arrested for libel. If Older had prosecuted Bow-
ling, the whole truth would have come out. This
he did not do. Bowling demanded a hearing. He
caused Detective Burns to be summoned as a
witness. Burns failed to respond, but was ex-
cused by Police Judge Deasy, a protege of the
(iraft Prosecution, who dismissed the case on
motion of the complainant. The explanation of
the motion was that the regenerators were too
busy with other matters to find time for the
prosecution of Bowling.
111-. (AU STRIKE
Scenes on two occasions when sympathetic teamsters blocked
traffic on the public streets.
IV
BIZARRE JUSTICE
The Manipulation of Juries, Grand and Petty, a
Plague of Spies and the Employment
of General Warrants
Of the many evils resulting' from the Graft
Prosecution the worst was the utter demoraliza-
tion of the established processes of law and the
impairment of pvtblic confidence in the adminis-
tration of justice. Pjecause of this California is
today threatened with a constitutional amend-
ment designed to render the courts sensitive to
popular whim and subservient to the dictates of
the mob. The San Francisco regenerators with
the assistance of the newspapers and the co-
operation of college professors and such distin-
guished university presidents as Benjamin Ide
Wheeler and David Starr Jordan, inculcated in
the public mind a curious notion regarding
the duty of the ministers of justice. The Graft
Prosecution acted on the theory that the courts
ought to administer whatever they might con-
ceive to be moral justice. This theory the news-
papers approved and Dr. Wheeler actually voiced.
The doctrine of the presumption of innocence
was pronounced heterodox ; and Francis J.
Heney, in open court, denied that there was any
66 THE REGENERATORS
authority for the principle, gravely arguing that
when a man was indicted he was presumed to be
guilty. The prevailing sentiment was that the
supervisors having confessed they were bribed,
nothing could be clearer than that the men who
bribed them should be sent to the penitentiary.
The fact is, as we shall see, that what the
supervisors confessed was quite different from
what they were said to have confessed. Also, the
fact is, as we shall see, that while there is no
doubt of the guilt of the supervisors, there may be
much doubt of the guilt of many of the higher-
ups. But for the present let us confine ourselves
to consideration of the irregularities of the prose-
cution.
The regenerators stoutly affirmed the absurd-
ity of presuming anybody to be innocent. Though
they (lid not express the sentiment they implied
by their actions and loose talk that the higher-ups
should be got to jail by hook or by crook. In-
deed there were men in San Francisco who
realy considered it but a matter of form, the
invoking of the function of the courts. As every-
body knew the higher-ups were guilty, it was
suggested, why not take a plebiscite on the ques-
tion of punishment? This sentiment holds the
germ of the principle on which it is proposed to
apply the recall to the judiciary, an expedient
objectionable on the ground, if on none other, of
its cumbersomeness, since the referendum might
be more rationally employed to the same purpose
BIZARRE JUSTICE 67
in all kinds of litigation, thus obviating the neces-
sity of a judiciary.
And so as it was determined to have chiefly
moral justice administered for the benign pur-
poses of the regenerators, Francis J. Heney gave
his personal attention to the work of impaneling
a grand jury. In deference to popular sentiment
he was permitted to catechise each citizen on the
jury panel and exclude every one that did not
favorably impress him. Thus he managed to or-
ganize a very docile jury, one that produced in-
dictments for him with something of the auto-
matic readiness of a nickel-in-the-slot machine.
His influence over the jury had all the potency
of irresistible hypnotism. But, to be sure, the
grand jury was in a most receptive and suscepti-
ble mood. How could it be otherwise, with pro-
pitious public sentiment clamorous for indict-
ments, and the newspapers shrieking for indict-
ments and assuring the people that as the jurors
had the public interest at heart they could be de-
pended upon to perform their duties in accordance
with Mr. Heney's wishes? Such subtle flattery
might reasonably have been expected to have the
desired effect. The grand jurors, most of whom
were stolid business men, unaccustomed to the
limelight, having no previous experience of the
joys of celebrity, awoke to the blare of fame, and
realized that they were entitled to rank as civic
patriots. With great enthusiasm some of these
susceptible citizens became part of the civic re-
68 THE REGENERATORS
vleir.ption machine. A few of them were re-
warded with pubHc office, not by the people but
by the gentlemen most capable of appreciating"
their disinterested service — the regenerators. One
was rewarded even unto the second generation,
his son being appointed police magistrate, thus
becoming available for service to the cause.
It was thus the good work went on, and it
was in circumstances such as these that days of
terror dawned for men marked for slaughter ;
that prominent citizens, seized with panic fright,
went scurrying about town invoking the influence
of their friends to save them from indictment
for they knew not what. Nothing more some
of them knew than that detectives were at their
heels, and that at some time in their lives they had
incurred the emnity of some one of the prose-
cutors. William J. Burns, the Sejanus of the
Graft Prosecution, had an army of spies at his
beck and call. And all the while Francis J.
Heney was issuing through the columns of an
exultant press vague but portentous manifestoes
susceptible of as varied interpretation as the
dictum of a Greek oracle. By day he worked at
the grand jury mill, grinding out indictments.
By night he addressed public meetings, vituperat-
ing the men whom he was engaged in prosecut-
ing. Always he went about with the forbidding
aspect of a Foucjuier-Tinville, starting gooseflesh
with his frown. Parlous were the times while
Heney 's magnetic power over the grand jury
BIZARRE JUSTICE 69
was at its height. In time that power diminished, v^
the consequence being- that all of the prosecutor's
early promises were not realized ; that is he did
not indict all the men to whom he had opened
up the melancholy prospect of a long sojourn in
the penitentiary. Not that he relented, or that
time assuaged his passion, but that some^f the
grand jurors revolted against the practice of in-
dicting men without evidence. Thus, Mr. Heney
failed to procure the indictment of William H.
Crocker. He urged the indictment of that gen-
tleman, but got only one vote, a circumstance
which seems to argue that Mr. Crocker was
not only guiltless of crime but almost an im-
peccable citizen, for at no other time were so
many of the pliant jurors unresponsive to the
wishes of the prosecutor. The failure to indict
Crocker must have occasioned profound lamenta-
tions, for he was a marked man from the be-
ginning. Besides he was one of the pet aver-
sions of James D. Phelan.
Further disappointment of a grievous nature
was caused by Mr. Heney 's inability to procure
the indictment of William F. Herrin, chief of the
law department of the Southern Pacific Company.
It was supposed that the indictment of Herrin
would lead to the indictment of Harriman, but
no evidence was available ; not a scintilla of evi-
dence against the officers of the great corpora-
tion which is reputed to have been in the busi-
ness of corrupting the government of California
70 THE REGENERATORS
for almost half a century. This lack of evidence,
however, was not necessarily a bar to prosecution,
or at least to indictment, as is evident from the
experience of more than one man. The case of
W. I. Brobeck, reported in volume 152, page 289
of the California Reports, will suffice for illustra-
tion. "The indictment referred to in this opin-
ion," says the court, "was subsequently dismissed
by the Superior Court of the City and County of
San Francisco upon motion of the district at-
torney on the ground that there is no evidence
sufficient to put said W. I. Brobeck on his defense
to said charge and that in the interest and fur-
therance of justice the said indictment as to said
\V. I. Brobeck should be dismissed and dis-
charged." The district attorney who moved the
dismissal on these grounds was the district at-
torney of the Graft Prosecution.
With reference to Herrin, Harriman and
Crocker it may be truly said that the cunning
spider had too long delayed the weaving of
his web for the biggest flies of his seeking.
However, Mr. Heney did very well in the
days before the grand jurors became intract-
able. Men were indicted at his behest who have
never been -brought to trial, the reason being
that they were beyond even the suspicion of
guilt. Two notable cases are those of Thorn-
well Mullally. vice-president of the United Rail-
roads and William Abbott of that corporation's
law department. About two years after the date
BIZARRE JUSTICE 71
of their indictment it was admitted in open court,
by one of Mr. Heney's assistants, during the
course of the argument in one of the graft cases,
that there was no evidence against Mullally or
Abbott, and that they never would be tried. Yet
for five years these men were kept under bonds.
Naturally the question will be asked, Why were
they indicted? The answer is. In the hope of
extorting testimony from them. It was thus
the principle that the end justifies the means was
applied in San Francisco.
Prosecutor Heney's manipulation of the grand y
jury was a masterly achievement. But quite
comparable with it as a triumph of ingenuity was
his manipulation of trial juries. Here again the
prosecutor introduced some new and subtle
stratagems ; new to San Francisco, but not new
to Mr. Heney, for he had tested them in Oregon
in the land fraud cases, where President Roose-
velt supplied him with resources almost equal to
those which he enjoyed in California. With the
aid of his large corps of detectives Mr. Heney
familiarized himself beforehand with the char-
acter, the disposition and the sentiments of every
man who entered the jury-box to be examined
as to his qualifications to serve as a juror. Pros-
pective jurors were interviewed for the enlighten-
ment of the prosecution without being conscious
of the fact. And thus it became an easy matter
for the prosecution to determine when to accept,
when to exclude and when to challensre. Mat-
72 THE REGENERATORS
ters were greatly facilitated by this method,
about which, by the way, there is nothing
inherently wrong. A fair and disinterested
prosecutor, concerned about nothing but the ad-
ministration of justice, conscious at all times of
his obligations as a juridical officer, (his obliga-
tions to a defendant as well as to the State)
might properly be indulged in the practice of
this method. But consider Heney ! Consider
that this most zealous of prosecutors, represent-
ing a private cabal, went about boasting that he
would send to the penitentiary every person in-
dicted by his docile grand jury. Not privately,
but in public, on the bema, he pledged himself
to convict men, who, under the law are presumed
to be innocent, who are entitled to the presump-
tion of innocence even as late as when the jury
retires to deliberate on the verdict. Consider
that while this prosecution was in progress it was
marked by an ebullition of all the meaner pas-
sions of human nature, and that in the heat and
dust of conflict the opposing factions fought
tooth and nail, might and main, wfth intense
fury and brutal obstinacy. The spirit of that
contest was manifestly not akin to the spirit of
the square deal. Imbued with the prevailing
spirit Prosecutor Heney availed himself of
many advantages which the most generous
ethics can hardly sanction. The fact is that he
did not decline the service of jurors whom
he knew to be so prejudiced as to be be-
BIZARRE JU-STICE 73
yonci the influence of evidence or the per-
suasion of a defendant's counsel. Proof of
this is accessihle. The proof came to hght in
tlie midst of a very exciting" and dramatic situa-
tion tliat arose out of the rivalry engendered be-
tween opposing forces of private detectives.
For be it known the defendants did not allow the
detectives for the prosecution the exclusive priv-
ilege of interviewing jurors. Following the ex-
ample of their pursuers they employed a large
corps of detectives. And then was developed a
plague of detectives, much to the distress of
citizens who had the misfortune to be eligible
for jury duty. More than fifty per cent of the
citizens of San Francisco had their private lives
scrutinized by spies during the progress of the
Graft Prosecution. Hardly to be compensated
were some of them, even though the good Mr.
Phelan and the good Mr. Spreckels had really
accomplished the regeneration and purification of
the community. These spies that infested San
Francisco were typical of their class. Partisans
for hire, they were to be alienated for hire. On
each side were unfaithful spies, and thus the
secrets of both sides became more or less common
property. Detective Burns, who had been doing
a good deal of boasting about his success in
acquainting himself with the private afl:'airs of the
enemy, learned one day to his consternation of
treachery in his own camp. Quickly a confer-
ence of the prosecution forces was held, and a
74 THE REGENERATORS
grand coup was resolved upon, the boldest, per-
haps, of all the high-handed ventures of the
regenerators. They resolved to get access under
color of juridical authority to all the private
papers of the United Railroad officials. By way
of pretext Detective Burns swore to complaints
charging the elusive "John Doe" with grand
larceny, and on these complaints he asked for
general warrants by virtue of which search might
be made anywhere and everywhere. Presum-
ably, of course, he believed that some of his
papers had been stolen. Detective Burns has a
fine facility for expedient belief. What the
enemy had, of course, were copies of some of
the reports of Burns's detectives, just as Burns
had copies of reports made by the opposition
hawkshaws.
General warrants, such as Detective Burns
asked for, are believed to have been tabu
on American soil ever since that memorable,
eventful period, immediately preceding the revolt
against the rule of George III. They are not
easily obtainable in an American city. But San
Francisco, it must be kept in mind, was ex-
periencing a curious, mixed character of govern-
ment in the days of Rudolph Spreckels's ascend-
ancy. Almost anything Spreckels wanted he
could have for the asking. What power his
agents were vested with may be judged from
the circumstance that Judge Lawlor issued a
large number of blank warrants, signed and
BIZARRE JUSTICE 75
sealed, lettrcs de cachet, for the arrest of any
private citizen. These were given to Detective
Burns. Why then should Burns have had
any difficulty in obtaining mere search war-
rants? Wanting them, he went to Magistrate
Deasy, son of one of Heney's obedient grand
jurors, formerly a deputy in District At-
torney's Langdon's office, and the warrants were
immediately forthcoming. Then followed a raid
on the offices of the United Railroads Company.
This stratagem was planned for a late hour in
the afternoon, when the courts were adjourned,
that no writ of injunction might be obtained.
But the officers of the company got wind, of the
project, went in quest of a judge, found one
and obtained a writ. But, of little use in those
days were the processes of the court, save when
they were invoked for the purposes of the re-
generators.
When the police and flock of private detec-
tives arrived with the warrants they were served
with the writ of injunction, and they ignored it.
Finding the vaults of the company locked, they
demanded that they be opened, and threatened
that otherwise the vaults would be blown open.
So the vaults were opened, and all the books and
private papers found there were examined by
the detectives. In the midst of the search a
paper was found the sight of which impelled one
of Burns's detectives to utter an exclamation of
astonishment. It also induced him to blurt out
1(i THE REGENERATORS
a bit of information most disqnieting" to his em-
ployers. In the presence of several newspaper
reporters and lawyers this detective, Ray C.
Schindler, exclaimed : "Why that's a copy of
my own report on Arthur. No wonder you chal-
lenged him! He's the most prejudiced man
against Calhoun I ever saw." Now the man to
whom this detective alluded was James L. Ar-
thur, a building- contractor, who had been twice
in the jury box — once in the Ruef case and once
in the Calhoun case. In both instances, while he
was under examination as to his qualifications to
serve as a juror, the prosecution had in its pos-
session the report of Detective Schindler contain-
ing these words: "Arthur is the most prejudiced
man I have interviewed as yet, and if he were
chosen as a juror would hang out for conviction
till doomsday." Yet Francis J. Heney was will-
ing, nay eager, to have this man sworn as a
juror. Francis J. Heney, as the record shows,
heard him asked this question: "Have you any
prejudice against the defendant of any kind."
And Francis J. Heney heard him reply, "None
whatever." And Francis J. Heney sat silent. He
heard Arthur challenged for cause, and resisted
the challenge. In the Ruef case when the challenge
was resisted the attorney for the defendant called
Heney to the witness stand, and asked him if he
did not have a report regarding Arthur's state
of mind. He declined to answer. Fvery ques-
tion that was asked him he declined to answer.
BTZARR1-: JUSTICE 17
and the judge on the bench, WilHam P. Lawlor,
upheld him and forced the defendant to exercise
one of his peremptory challenges. In the Cal-
houn case it was again necessary for the defense
to exercise a peremptory challenge in order to get
rid of Arthur.
This specimen of unfairness on the part of the
graft prosecution in the impanelment of juries
is but one of many. But all the others are
not susceptible of such clear presentation. Of
this Arthur infamy, the record, with brevity and
compactness, speaks for itself. There are some
things that the record discloses only vaguely ;
others, not at all. For example it does not ap-
pear from the record that special venires were
summoned by a deputy sheriff of the court's own
choosing, or that the judge on the bench was him-
self a partisan of the (iraft Prosecution. The
fact is that all the graft cases were assigned to
two judges — William P. Lawlor and Frank H.
Dunne — who were the club cronies of the regen-
erators ; who espoused their cause off the bench ;
who were involved in their intrigues, sharing in
their glory when their star was in the ascendant,
and complaining of public ingratitude in the hour
of their downfall. It is not exaggeration to say
that by reason of the attitude of these judges it
was a very difficult matter to prevent the juries
being packed against the defendants.
V
GRAFTERS AND PROSECUTORS
When Facts Don't Square with Theory then Comes
Progressive Testimony under the
Immunity Lash
Most of the irregularities of the Graft
Prosecution' are rightly to be ascribed to
the circumstance that facts did not square
with presumptions. Abraham Ruef did not
handle his business as the regenerators sup-
posed. Nor were the supervisors precisely
the kind of grafters they were believed to be.
But the eagerness of the regenerators to reach
their end being in proportion to their impatience
of every stubborn fact that belied what they be-
lieved and what they wished everybody else to
believe, they stuck to the course which they had
charted, through all the channels of sophistry,
striving to command success after they had
ceased to deserve it. It was thus they came to
flounder in a sea of difficulties, thus they made
history which to this hour is much misunder-
stood, its whole import, meaning and value per-
versely deciphered.
First we find the regenerators striving to vin-
dicate the immunity bath by picturing the super-
visors as tragic victims of temptation. Now the
GRAFTERS AND PROSECUTORS 79
supervisors were nothing of the kind. Their
meanest graft they practiced without even the
knowledge of Ruef, who, discussing them after
his arrest, described them as so greedy that "they
would eat the paint off a house." According to
the pro-prosecution press they were poor ignorant
men whose virtue was intact till it was assailed
by the plutocrats of the public service corpora-
tions. The other side of the ])icture was un-
veiled as soon as the graft cases came to trial.
Then it was learned that the supervisors, before
their official seats were warm, were grafting with
tradesmen from whom they purchased supplies
for the city.
On Ruef's preliminary examination Supervisor
James Gallagher, chief witness for the prosecu-
tion, "go-between" for Ruef, gave testimony with
reference to a speech made by Supervisor Box-
ton as spokesman for his confreres at a luncheon
given by some prominent business men who
wanted what is known as the Parkside franchise.
He quoted Boxton thus : "Well you people are not
in this business for your health, and we are not in
business for our health." Gallagher swore also
that up to that time no illegitimate proposal had
ever been made by a corporation.
From what one may learn from the voluminous
transcripts of the testimony given at the several
trials, it may be seriously questioned whether
Ruef was guilty of statutory crimes because of
his dealings with corporation officials and public
80 THE REGENERATORS
servants. The men who hired Ruef as an at-
torney with the expectation of obtaining his
poHtical influence may not be regarded as civic
ideaHsts, but it was possible for them to take
advantage of Ruef's influence without committing
any infraction of the penal code. And it is but
just to say that in some instances Ruef's in-
fluence was unsoHcited ; furthermore, as there is
testimony to show, the ignoring of Ruef might
have been productive of very serious conse-
(|uences to persons having business relations with
the city. As to some of the defendants the worst
to be said against them is that they obeyed the
command of the buccaneers — they walked the
plank.
The civic condition of San Francisco at this
time, familiar as it was to the citizens, requires
a brief exposition for the understanding of the
general reader. Every department of the munic-
ipal government was under the absolute domina-
tion of Abraham Ruef. Mayor Schmitz, a man
of courteous manner and pleasing personality,
had publicly announced his undying debt of
gratitude to Ruef, and had freely intimated that
any one who sought recognition or favor from
his administration must do so through Ruef.
Tlie board of public works, the police commis-
sion, the fire department, and every other board
and commission, were filled with men owning and
professing no allegiance to anything or anybody
but Ruef. The members of the board of super-
GRAFTERS AND PROSECUTORS 81
visors were but a brigand band, organized for
plunder under the sub-leadership of Gallagher,
himself a member of the board and an attorney
at law, but taking orders absolute from Ruef.
Thus, while the board of supervisors, through
their various committees, might do a little loot-
ing and plundering upon their own account, in
a petty larcenist sort of way, in their regular
campaigns of brigandage they took orders from
Ruef, and never dreamed of violating them.
The civic condition of San Francisco, then, un-
der the Ruef-Schmitz regime, was this : no
citizen could look for justice, much less for
privilege or favor, except through Ruef. Ruef
did not pretend to limit his activities to pub-
lic or quasi-public corporations. No "fee" was
too small to be fish for his net. If a prop-
erty owner desired to build, with his plans
and specifications carefully prepared in con-
formity to all the existing ordinances, it was
necessary for him to obtain a permit so to build
from the board of public works. His plans and
specifications being absolutely regular, the grant-
ing of the permit, it would be thought, would
follow as a matter of course. But in practice it