Part 8

I went, with my wife and brother, A. E. Mills, in my ambulance to attend court at San Elezario, which was then the county seat. There was a State law against carrying arms, “except when traveling,” and we went armed. Immediately upon arriving at the county seat my brother and myself were arrested by Atkinson and his police and taken from the ambulance, leaving Mrs. Mills alone, and carried toward the jail. At that time the Mexican people thoroughly hated Atkinson and his party, but were devoted to me and my friends. There was some halting and parleying before we reached the jail door, and we saw groups of Mexicans consulting here and there and occasionally one with arms. I remember my brother whispering to me: “These people will take us out of jail before morning, but we will probably be dead.”

A Mexican, Maximo Aranda, who was justice of the peace, summoned Atkinson to bring his prisoners before him, and immediately ordered our release upon the ground that we were travelers and had a right to carry arms.

That night I went alone and unarmed to the house of a respectable citizen, where I had been invited to a party. I took a seat at one side of the room. The District Judge, District Attorney, Sheriff and Clerk of the Court, all enemies of mine, were dancing. When all were seated and the music ceased Atkinson stood before me, one hand on his six-shooter and the other in my face, and called me many pet names, the mildest of which were “coward” and “liar,” and threatened to shoot me if I spoke or moved.

I remained silent, and my assailant was called away. Presently Johnnie Hale sat down beside me and whispered that he had two pistols and would give me one if I would not use it unless attacked and would go away with him. I accepted, and we left the house.

Court was in session, and the next day the grand jury presented an indictment against Atkinson for aggravated assault. The District Attorney declined to prosecute, and James A. Zabriskie volunteered to take his place. Will the reader believe that that “carpetbag” Judge (from Canada), appointed by Governor Davis to administer justice over a people he had never seen or heard of, forbade Zabriskie to prosecute for aggravated assault, and declared from the bench that he knew it was merely a simple assault _because he witnessed it himself_! I take pleasure in recording the fact that this Judge was removed from office by the Legislature of Texas. Atkinson’s violent death is recorded in my account of the San Elezario mob, and that of Johnnie Hale in the account of the killing of Kramkrauer, Campbell, Hale and a Mexican at El Paso in 1881.

FROM EL PASO TO AUSTIN—STAGE DRIVERS.

In February, 1872, we went in the stage coach from El Paso to Austin. The party consisted of Mrs. Mills, myself, Charles H. Howard and a young St. Louis lawyer named Bowman, who was taking his first lessons in frontier life and customs.

If I desired to learn any man’s true character I would want to take a long day and night journey with him in a stage coach. Want of sleep and other annoyances, vexations and privations bring out at times all the ill-nature and selfishness one may possess; and, again, when everything goes smoothly and all are moving leisurely and silently over some long stretch of prairie or plain and the weather is pleasant, men appear to cast all cares and reserve to the wind and converse with each other more frankly and confidentially than elsewhere. At least, that has been my experience and observation.

Here and during other like experiences Mrs. Mills made the acquaintance of the stage driver, a character difficult to describe and now almost extinct.

He possessed the courage of the soldier and something more. The private soldier goes where he is told to march, and fights when he is ordered, but he has little anxiety or responsibility; but the stage driver in those times had to be as alert and thoughtful as a General. There was not only his duty to his employers but his responsibility for the mails (he was a sworn officer of the Government), but the lives of the passengers often depended upon his knowledge of the country and of the Indian character, and his quick and correct judgment as to what to do in emergencies. Like the sailor, he was something of a fatalist, but he believed in using all possible means to protect himself and those under his charge.

Your stage driver was usually of a serious, almost sad disposition; inclined to be reticent, particularly about himself and his former life, and his surname was seldom mentioned by himself or his associates. He was known as “Bill” or “Dave” or “Bobo” or “Buckskin,” or some such sobriquet. When, however, he could be induced to talk about himself as a stage driver his stories were always interesting and sometimes thrilling. There was occasionally a liar among them, but most of them had really experienced such serious adventures and “hair-breadth scapes” that it was not necessary for them to draw upon their imaginations.

Rough, profane and unclean of speech among their own sex, they were remarkably courteous to lady passengers and ever thoughtful of their comfort and feelings, and more than once, on arriving at a station where the drivers were to be changed, I have heard one whisper to another: “Remember, Sandy, there is a little lady in the coach.” This was sufficient.

During the most interesting portion of this trip we had two drivers, “Uncle Billy,” who was going to San Antonio on leave, and “Bobo,” the regular driver. They vied with each other in trying to make everything pleasant for Mrs. Mills. They would prepare the high driver’s seat with cushions and blankets and assist her to mount it, and for hours would call her attention to points of interest or entertain her with stories of their experiences, humorous or tragic.

One morning just after daybreak Bobo halted the coach and said: “Gentlemen, get your guns ready; the prints of moccasined feet here are as thick as turkey tracks.”

And so it was, and the tracks were fresh. A large party of Indians had very recently crossed the road, but we saw nor heard more about them.

At “Head of Concho” we came upon a herd of buffalo, and, of course, we dismounted and wantonly fired into them, with what effect I do not know, except that some one wounded an immense bull so seriously that he became angry or sullen and refused to run away as the others did. We, with our deadly Winchesters, ceased firing at him, as he was of no use to us, but not so with the young St. Louis lawyer. He wanted to do something that he could tell about at home, and so he advanced upon the irate animal with his little thirty-two calibre pistol, firing as he went. He was encouraged and animated by the shouts of Bobo and Uncle Billy: “Charge him, mister,” “You’ve got him,” “The next shot will fetch him,” etc.

Mrs. Mills said: “Why, Uncle Billy, that animal will kill the man! Call him back!” Uncle Billy said: “Why, _of course_, he’ll kill him. Now you just watch, and you’ll see fine fun. He’ll toss that little lawyer higher’n the top of this coach.” And yet Uncle Billy and Bobo were not cruel men.

SOME TEXAS LAWYERS.

In 1871 I held a judgment for $50,000 which I had obtained in the El Paso District Court against a citizen of El Paso County for having caused my arrest and imprisonment by the Confederates in 1861, as related in my war story. This judgment being in full force and I being in Austin, my friend, Major De Normandie, then Clerk of the Supreme Court, introduced me to a prominent attorney of De Witt County, Texas, who informed me that the defendant owned property in De Witt County out of which my judgment, or a large portion of it, could be satisfied. I implored this attorney to act for me in De Witt County, and on my return home I sent him, at his request, a certified copy of the judgment and received a letter from him dated June 7th, 1871, informing me that they had written out a levy which they would proceed with in a day or two, and requesting me to send them some money for costs, which I did. After long delay I wrote this attorney, asking to be informed of the result, and he replied that the whole proceeding was a failure because he had dated the levy _on a Sunday_, which mistake vitiated the whole proceeding and that my rights were lost.

He stated that “strange as it might seem” he had been led to make the mistake by an error in an almanac in his office. As this attorney did not suggest any remedy for his own blunder or institute any further proceeding I concluded then, and believe now, that political prejudice or some other unworthy motive had influenced him to act in bad faith with his client. The attorney and the defendant were both Confederates and Democrats, while I was a Union man and a Republican, and much bitter feeling had grown out of the suit and the acts preceding and attending it.

I met this lawyer in Austin a year or so later, and he made no further explanation except to affirm that it “made no difference, because the Supreme Court had decided that my judgment was void.” As a matter of fact, and of record, the Supreme Court had decided that the judgment was valid. And here I will state a fact which I hope the reader will remember when he comes to read the case following this one—_this gentleman was later on elected a Judge of the Supreme Court of Texas_.

My judgment for $50,000 (mentioned in the preceding paragraphs) was in 1868, before the Supreme Court at Austin on writ of error or appeal, or both, taken or claimed to have been taken from the District Court of El Paso County by the defendant. A supersedeas bond for one hundred thousand dollars _damages_, signed by John Hancock and Thomas J. Divine, was filed with the Clerk of the Supreme Court by the appellant’s attorney, whom I will not name here.

When this appeal came on for trial my attorney discovered to his amazement that the words “thousand” and “damages” had been erased on the face of the bond and the words “costs” inserted instead of the word damages.

It is proper to explain to the non-professional reader that this fraud and forgery changed the nature of the bond, so that if I gained the case—and I _did_ gain it—I could recover from the sureties, who were both wealthy men, only one hundred dollars “_costs_,” instead of the full amount of the judgment, namely, fifty thousand dollars “_damages_.” The Judges were, of course, astounded, and called the Clerk, Major de Normandie, who being sworn testified that the record had been borrowed by appellant’s attorney when it was in its original condition, and that when it was returned the erasures and forgery were in the handwriting of said attorney. The guilty attorney was present, but stood mute, offering no explanation or excuse for his acts. The Court, at some length and with strong indignation, rendered its decision dismissing the appeal and leaving my judgment in full force, but the wrong to me had been done, so far as the bond was concerned.

My loss was about forty thousand dollars.

If any one questions any of the above statements he will find abundant proof in the Reports of the Supreme Court of Texas:

Hart vs. Mills, 31st Texas, page 304, and Hart vs. Mills, 38th Texas, pages 513 and 517.

This thing was not done in a corner. Every attorney of that Court knew the facts exactly as I have stated them, and it was a duty they owed to themselves and to the profession to have disbarred the attorney, but he stood fairly well socially and had been a “good” Confederate and Democrat and I was only a frontiersman and Republican, and so _they elected him a Judge of the Supreme Court of Texas_, as had been done with the lawyer in the case mentioned above. I believe there is a legal maxim, or a legal axiom, or a legal _fiction_, that there can be no wrong without a remedy, and I am asked why I did not pursue the remedy. Oh, I don’t know. I suppose every man of affairs has sometimes in his life done or neglected things which he could scarcely explain afterward, even to himself. I was seven hundred miles away, and my attorney was well paid in advance for looking out for my interests, and unless he choose to act I don’t think I could have broken the combination. There are times when even the most energetic men become discouraged and weary of strife, and for a time at least feel like letting things drift as they may.

In 1873 I had a suit pending in court at El Paso involving the title to valuable real estate, and I paid an El Paso attorney $800 to attend to it.

In my absence and without my consent this lawyer compromised me out of court for a worthless consideration, and I lost the property. Of course, I might have repudiated this compromise, but I was handicapped by the fact that the property in question was held in trust for me by my brother, E. A. Mills, and the lawyer had induced him, by claiming to have authority from me, to re-convey the property; and the legal machinery here at that time was such that I thought it hopeless to litigate further.

LITIGATION ABOUT EL PASO PROPERTY.

When the Confederate forces left El Paso and the United States troops took possession, in 1863, such of the county records as had been preserved from destruction were by common consent delivered to me for safe keeping, to be turned over to the proper county officers as soon as such officers should be appointed or elected. This, and my long residence here, gave me the opportunity of becoming the best informed man in El Paso as to titles, boundaries, possession, etc., so that when the railroads and the boom came and city lots became valuable and there was a general shaking up and deciding of titles by many suits in the courts, I was almost a standing witness. I verily believe that more of these cases were decided upon my testimony than on that of any other half dozen witnesses, and all this testimony was given without receiving or expecting a dollar’s compensation. The juries believed me, and so far as I know not even the most zealous lawyer ever questioned my testimony, though there were some “keen encounters of wits.”

In one instance I saved to a certain litigant property on El Paso street now worth fifty thousand dollars simply by producing an ancient deed which I had had in my possession for twenty-five years and had forgotten. The book, “Record of Deeds,” had been destroyed, but the acknowledgment of the vendor was on the deed itself, and the suit was withdrawn.

I believe that in the main these cases were decided according to law, which was the best that could be done; but if, as we are told, there are certain eternal principles of right and justice, higher than those men make for their own convenience, then surely these principles were sometimes violated, for deserving men lost property which by such principles should have been theirs by such trivial neglect as failing to record a deed or to pay taxes or to preserve evidence of occupancy, or some other fact, or worse still, by false testimony.

CONFISCATION—AN EXPLANATION—NOT AN APOLOGY.

All Governments, including the Southern Confederacy, have written in their statute books that whoever engages in rebellion or takes up arms against their authority shall forfeit not only his property but his life.

I am glad now that my Government did not enforce these harsh penalties against any of the Confederates.

In 1864 the United States District Judge for New Mexico, himself a Southern man, held that his Court had the power to libel and confiscate the real estate of such citizens of El Paso County, Texas, as were then in arms against the United States. He based this claim upon an Act of Congress approved March 3d, 1863, which provided that “The jurisdiction of the United States Court for New Mexico is hereby extended over the citizens of El Paso County only in cases not instituted by indictment.”

I, being Collector of Customs, had caused this act to be passed to enable me to condemn and sell goods smuggled into El Paso County (there being then no United States Courts in Texas). I am frank to say that I did not then even dream of the confiscation of any one’s real estate.

The United States Attorney and Marshal for New Mexico came to El Paso and libeled the property of certain leading Confederates and proceeded against it in the United States Court at Mesilla, New Mexico, and certain of these lands and lots were declared forfeited and were sold at El Paso by the United States Marshal, and I purchased a portion of this property, as did others. I paid the Marshal eighteen hundred dollars good and lawful money therefor, and received and recorded his deeds.

I protected the property of some of my Confederate neighbors, Dowell’s and Stephenson’s and others.

Along with what I purchased was a six-eighths’ interest in the El Paso town tract belonging to the Gillett brothers, who were then absent with the Confederate army; but some years later, when they returned to El Paso and we patched up a peace, I proposed to them that if they would join their title with mine I would pay their debts, amounting to a few thousand dollars, which debts were a lien on the property, and we would hold it share and share alike.

This they declined to do, and in the end they lost it all. So did I, for years later the Supreme Court of the United States decided, _not_ that the property was not subject to forfeiture, as all such property certainly was, but simply that the Act of Congress referred to did not confer the jurisdiction claimed by the Court at Mesilla.

Without a murmur I reconveyed all the property to the original owners and lost the eighteen hundred I had paid the Marshal.

Then the Gillett’s creditors sold them out. I had held possession of the town tract and paid taxes on it for five years.

It has been said that I purchased the property of Simon Hart at the confiscation sale. That is not true. I purchased that property at Sheriff’s sale on a judgment for false imprisonment, which I obtained against Hart in a Texas court, which judgment was twice affirmed by the Supreme Court of Texas.

In 1871 I was the owner of a portion of Franklin Heights, of the city of El Paso, then known as Hart Survey, No. 9.

Being in Washington City I met my friend, Gen. Robert B. Mitchell, and gave him a power of attorney to sell the property. He sold to different purchasers, to the amount of $14,000, and we divided the proceeds share and share alike.

The property was then considered valueless by those who knew less than we did, but it is now worth forty-fold what we received for it. Among the purchasers were George W. Gray of Washington City and one Peck of Kansas, and others.

The recording of the deeds in El Paso County aroused the jealousy and hatred of my El Paso enemies, and, heedless of what harm they might do to others so long as there was a prospect of injuring me, they wrote the purchasers that I had no title to Survey No. 9, that the property was worthless, and that I was a swindler.

It is strange that the purchasers took these statements at par, and instead of investigating or communicating with me they sued me in Washington City for the purchase money, charging fraud, and got service on me there. I demurred them out of court, and came home, and being angry with the purchasers I paid no further attention to them or their troubles.

None of them, ever asserted their rights to the property, WHICH THEY COULD HAVE DONE SUCCESSFULLY IF IN TIME.

These strange facts being of record in El Paso County have caused a lot of talk, and many a lawyer has believed he had made an important discovery and has had visions of profitable litigation. I have been interviewed about this transaction one hundred times, more or less.

“STAR” MAIL CONTRACTS—THE FIRST TRUST—1869-70.

After the war I and my El Paso friends became involved in a bitter contest with the San Antonio and El Paso Mail Company, which continued for several years.

At that time the great lines of railroads were reaching out toward the west and southwest, and many mail routes, hundreds of miles in length, were preceding them. These mails were carried in stage coaches, buckboards and on horseback. Millions were expended annually by the Government for this service, and it was harvest time for the two wealthy companies who monopolized the larger routes, the above named company in Texas and another company in the northwest.

This Texas company failed year after year to deliver the mails at El Paso according to their contract, and our people were practically without mail facilities, which was a great privation, and the people complained to the Post Office Department but without avail, because the wealthy company had powerful influence with some of its high officials and a strong lobby in Washington City. Then the El Paso merchants and people held an indignation meeting, denounced the company and appointed Col. Jas. A. Zabriskie and myself to represent them at Washington, and after taking much testimony all along the line we went on our mission at our own expense.

After a careful investigation in Washington City, during which we found more rottenness than we had dreamed of, and in higher places than we had suspected, we secured a hearing before the joint committee of Congress on Retrenchment, composed of seven Senators and fourteen Representatives and the contest began.

Zabriskie and Mills for the complainants, “the prosecution,” and the distinguished Judge Pascal of Texas, and the still more distinguished Jere Black of Maryland for the Mail Company, “the defense.” It was a “go as you please” contest. Three days were consumed in reading testimony, in quarreling and in arguments before that distinguished court or jury, and I flatter myself that we youths from the frontier held our own with these veterans of the Washington bar. (At least I am as proud of what I did there as the average young El Paso lawyer is when he wins a cow case against a railroad or makes a free silver speech.) I had recently been “suspended” as Collector at El Paso, and I charged that the Mail Company had employed Pearson & Williams at El Paso as scavengers to hunt for charges against me.

F. P. Sawyer, the principal man of the Mail Company, was present and took the stand and denied this charge, and stated that “out of consideration for others” he had tried to have me retained in office. On cross examination I led him to repeat these statements _most solemnly_, and then handed to Senator Patterson, the Chairman, the original of the following letter, which he read aloud to the committee:

“Washington, June 2d, 1869.

“W. M. Pearson, Esq., El Paso, Texas.

“Dear Sir: Yours of the 10th instant was this A. M. received and already placiet in Secretary Boutwell’s hands to strengthen those already on file in his office which has as I suppose you have hird removed the greatest man in the U. S. as per his own opinion. I think this last affidavit of Mr. Wardwell’s is a clincher. You have done your duty manfilly & have no doubt have done that People of that western county a great and lasting good. I have written you several letters to El Paso suppose you have them all. Yours very truly,

“(Signed) F. P. Sawyer.”

The scene was somewhat dramatic. There was no attempt to deny the authenticity of the letter. I was not in a merciful mood. Never mind what I said. That millionaire perjurer left that committee room weeping like a child.