was begun January 12, 1909, and
thereafter the spectators supped full of sensa-
tions day by day. Sixty-three days were spent
in getting a jury. During that period 2310 tales-
men were examined. It was hard to get a jury
for reasons that must be obvious ; yet perhaps it
may be well to remind the reader that the con-
test which had been raging for three years had
embittered the feelings of almost every citizen of
San Francisco. Nothing short of a most sublime
celestial spirit could insure a man against ardent
sympathy with one side or the other. Hardly
anybody could be found who had not formed an
opinion as to what should be done either to the
higher-ups or to the regenerators.
It was about this time that the muckrakers of
magazinedom were deploring the spread of the
sentiment that the Graft Prosecution was "hurt-
ing business." The muckrakers indicted a whole
cityful. To what great length of insight had
these dogmatists of the press advanced ! After
a few days in the company of Detective Burns,
or as the guest of Rudolph Spreckels, any New
York journalist could tell you just what the mat-
ter was with San Francisco. It was a degenerate
city, its ears closed to the Voice in the Wilder-
ness ; dominated by building beavers ; heedful
only of the Gospel of Mammonism.
THE CALHOUN TRIAL 231
Assuredly the Graft Prosecution had "hurt
business." Indeed business had not yet recov-
ered from the effect of the car strike. Be-
sides hurting business the Graft Prosecution
was making the whole city very unhappy. Now
the happiness of a city is a matter of some
consequence. A domestic quarrel involving all
the elements of a community is an affair of State,
a melancholy one. Were the people to blame
that the essay in regeneration had developed into
a domestic quarrel? Consider the direction it
took from the start by reason of the exhortations
of the patriots for public complaisance. This
domestic quarrel was a legitimate fruit of cir-
cumstance, a natural and normal development
which any student of cause and effect might have
predicted. And now that it was growing more
furious every day, it was also becoming more in-
tolerable. Surely it did not argue a lack of vir-
tue that "a plague o' both your houses" had be-
come the sentiment of many citizens who per-
ceived that to the regenerators their cause was
their vanity, which was not to be wounded
"Though sun and moon were in the flat sea sunk."
Such, then, being the sentiment gendered dur-
ing three years of factional strife, it is no wonder
that a jury was hard to get to try Patrick Cal-
houn. Citizen after citizen confessed in the jury-
box to prejudice against the men behind the
prosecution. Scores of citizens asserted that they
would not believe testimony purchased with ini-
232 THE REGENERATORS
munity. Slow and tedious therefore was the
task of finding twelve good men and true to
administer justice to the pet aversion of the tire-
less cabal. But the tedium was relieved at brief
intervals by colorful and breezy episodes. As
for example, when a man in the jury book com-
plained one day that his wife had been questioned
at her home by an intrusive detective, who wanted
to know what her husband thought of Calhoun.
The judge pricked up his ears at this disclosure.
Had Calhoun been trying to get advance informa-
tion? In all likelihood such was the case. But,
alas, it turned out that the detective was of
Burns's staff. So Heney concluded that the
defendant had tempted the detective to turn
traitor and occasion the suspicion that the prose-
cution was tampering with jurors. Quick at all
times was Heney to impute misconduct to the
other side.
At another time when dullness was making all
hands drowsy Earl Rogers, of counsel for defend-
ant, fired the combustible Heney with a mild
innuendo. Several jurors had been sworn to try
the case, making the moment opportune for
some verbal fireworks. In his best strident tones
Heney announced that he would no longer
tolerate unpleasant insinuations. And then re-
viving recollection of the spilling of his precious
blood on the altar of civic patriotism, he broached
:i new theory as to the psychology of his almost
glorious extinction. He said that he was shot
THE CALHOUN TRIAL 233
l)ecause he had so tamely suhmitted to vihfica-
tion during the Ruef trials. W'hich seemed to
imply that he had ceased to believe that he was
the victim of a conspiracy. IJy way of perora-
tion Heney launched the ultimatum that over a
line which he had drawn no man would be per-
mitted to step. Whereupon the cynical A. A.
Moore, leading attorney for the defendant,
blandly asked, with a glance at the animated ar-
senals environing Heney. "Are you going to turn
loose your gun fighters?" The superheated lit-
tle patriot ignored the pertinent inquiry.
Heney's irruptions contributed no little gaiety
to the proceedings. One day shortly after the
trial was begun Judge Lawlor mildly rebuked
him, just to indicate, perhaps, that there were
bounds to the indulgence of the court. But
Heney was not to be awed by the bench. He
defied Judge Lawlor to punish him, delivered an
oration on his personal status, and again re-
minded everybody that an attempt had been
made to take his life. Hardly had he subsided
when his assistant, John O'Gara, provoked an-
other uproar. From long association with Heney
O'Gara had caught the infection of the Heney
manner. He accused a little boy, who acted as
a messenger for defendant's counsel, of sneering
at a witness "in full view of the jury." Doubt-
less he feared that a juvenile sneer might have
the effect of a powerful argument. In the midst
of the clash between counsel occasioned by the
234 THE REGENERATORS
grave accusation against tlie messenger boy, the
defendant himself rose and addressed the court.
"I am on trial here," he said, "and I desire to
enter a protest against the conduct of the district
attorney as unbecoming and contrary to every
rule of law and of practice among English-
speaking people."
A mild, impressive protest, but futile. Almost
every rule of law and practice was abrogated be-
fore Calhoun came to the end of his trial.
The specific charge on which Calhoun was
tried was that of promising a bribe to Supervisor
Nicholas. The prosecution was to prove that
Nicholas received the promise from Gallagher,
who received it from Ruef, who received it from
an ofificer of the United Railroads. A very small
part of the time consumed in the trial was spent
in trying to establish the facts charged. Most
of the time was spent in efiforts to prejudice the
jury against the defendant. And to that end the
prosecution was permitted to introduce a large
mass of testimony having not the slightest bear-
ing on the issue. The street car strike was the
topic of much testimony ; also the dynamiting of
Gallagher's home and the contest in thievery be-
tween the opposing stafifs of detectives. As a
consequence of the scope vouchsafed Heney by
Judge Lawlor, this trial, involving but one ques-
tion, the question as to whether the promise of a
bribe had been made to a supervisor, dragged
along from January 12 till June 21.
WILLIAM P. LAWLOK
The "midnight meeting" judge who presided at the
Ruef and Calhoun trials.
THE CALHOUN TRIAL 235
At the close of the trial after the case was
in the hands of the jury. Judge Lawlor gave
a fresh illustration of his mental attitude in the
graft cases. To render the illustration obvious
it must be explained that the Ruef jury, a
majority of which voted for conviction on the
first ballot, was kept out till the last man was
converted. This necessitated a session of nearly
seventy-two hours. A majority of the Calhoun
jury voted for acquittal on the first ballot. It
was soon learned that only two jurors were hold-
ing out for conviction. Judge Lawlor made their
conversion impossible by discharging the jury
within twenty-four hours.
As soon as the trial was over there was talk
of starting another trial at once. Heney began
vociferating as passionately as ever, pourmg out
his torrent of words, uttering the threats that so
seldom fructify in achievement. But things were
not so bad as in the days when the terrorists
were more firmly seated in the saddle. No
threats were made to indict the recalcitrant
jurors who had not been impressed by Heney 's
breezy generalities. No loud proclamations were
made by the League of Justice. Mr. Spreckels
and his satellites were subdued of manner, the
general tone of their utterances being that of
sorrow and poignant disappointment.
The work of impaneling a jury for a second
trial was soon begun, but it had not progressed
far when a halt was called, the reason being that
236 THE REGENERATORS
FTeney was in tlie midst of a political campaign,
l^istrict Attorney Langclon's term was drawing
to a close. An election was to be held in No-
vember, 1909. To prolong the life of the reform
cabal it was resolved that Heney should become
a candidate for district attorney. He was nom-
inated by the Democratic machine, which was
manipulated by James D. Phelan and the Bul-
letin. Heney 's opponent was Charles AI. Fickert.
a young lawyer, a graduate of Stanford Uni-
versity. His record was flawless. He had taken
no active part in the dissensions that were tor-
menting the city. To the public he was un-
known. The campaign was an exceptionally
spirited one. All the attorneys for the Spreckels-
Phelan combine took to the platform to exhort
the people to avail themselves of the glorious
privilege of retaining the priceless services of
Francis J. Heney. Heney himself went about
reminding the people of his approximate martyr-
dom and calumniating his opponent. Judging
from the pro-prosecution press at this time the
whole country was watching the campaign and
taking a feverish interest in the great crisis that
was agitating the dizzy heights of uplift. From
the most distant parts sounded the clarion tone>
of renowned reformers commending Heney to
the grace of the people. Judge Lindsay of
Denver contributed a fine encomium on Heney.
which transported the friends of the little prose-
cutor. From Senator La Follette came this im-
THE CALHOUN TRIAL 237
portant message : "Heney's election will help the
cause of decency and righteousness everywhere."
Colonel Roosevelt refrained from instructing the
people in this crisis, but he sent a letter to Heney,
which found its way into the press : — "You are
one of the Americans of whom I not merely feel
proud, but whose deeds, whose high courage,
high integrity and entire disinterestedness of
devotion to the country make me thrill with
enthusiasm."
An insensate populace no longer susceptible
to the emotions of the hero of Kettle Hill,
utterly ignored the Roosevelt thrill. Out of
sixty-two thousand votes Heney w^as beaten by
more than ten thousand. Seemingly Heney had
l)ecome a weariness to the flesh ; likewise the
flraft Prosecution. Not so, however, in the judg-
ment of Mayor Taylor's whitewash committee.
This committee tells us that Fickert's election was
due to the support of bad men and to the cir-
cumstance that "some of Mr. Heney's speeches
lent color to the claim that he was attempting to
try the accused men at the bar of public opinion
rather than in the courts of justice." Heney's
conduct did not receive the approval of the com-
mittee because "he permitted himself to be drawn
into personalities from which a calmer judgment
would have saved him."
To the regenerators the defeat of Heney was
the signal for the ringing down of the curtain
on the graft drama. Within a month after his
23S THE REGENERATORS
defeat, before District Attorney Langdon's term
of office expired, the requiem of the regenerators
was sung by the whitewash committee. It was
in the form of a report to Mayor Taylor, who evi-
dently regarded it as of more importance than
the report of Police Commissioner Keil with
reference to the death of Chief Biggy, for he re-
ceived it, and it became an official document, and
it was printed and distributed at the expense of
the taxpayers of the city. The hand that wrote
the report is doubtless the hand of Chairman
Denman, but the spirit of the report is the spirit
of the regenerators. For one of the objects of
the report was to perpetuate the names of all the
directors of the public service corporations in-