Law Takes Shape: The Territorial Years

Prior to 1846, the swath of land now known as New Mexico was occupied and administered by several peoples and cultures, as described in Act 1.

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On Aug. 18, 1846, Brig. Gen. Stephen Watts Kearny of the U.S. Army of the West took New Mexico, and its capital, Santa Fe, without firing a shot.[1] The Mexican-American War had begun less than four months earlier, on April 25, 1846, when the United States invaded Mexico following the U.S. annexation of Texas.[2] Mexico still considered Texas its territory and refused to recognize the Treaties of Velasco, signed by Mexican President Antonio López de Santa Anna after he was captured by the Texian Army in 1836 during the Texas Revolution.[3][4]

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President James K. Polk was elected in 1844 on a campaign grounded in his belief in Manifest Destiny, including the “re-annexation” of Texas, reoccupation of Oregon and the seizure of California and New Mexico,[5] which at the time included what is now Arizona.[6]

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Kearny Code

With the capture of the vast territory of New Mexico, Kearny faced the task of establishing the rules of law that would govern its inhabitants. It was a daunting assignment in a newly conquered territory with thousands of years of Native cultures and customs, and hundreds of years of Spanish and Mexican law.

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Before the Americans arrived in 1846, la vida en Nuevo Mexico was fairly simple. Most residents were law-abiding, and disputes were settled informally with the help of the local priest or the alcalde. More serious matters were decided by the governor as the final arbiter. Lawyers were almost nonexistent.[7] With the arrival of the American army came American culture, American law and American justice.

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On Sept. 22, 1846, Kearny proclaimed what became the law of the land. First, he drafted a “Bill of Rights as Declared by Brigadier General Stephen W. Kearny.” Those rights numbered 13 and were prefaced with the declaration: “That the great and essential principles of liberty and free government may be recognized and established it is hereby declared.”

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Next, Kearny appointed civil officers and three judges of the Superior Court. Finally, to administer the government, Kearny established the “Laws for the Government of the Territory of New Mexico” — the Kearny Code. The code had 26 sections, each with multiple subsections, ranging alphabetically from “Administrations” of estates to “Courts and Judicial Powers” to “Witnesses” and various matters in between.

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The section titled “Laws” proclaimed: “All laws heretofore in force in this territory, which are not repugnant to, or inconsistent with the Constitution of the United States and the laws thereof, or the statute laws in force for the time being, shall be the rule of action and decision in this territory.” Thus, the tradition from the Spanish Law of the Indies recognizing “inoffensive” Native rules, customs and practices continued.[8]

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Kearny wrote: “These laws are taken, part from the laws of Mexico — retained as in the original — a part with such modification, as our laws and constitution made necessary; a part are from the laws of the Missouri territory; a part from the laws of Texas; and also of Texas and Coahuila; a part from the statutes of Missouri and the remainder from the Livingston Code.”[9][10]

Now for the rub: There was a real question whether Kearny, a military occupier of land, had the authority to establish New Mexico as a territory of the United States or to enact laws for its governance. That was ultimately Congress’s prerogative.[11] Between 1846 and 1848, however, the United States and Mexico were at war, and Kearny commanded an occupying force on Mexican soil.

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Even so, the Kearny Code remained unchallenged and in place, and it governed the territory for the next four years. Its influence continued long afterward.

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Treaty of Guadalupe Hidalgo

On Feb. 2, 1848, the war with Mexico ended with the signing of the Treaty of Guadalupe Hidalgo. The treaty established the Rio Grande, not the Nueces River, as the U.S.-Mexico border. Under the treaty, Mexico also recognized the U.S. annexation of Texas and agreed to sell California and the rest of its territory north of the Rio Grande for $15 million, including New Mexico and Arizona, along with the assumption of certain damage claims.[12] As a result, the western border of Texas followed the Rio Grande north, including what is now the eastern half of New Mexico, up to parts of Wyoming.

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The issue of Kearny’s lawmaking authority was resolved in 1850. In May, a constitutional convention met in Santa Fe, and citizens adopted a constitution on June 20. On July 1, the newly formed Legislature met, elected two U.S. senators and petitioned Congress for statehood. The new constitution, following the Mexican law of Sept. 15, 1829, known as the Guerrero Decree, which abolished slavery in Mexico, included anti-slavery provisions. Congress rejected the petition because Southern senators objected to those provisions.[13]

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Statehood was not to be, but Congress nonetheless granted New Mexico territorial status on Sept. 9, 1850, under the terms of the Compromise of 1850.[14] New Mexico remained a territory for the next 62 years.

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Congress created the New Mexico Territory from “unorganized federal territory” land, some of it ceded by Mexico to the United States for $15 million in the Treaty of Guadalupe Hidalgo in 1848 and some from territory purchased from the state of Texas in 1850.[15]

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In 1852, New Mexico’s borders stretched from the current border with Texas on the east, north into southern Colorado and west to California, including the parts of Nevada where Las Vegas sits today. There were seven counties, from north to south: Taos, Rio Arriba, Santa Ana, Bernalillo, Valencia, Socorro and Doña Ana.[16] Through 1852 and into December 1853, Mexico and the United States continued to dispute their respective northern and southern boundaries from the Rio Grande to the California border.

Two issues caused the rift: a surveying error[17] and a border dispute created by a lack of clarity in the Treaty of Guadalupe Hidalgo. On Dec. 30, 1853, the current border between Mexico and the United States was established. Just over 29,000 square miles of disputed territory was purchased by the United States from Mexico for $10 million.[18] With the Gadsden Purchase, the western boundary of Doña Ana County stretched from Texas to California, and New Mexico got its bootheel.[19]

 

The Rule of Law v. Six-Shooter Justice: Some Notable Cases

The First Territorial Courts

Over the next six decades, New Mexico law evolved across what was, by any measure, a lawless land. From 1846 to 1912, the rule of law in New Mexico was, at best, a fluid concept.

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The Kearny Code established a Superior Court with appellate jurisdiction and three judicial circuit courts of general jurisdiction: the Central or First District, covering Santa Fe, Santa Ana and San Miguel; the Northern or Second District, covering Taos and Rio Arriba; and the Southeastern or Third District, covering Bernalillo, Valencia and all points south. The judges of the appellate court also served ex officio as judges of the circuit courts and sat in review of their own and their peers’ cases.[20]

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Kearny appointed Joab Houghton chief judge of the Superior Court and assigned him to preside over the First District, the Central Circuit, in Santa Fe. Houghton had arrived in New Mexico from New York in 1844, two years before Kearny’s army. He was later appointed U.S. consul. A civil engineer by training, Houghton later designed the building that served as the territorial statehouse for nearly a century and also worked as a merchant. He had limited, if any, legal training before assuming the bench. But with the experience he gained as a judge, Houghton practiced law until his death in 1876.[21]

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Antonio José Otero was a highly respected man of Spanish descent who presided over the Third District, the Southeastern Circuit. He remained the only person of Spanish heritage to serve on the New Mexico Territorial Supreme Court during its 66-year history. He was highly regarded for his intellect and influence in the community and appears to have been the only one of the three judges who studied law. Otero rarely expressed an opinion without deliberation.[22]

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Otero came from a tradition of civil service. His father, Don Vicente Otero, came to New Mexico from Spain with his wife and became a judge and mayor in Valencia, Nuevo Mexico. The family’s political tradition continued, and Antonio’s son, Miguel A. Otero, was appointed the 15th governor of New Mexico by President McKinley on June 2, 1897.[23]

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Charles “Don Carlos” Beaubien was a wealthy French-Canadian fur trader and pioneer who arrived in Taos in 1823 and eventually petitioned to become a Mexican citizen. He had no real legal training, but he was appointed a Mexican justice of the peace in 1844.[24] With Kearny’s appointment, Beaubien presided over the Second District, the Northern Circuit, in Taos. Though he lacked formal legal training, he was chosen by Kearny for his influence, honesty and status as a local landowner.[25]

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By law, “each judge shall hold three courts a year in each county of his circuit, and the three judges as a superior court shall hold two courts in each circuit every year.”[26] Once convened, “justice” was swift.

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At the new American court’s first session in Taos in April 1847, Judge Beaubien tried 17 men for murder, five for high treason and 17 for larceny, convicting 15 of murder, one of treason and six of larceny. The court did this in 15 working days, setting a record for speedy disposition that later sessions probably never equaled. And its dispositions were final: Every man convicted of homicide was hanged before even a transcript for appeal could have been written.[27] Most of Beaubien’s trials that April stemmed from the same event.

 

The Taos Revolt

Charles Bent was appointed governor by Gen. Kearny in the first days of the occupation. Within months, rumors circulated that the newly formed American government would be overthrown in a coup by native New Mexicans. The cycle of rebellion that had marked the region since Spanish arrival continued. The ensuing events became known as the Taos Revolt of 1847, and the resulting trials were among the first undertaken by the new American government.[28][77]

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On Jan. 19, 1847, Charles Bent was scalped and murdered by a mob, along with other government officials, in Taos. Among those also killed was Beaubien’s son, Narcisco.[29] Those in the resistance took over the San Jeronimo Church in Taos, and a two-day battle ensued. The Americans, however, succeeded in crushing the resistance. Antonio Maria Trujillo, a native of Santa Fe and former Mexican inspector of arms, along with several others, was arrested and put on trial for treason.[30]

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Taos was in Judge Beaubien’s district, but because of Beaubien’s personal interest, Chief Justice Houghton conducted some of the trials, most notably that of Antonio Maria Trujillo, in Santa Fe. Many prominent citizens attended the trial, including Judge Beaubien and the children and siblings of the murdered governor. Relatives of the dead were on the jury. Within minutes, Trujillo was found guilty.[31] Chief Justice Houghton, in passing sentence, said: “Your age and gray hairs have excited the sympathy of both the court and the jury ... yet have you been found guilty of the crime alleged.” The judge then sentenced Trujillo to death.[32]

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In fulfilling his duty to impose the sentence, Judge Houghton concluded:

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“And there only now remains to the Court the painful duty of passing upon you the sentence of the law which is, that you be taken hence to prison there to remain until Friday the 16th day of April next. And that at 2 o’clock in the afternoon of that day you be taken thence to the place of execution and then be hanged by the neck till you are dead! dead! dead! and may the Almighty God have mercy on your soul.”[33]

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But Houghton then immediately joined the U.S. attorney, the defense attorney, most of the jurors and a number of other citizens in urging that the execution be suspended until the president of the United States could be petitioned for a pardon because of Trujillo’s age and infirmity. The president declined, apparently on the ground that the insurgents were not citizens of the United States, but suggested that the governor might properly grant such a pardon. That suggestion was promptly acted on, and the old man’s life was spared.[34]

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Chief Justice Houghton also figured prominently in the quest for statehood in 1850. He championed continued territorial status over statehood and was staunchly anti-slavery. He and his delegates to the constitutional convention formed the majority. He drafted the constitution, which contained declarations against slavery in New Mexico. His nemesis was West Point graduate and attorney Richard H. Weightman, leader of the statehood party. Weightman attacked Houghton in fiery speeches across the territory and leveled charges with the military governor aimed at removing him from office.[35] Weightman also accused Houghton, in open court, of presiding over a case in which he held a personal interest. Houghton’s response was to challenge Weightman to a duel.[36]

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The two men met in an arroyo on Bishop’s Lodge Road, where Zozobra burns today. When the command came, only Weightman fired. He missed. Houghton, “who was a bit deaf,” shouted that he had not heard the command. Weightman threw up his hands and shouted, “All right, you have the right to shoot. Fire now.”[37] The seconds[38] rushed in. Weightman offered a sort of apology, which Houghton accepted, after a fashion.[39] Both men walked away and lived out their lives.

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Attorney Weightman was no stranger to duels over honor. Before the episode with Judge Houghton, he was challenged by a subordinate in 1846 while serving with Kearny’s forces, which had marched to El Paso in pursuit of the Mexicans. He learned that one of his junior officers, Lt. Edmund Chouteau, had been speaking harshly against him and confronted him. During their exchange, Chouteau demanded that they meet on the field of honor and settle the affair with pistols.

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Capt. Weightman, never one to back down, quickly agreed. But Chouteau, carrying a wounded right arm in a sling, asked that the duel be postponed until he healed.

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“Oh, that’s all right,” Weightman replied. “I’ll hold my right hand behind me and we’ll shoot with our left hands.” As with the later episode involving Judge Houghton, seconds intervened and the duel was averted.

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In addition to practicing law, Weightman ran a small newspaper, El Amigo del Pais. In 1854, he published criticisms of the popular explorer F.X. Aubry. By chance, the two men met on the Santa Fe Plaza[40] and shared drinks at what is now La Fonda. Aubry accused the newspaperman of spreading lies. The encounter reached a boiling point. Aubry threw a glass of whiskey in Weightman’s face, produced a pistol and took aim, but it misfired. Weightman, pulling his Bowie knife, pounced and plunged it into Aubry’s heart, killing him.[41][42] Judge Kirby Benedict presided over the trial. Benedict skillfully instructed the jury, and Weightman was acquitted on a claim of self-defense.[43] It was an unpopular verdict. Weightman immediately left New Mexico.

Weightman died 10 years later fighting for the Confederacy in the Battle of Wilson’s Creek.[44]

 

Kirby Benedict

Kirby Benedict practiced law in Illinois with Abraham Lincoln and Stephen Douglas. Through their efforts, while both represented Illinois in Congress, Benedict was appointed in 1853 to the New Mexico territorial Supreme Court by President Franklin Pierce and elevated to chief justice by President James Buchanan five years later.[45]

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While lauded as the civil law of the land, the Kearny Code was always subservient to military rule in the territory. Never was that clearer than during the Civil War. New Mexico was placed under martial law, and most civil rights were suspended. Both the public and the courts complained. When Benedict accused then-commanding Gen. James H. Carleton of graft and corruption in his handling of the Navajo, Carleton and others demanded that President Lincoln remove him from office, charging Benedict with “incompetence and addiction to drink.” That charge was not uncommon. Lincoln, ever a loyal friend, refused to remove him from the bench and famously responded, “Gentlemen, he may imbibe to excess, but Benedict drunk knows more law than all the others on the bench in New Mexico sober.”[46]

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Kirby Benedict was known for his direct and unvarnished administration of justice. While sentencing Jose Maria Martin for murder, Benedict called out the condemned man’s name and said: “You have been indicted, tried and convicted by a jury of your countrymen of the crime of murder. And the Court is now about to pass upon you the dread sentence of the law.” Benedict went on: “The flowers will not bloom for you, Jose Maria Martin; the birds will not carol for you, Jose Maria Martin; when these things come to gladden the senses of men, you will be occupying a space about six by two beneath the sod, and the green grass and those beautiful flowers will be growing above your lowly head ...”[47]

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After Lincoln, his friend and protector, was assassinated on April 14, 1865, Benedict’s addiction to drink and rude behavior led not only to his removal from the court but later to his suspension from the practice of law in 1871 and, three years later, to his death in the street.[48][49]

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Some other figures in New Mexico legal history deserve mention.

 

Elfego Baca and the Frisco War

Elfego Baca was born in Socorro in 1865. After a stint in Kansas as a boy, the family returned to Socorro. At 19, Elfego reportedly bought a badge and deputized himself to fight local crime. Thus began a life as a gunfighter, law enforcement officer, lawyer and politician in New Mexico. Elfego became an American folk hero in the later years of the territorial frontier. His goal in life was to be a peace officer, and for “the outlaws to hear [his] steps a block away.” In 1884, Elfego was involved in “the most unequal gunfight in the history of the American West.”[50] By his own account, the 5-foot-7 Elfego fought off 80 armed cowboys — though witnesses claimed there were only 40 — who laid siege to him while he was holed up in a cabin after arresting one of their crew. The gunfight, in present-day Reserve, became known as the Frisco War.

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Another account held that while practicing law in Albuquerque, Baca received a telegram from a client in El Paso, Texas. “Need you at once,” it said. “Have just been charged with murder,” to which Baca responded: “Leaving at once with three eyewitnesses.”[51] In 1959, Walt Disney produced The Nine Lives of Elfego Baca, a television series later converted into a feature film about his life.[52]

 

The Santa Fe Ring

When Kirby Benedict was forced off the bench, John P. Slough, an ardent Democrat, replaced him, but not for long. In 1867, Slough authored an opinion in Heredia v. Garcia, striking down the long-standing practice of debt peonage in New Mexico.[78] Later, in United States v. Benigno Ortiz, Slough declared that under the Treaty of Guadalupe Hidalgo, native peoples had all the rights of citizenship, including the right to vote. Both were unpopular decisions.

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William Rynerson, a Republican member of the legislature, introduced legislation to censure Slough for unprofessional conduct. The two exchanged sharp barbs at the Exchange Hotel in Santa Fe, now the site of La Fonda, on Dec. 14, 1867. The next day, Rynerson confronted Slough in the street demanding an apology while pulling a revolver from his coat. Slough yelled, “Shoot and be damned!” Rynerson shot the chief justice dead. It is unclear whether Slough pulled a derringer. Regardless, the jury at Rynerson’s trial was instructed that if Slough had slandered and threatened Rynerson, then the case was one of self-defense. Rynerson was acquitted.[53]

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Slough’s killing is regarded as the beginning of the Santa Fe Ring, which effectively operated as a shadow government in New Mexico for years to come. In 1876, Rynerson was appointed district attorney for the Third District, which put him in a position to be directly involved in the Lincoln County War.[54]

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The Santa Fe Ring was a powerful, informal alliance of mostly Republican lawyers, politicians, land speculators and businessmen who dominated New Mexico Territory’s economic and political life from the late 1860s through the early 1900s. The Ring used legal manipulation, political influence and occasional intimidation to amass enormous wealth, especially through control of Spanish and Mexican land grants. Its existence and influence were felt and feared.

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Under Spanish and Mexican rule, vast tracts of land were granted to individuals and communities. The 1848 Treaty of Guadalupe Hidalgo guaranteed that the United States would respect the grants, but the confirmation process proved chaotic and corrupt.

Ambitious lawyers and speculators arrived after the Civil War, seeing opportunity in unclear titles and impoverished Hispanic grant heirs. By purchasing fractions of grants for pennies on the dollar, or simply forging documents, they positioned themselves to profit when the grants were finally confirmed by the U.S. government.[55]

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Thomas Benton Catron was the undisputed boss of the Santa Fe Ring. A Tennessee-born lawyer who arrived in 1866, Catron eventually became the largest private landowner in U.S. history by amassing more than 3 million acres contained in at least 34 Spanish and Mexican land grants and many Indigenous lands.[56] He later served as one of New Mexico’s original senators after statehood.[57]

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Catron’s and the Santa Fe Ring’s arch-nemesis was LeBaron Bradford Prince. To the Santa Fe Ring and its allies, Prince was the enemy. To most modern New Mexico historians and many Hispanic families whose land grants he tried to protect, he was a rare example of an honest territorial official who risked his career to fight one of the most powerful political machines in American history. In short, if Thomas Benton Catron was the undisputed “boss” of the Santa Fe Ring, LeBaron Bradford Prince was the one high official who looked him in the eye and said “no” again and again, at great personal cost.[58]

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Because many Ring members simultaneously held public office, they could steer land grant cases toward favorable courts, appoint sympathetic surveyors, and delay or accelerate confirmation to squeeze out legitimate heirs.[59]

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By the 1870s, the Ring effectively controlled the territorial legislature, the judicial system — Catron bragged he could “name every judge” — the Republican Party, the lucrative Santa Fe Trail trade and, later, Atchison, Topeka and Santa Fe Railway contracts.[60]

The most infamous land-grant manipulations involved the 1.7 million-acre Maxwell Land Grant, the Tierra Amarilla Grant and grabs of Pueblo Indian lands.

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The Ring’s reach extended into violent episodes, including the Colfax County War — a range war sparked when Ring-backed landowners tried to evict settlers on the Maxwell Grant, and in which the Rev. Franklin J. Tolby was murdered, touching off years of bloodshed — and the Lincoln County War of 1877-78.

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The Ring faced growing resistance from Hispanic voters and native Nuevo Mexicanos. Las Gorras Blancas, or “White Caps,” was a night-riding vigilante group that cut fences and burned barns on Ring-controlled grants in the late 1880s and early 1890s.

Populists, Republicans and Democrats repeatedly accused the Ring of blocking statehood because territorial status allowed greater federal patronage and fewer checks on corruption. National newspapers sensationalized the Ring as proof that New Mexico was too lawless and corrupt for statehood.[61]

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Though its era and influence largely ended after the 1885 appointment of Gov. E.G. Ross, once a Republican senator from Kansas but later a convert to the Democratic Party,[62] and with statehood in 1912, the Santa Fe Ring remains one of the most successful and notorious examples of organized corruption in American territorial history.

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During that time, “justice” and “right and wrong” took a back seat to whose side one was on and who could shoot first and straightest.[63] Former Chief Judge William P. Johnson aptly observed in Law for a Lawless Land: New Mexico’s Federal Judiciary: “There was a lot of injustice — maybe you can call it ‘gun smoke justice.’ The Rule of Law was non-existent during that period.”[64]

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Thomas Catron remained the Ring’s central figure until his death on May 21, 1921, serving as one of New Mexico’s first U.S. senators after statehood. By then, the Santa Fe Ring’s power had eroded, but it left a lasting imprint on New Mexico. When Catron died, the Santa Fe New Mexican commented: “The appellation, ‘boss’ complimented instead of offending him; political power was meat and drink to him.”[65]

 

Lincoln County War and Billy the Kid

The Lincoln County War unfolded in 1877 and 1878. Often romanticized as a cattle feud involving Billy the Kid, it was fueled in part by the Ring-allied Murphy-Dolan faction, backed by Catron and the Santa Fe machine, against independent ranchers and the Tunstall-McSween group.

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In his thorough work on the subject, William A. Keleher observed: “The Lincoln County War was a vast and complicated event, or series of events ... It was a young man’s war, inaugurated and carried on sometimes unwittingly, by men of strong and determined character, but distorted vision. Few participants were willing to give an inch of ground, or take a step toward the peaceful settlement of controversies.”[66]

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On April 1, 1878, Sheriff William Brady and Deputy George Hindman were gunned down in broad daylight on the main street of Lincoln. Just 40 days earlier, John H. Tunstall had been murdered by a posse organized by Brady. Silver City native William Bonney, also known as Billy the Kid,[67] and several others were quickly accused of killing the two officers. In a letter published April 13, 1878, in the Las Vegas Gazette, it was noted: “Killing people in Lincoln is the leading industry at the present time. They kill anybody, native or stranger, with or without cause according to circumstances and inclination.”[68]

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The Kid was ultimately arrested and charged. After his conviction at Mesilla for killing Sheriff Brady, Bonney was held at the Lincoln County jail. Just before his date with the hangman’s noose, he killed two deputies during a daring daylight jailbreak on April 28, 1881, and fled on a stolen horse.[69]

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The Kid was later tracked down and shot to death at Fort Sumner by Lincoln County Sheriff Pat Garrett, who had been elected for that purpose. The coroner’s jury — which met at the house where the shooting occurred while the outlaw’s body still lay on the floor — ruled that “the act of Garrett was justifiable homicide and we are unanimously of the opinion that the gratitude of all the community is due to said Garrett for his deed and that it is worthy of being compensated.”[70] The Lincoln County War was over. Garrett left office, took up ranching and later returned to Texas, joining the Texas Rangers.

 

Col. Albert Fountain, Pat Garrett, Albert B. Fall and the Making of Otero and McKinley Counties

Col. Albert Jennings Fountain was an attorney who defended Billy the Kid in his 1881 trial for the murder of Sheriff William Brady. Fountain was a staunch Republican from Doña Ana County and a member of the New Mexico House of Representatives. That put him at odds with equally powerful Democrats: rancher Oliver Lee and attorney Albert B. Fall.[71]

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On Jan. 31, 1896, Col. Fountain and his 9-year-old son, Henry, were traveling in a buckboard from White Oaks back to their home in Mesilla. Earlier that month, Fountain had obtained indictments naming 22 defendants operating in a cattle-rustling ring in Doña Ana County. Among them was Oliver Lee, the state Senate president pro tempore.

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On Feb. 1, after staying the night at Tularosa, the colonel and a stage driver discussed the fact that he and Henry were being followed by three men on horseback. Later that day, the two Fountains mysteriously disappeared about 45 miles east of Las Cruces at Chalk Hill.[72] Search parties found blood on the desert floor and Fountain’s buckboard nearby. Neither Fountain nor Henry was ever seen again.

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Chalk Hill was in Doña Ana County. Pat Garrett, who had shot Billy the Kid in April 1881, was asked to return to Doña Ana County as sheriff to solve the murders. He accepted and renounced his affiliation as a Democrat in favor of the Republican Party. After an extensive investigation, Garrett secured murder warrants from Judge Frank W. Parker, without convening a grand jury, naming Lee and two cowboys, Gililland and McNew — both also named in Fountain’s original 22 indictments.

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Oliver Lee was not going to surrender. He was convinced Garrett was out to kill him “while resisting arrest.” After weeks of cat-and-mouse maneuvering, a gunfight erupted at Wildy Well, where Garrett and a posse caught up with Lee and Gililland. Deputy Sheriff Kent Kearney was killed. Lee and Gililland escaped, believing they had killed Garrett. Kearney’s death resulted in new murder indictments. The two fugitives remained on the run, and Lee mounted a publicity campaign against Garrett on the claim that he was out to commit murder, citing the shooting of Billy the Kid as evidence of that propensity.

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Attorney Albert B. Fall, the Democrat acting as counsel for Lee and Gililland, had a plan. In a series of masterfully executed political maneuvers, Fall, with the aid of W.A. Hawkins, convinced longtime enemy Republican Tom Catron and Republican Gov. Miguel A. Otero — who had his own feud with Catron — to support a bill creating two new counties: McKinley, a long-held pet project of Catron, and Otero, flattering the governor. The bill passed and was signed in 1899.

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No one involved realized Fall’s true intent: The western boundary of the newly formed Otero County was just west of Chalk Hill, placing the site of the charged murders of Fountain and Henry outside the jurisdiction of Doña Ana County and its sheriff.[73] The tale was judicially noticed and extensively discussed by U.S. District Judge James O. Browning in Coffey v. United States, 906 F. Supp. 2d 1114, 1128, 2012 WL 5995622 (D.N.M. 2012), footnote 17.

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The trial was held at Hillsboro beginning May 25, 1899. It proved to be a trial over power between Thomas Catron and Albert B. Fall. At the close of the evidence, after 18 days of trial, Fall was exhausted. He asked his associates to close the case, and he left the courthouse.

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Oliver Lee was terrified. He chased Fall to his hotel and begged him to deliver the closing argument. Fall obliged and returned. His closing remarks were: “Gentlemen of the jury: The prosecution of Oliver Lee is the result of a conspiracy to send an innocent man to the gallows. The district attorney is involved in that conspiracy. The Honorable Thomas B. Catron is involved in that conspiracy. His honor on the bench is involved in that conspiracy.” At that, Judge Parker sprang to his feet, gavel banging: “Mr. Fall, unless you withdraw your remarks about the court from the jury immediately, I shall send you to jail for contempt.” Fall replied, “Your honor will not send me to jail for contempt until I am through addressing this jury. When I finish my argument, you may do whatever you wish.” Fall finished his argument and left the courtroom. Within minutes, Lee was acquitted.[74]

Stripped of his jurisdiction, Pat Garrett left office, served a stint as the U.S. customs agent in El Paso and ranched in the Organ Mountains. Garrett, the famous Old West lawman who killed Billy the Kid and arrested and prosecuted Oliver Lee, was shot in the back of the head on Feb. 29, 1908, at age 57, while relieving himself by a roadside near Las Cruces, by one of Oliver Lee’s cowboys. Albert B. Fall defended Wayne Brazel, who was acquitted on a theory of self-defense.[75]

 

New Mexico Bar Association Founded

These characters and their stories are compelling, but they are not representative of the New Mexico bench and bar as a whole during the territorial period. Many lawyers and judges of the era valued the rule of law, professionalism and the advancement of the legal profession.

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On Jan. 19, 1886, a group of 19 attorneys met in Santa Fe and organized the Bar Association of the Territory of New Mexico. William Vincent was elected its first president.

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Just 11 days later, membership had grown to 33 attorneys, who gathered again in Santa Fe for the first annual meeting of the voluntary bar association.

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The organization's constitution outlined its purpose:

• To cultivate the science of jurisprudence

• To promote reform in the law

• To facilitate the administration of justice

• To elevate the standard of integrity, honor and courtesy

• To encourage a thorough and liberal legal education

• To cherish a spirit of brotherhood among its members

 

An early report to the Bar observes: "Unless we do cultivate the science of jurisprudence, and cultivate it as a science, we may as well make a bonfire of our reports and our cyclopedias, our Blackstone and our Kent, and fill our shelves with works on psychology, hypnotism and the theory of chance ..."

 

Fin del Acto 2

Following Kearny’s march into Santa Fe, New Mexico’s quest for statehood continued for another 62 years and required the introduction of more than four dozen authorizing bills.[76] New Mexico remained a territory longer than any other contiguous territory in the Union. The territory saw fortunes made and lost, bloodshed in quantity and the rule of law honored mostly in the breach. By 1911, the tide was rising and statehood was in sight. On Jan. 6, 1912, a new star was added to the American flag as New Mexico became the 47th state in the Union, and the stage was set for Act 3.