Metropolitan News-Enterprise

Tuesday, August 1, 2006

Page 7

PERSPECTIVES (Column)

1856: Future L.A. District Attorney Fails to Quell ‘Insurrection’ by Vigilantes

By ROGER M. GRACE

Fifth in a Series

Minute details can hardly be expected in the barebones biographies of the 40 men who served as Los Angeles County district attorney that appear on the DA’s website. But to say of Volney E. Howard (district attorney in 1864-68 and 1874-76) that he “practiced law in San Francisco, but was asked to leave after he opposed the local vigilance committee” is perhaps a bit too general.

It’s sort of like saying that someone named Douglas MacArthur participated in the Korean War but came back home before the hostilities ended.

Howard did more than oppose the vigilantes. He was appointed by California’s governor in 1856 to lead military efforts to crush them. The reign of the vigilantes included trials and hangings by them—even an arrest by them of a justice (later chief justice) of the California Supreme Court. As it turned out, Howard—lacking soldiers and weapons—failed. He left the Bay Area, returned to it, then departed again. Animosity toward him among the citizenry was intense in light of a broad perception that the vigilantes had functioned as crime-thwarting heroes.

Although humiliation did befall Howard in 1856, victories…many of them… were his in a varied career that included service in the Mississippi Legislature (1836), in Congress as a representative from Texas (1849-53), as a delegate to the constitutional conventions both of Texas (1845) and California (1878-79), and as one of the first two judges of the Los Angeles Superior Court (1880-84). He was a charter member of the Los Angeles Bar Assn. in 1878 and was elected at the first meeting as one of the two vice presidents.

A distinction that could have been his was that of being the first attorney general of the State of Texas. The first governor, James Pinckney Henderson, appointed him to that post on Feb. 27, 1846, but Howard, having been elected to the state House of Representatives, opted to serve in that body, instead. Too, he was nominated by the state Democratic convention in 1880 as a candidate for the California Supreme Court, but decided to run for the new Los Angeles Superior Court.

While Howard was defeated in races for a congressional seat from Mississippi in 1840 and from Texas in 1852, he was lent an exceedingly high honor by Texas in 1876: Howard County was named after him.

But getting back to his battle against the vigilantes...the “Vigilance Committee” had declared martial law, and was ruling San Francisco. They hanged two men who had been tried on May 20, 1856 and adjudged to be murderers….that trial being conducted by the committee. One of the men had been tried previously by a legally constituted jury; it was unable to reach a verdict and he was incarcerated while awaiting a new trial.

Gov. John Neely Johnson, a member of the “Know Nothing” Party, knew enough to figure out that mob rule could not be tolerated. On June 3, he declared that a state of insurrection existed.

A few days prior to the hangings, he had appointed William Tecumseh Sherman—who would later become a prominent general in the Union Army—as major-general of the division of the state militia in the area that included San Francisco. He now ordered Sherman to do battle with the insurgents and decreed that men report to Sherman for military duty. The decree was largely ignored.

Sherman resigned when he learned that the U.S. Army would not lend him munitions. The resignation was tendered in writing at a meeting with Johnson, Supreme Court Justice David Terry, and others in a San Francisco hotel room. In “Recollections of California, 1846-1861,” Sherman recounts:

“Seeing that we were powerless for good, and that violent counsels would prevail under the influence of Terry and others, I sat down at the table, and wrote my resignation, which Johnson accepted in a complimentary note on the spot, and at the same time he appointed to my place General Volney E. Howard, then present, a lawyer who had once been a member of Congress from Texas, and who was expected to drive the d——d pork-merchants into the bay at short notice.”

As it turned out, he says, Howard “continued the organization of militia which I had begun; succeeded in getting a few arms from the country; but one day the Vigilance Committee sallied from their armories, captured the arms of the ‘Law-and-Order party,’ put some of their men into prison, while General Howard, with others, escaped to the country; after which the Vigilance Committee had it all their own way.”

The incident involving Terry occurred on or about June 21 (reports differ as to the date) and began in the office of the United States Navy agent where Terry was discussing with him and others the need for action against the vigilantes. A vigilante, Stirling A. Hopkins (who had acted as hangman on May 20), entered to arrest one of those present, Rube Maloney, suspected of attempting to transport arms into San Francisco for use by the state militia. Hopkins’ authority was contested, and he left.

Hopkins secured reinforcements, encountered Terry, Maloney and others on the street. Some accounts refer to cocked pistols having been brandished by the small “law and order” contingency. A scuffle ensued.

As recited by James Ayers in “Gold And Sunshine, Reminiscences of Early California” (1922), Hopkins “undertook to lay hands on Judge Terry.” He continues:

“The Judge at once drew his knife and plunged it into the neck of the emissary. He fell, and the whole party, knowing that they would soon be hunted down by the Committee, hastened to the [Law and Order Party’s] armory.”

Eventually, the armory was surrounded by vigilantes. But before that occurred, only two vigilantes were there to prevent ingress or egress. As Hubert Howe Bancroft tells it in one of the volumes of his historical works:

“Presently a pompous, portly man made his appearance at the armory door and demanded admittance. He was ordered to stand back.

“ ‘Do you know who I am?’ asked the pompous, portly man.

“ ‘I don’t care a damn who you are,’ was the plain though somewhat profane reply.

“ ‘I am Major-general Volney E. Howard,’ whispered the commander of the law and order forces. ‘Do you want to see this city laid in ashes?’

“ ‘You cannot enter here.’

“The pompous, portly man stood aside, and another applicant for admission. appeared in hot haste at the door.’”

The vigilantes converged on the armory. James O’Meara, in “The Vigilance Committee of 1856” (1887), recounts:

“The Law and Order troops were less than three hundred strong. The Vigilance force numbered several thousand. A surrender was demanded. It would have been folly to resist, and with Terry and Maloney as prisoners, and the Law and Order troops as prisoners of war, so to say, the Vigilance forces marched back to their fortified quarters.”

Initial news reports heralded the death of Hopkins—who, in fact, survived. The Placerville Mountain Democrat’s issue of June 28 says:

“Rarely have we witnessed more intense excitement than was manifested in our city on Saturday last, when the startling intelligence was received that one of the Judges of the Supreme Court had killed, ‘in cold blood,’ the Marshal of the Vigilance Committee. It was announced that the Marshal died instantly; that it was a cold-blooded assassination; that he had given the Judge no provocation for the attack. A feeling of desperation, of gloom, of dismay seemed to pervade all classes.”

The same issue reports that Howard had visited the city that week, commenting:

“We are unacquainted with the object of his visit, though Rumor, with her usual accuracy, spread a report that he came up to organize a regiment to march against the Vigilance Committee. To no one, so far as we could learn, did he intimate any thing of the kind. We are of the opinion that the men of the mountains would not volunteer on either side at present.”

Howard was in Placerville on the Wednesday following the Saturday stabbing because he had decided to go on a speaking tour to rouse support for military efforts against the vigilantes. That the Placerville newspaper did not appreciate his objective is understood when it’s considered that there was no telegraph line to that city until 1860.

On Monday of that week, Howard was in Sacramento. The audience booed and hooted him and shouted insults—and he returned verbal volleys, including the accusation that “You are a set of vile cowards.”

This comment appears in a Sacramento Union editorial:

“Mr. Howard instead of arousing any enthusiasm for the cause of despotic rule and the butchery of the people, which he advocated, succeeded most effectively in bringing the law and murder party lower in the estimation of good men than before, and completely floored Major-general Volney E. Howard in their eyes.”

Howard is quoted by Bancroft as telling a small gathering in San Rafael, with reference to Terry:

“What has he done to be treated in the manner he is treated? I say, nothing. I have known him since he was a boy, and he is above reproach. The man Hopkins they prate so much about, with a scratch on his neck, I say a mere scratch, made by Terry it is true, but it is also true that he had a right to do it, a right to defend himself. For this he is incarcerated in a dungeon, without even being allowed the consoling presence of his dear wife. Did the annals of history ever show such cruelty, such revenge? Why, the French revolution was nothing [compared] to it!”

Howard’s reference to a “scratch on the neck” differs from Ayer’s recitation that “[f]or days” Hopkins “fluctuated between life and death,” as well as that of L.H. Woolley, a member of the Vigilance Committee. In “California, 1849-1913,” published in 1913, Woolley says:

 “[The] wound…was four inches deep and caused considerable hemorrhage. The blade struck Hopkins near the collar bone and severed parts of the left carotid artery and penetrated the gullet.”

Other accounts are to like effect. Howard did, it would seem, grossly minimize the extent of the injury. Whether Terry’s action was a matter of self defense or a flash of temper will never be determinable—though Terry’s temper was legendary. (He was later to kill a United States senator in a duel, and in 1889 died from shots fired at him by a bodyguard when he assaulted a member of the United States Supreme Court.)

The vigilante recounts:

“Terry was held by the Vigilance Committee until August 7th and charged with attempt to murder. Mr. Hopkins recovered and Terry, after a fair and impartial trial, was discharged from custody, though many were dissatisfied at his dismissal and claimed that he should have been held.”

The committee disbanded on Aug. 18, in triumph. Its reign ended in a parade in which as many as 7,000 persons participated.

Howard, viewed as a foe of the victorious crime-fighters, thought it might be better to relocate for awhile. According his obituary in the Los Angeles Times on May 15, 1889:

“Gen. Howard removed to Sacramento, where he remained until 1858, when he returned to Oakland, and resumed the practice of law. But the part he had taken against the vigilantes had made him many enemies in San Francisco, and in 1881, Gen Howard removed to Los Angeles, where he has since resided.”

But Volney Howard had much yet to do before he was to become the subject of an obituary…including service as district attorney of Los Angeles County. There will be more about Howard in the next column.

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