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precision and force, sent him down, his knife flying from his hand. And again, and again, as he sprang, with remarkable agility and much spunk, to his feet, he went down, and down. Till at last, half-stunned, blind with blood, and quite bewildered and helpless, he sat on the floor and fairly cried: Enough! enough! you are too much for me. Who the devil are you?"


The young man, whose face was scarcely flushed with the exercise, and whose eye at once resumed its softness, and bis air its quiet, said: "My friend, get up"-at the same time assisting him; "you are a great fool. My name is " Well, never mind his name; there are but few Americans to whom it is not familiar; even a transatlantic notoriety attaches to it. It is the name of a blood-stained hero of the ring, who killed his man, some years ago, in one of the most protracted and cruel gladiatorial encounters recorded in the shocking annals of pugilism. That man was one of the most exemplary of law-abiding San Franciscans in Forty-Nine. Those dreadful fists were never used save to restore order.

Poor Tom Cross! his was a queer, sad case. Tom was a gentleman's son from New Orleans,-with fair mental parts, a superior education, winning address, and a most generous soul. His were that fatal unthrift which takes no care for the morrow, "that no man ever saw," and that adventurer's passion for hazards, that go to make up the most tolerable type of gamester. Full of pitiful promptings, any hopeforsaken wretch-purse-broken, healthbroken, heart-broken, who had dragged his racked joints, his chills, and his despair, all the way from the mines, beckoned onward by the cruel angel of an unattainable home, an irrecoverable mother, and an impossible earthly rest was a god-send to the Abraham's bosom of Tom Cross's prosperity. And when at last he struck a vein of bad luck, and Typhoid fever broke the bank of his good spirits, he proposed, between the spoonfulls of his beef-tea, to deal for Jack with me, double or quits, for the bill he thought I was Scoring against him. He won; and then we turned the cards again, double or quits, for the doctoring of the rheumatic Digger Indian in the next tent.

One evening I found Tom much worse; he had been sitting up in a

draught of cold, damp air, all the afternoon, playing, Solitaire. I tucked his Mackinaw blanket warmly about him, and exacted his promise that he would keep under its shelter till I returned. Late that night, impelled by painful forebodings, I made my way to his tent in Happy Valley. It was empty--no Tom there. In an adjoining shantee, an old Texan Ranger, with the dysentery, said Tom had been there much improved and in high spirits, and had taken a hand for one turn at high-low-jack. He had left for his blankets again, about half an hour since. I had some trouble to find him. He lay in a thick clump of bushes, some yards off-dead. There was an old worn-out ace of hearts in his trowsers pocket, with two lines written on it with a lead pencil'Good-by, mother! Pardon and love poor Tom." It had evidently been prepared some time before, and kept there in case of accident.


In the latter months of Forty-Nine a number of professional gamblers in large practice were residing at the Graham House-among the rest, two who were especially remarkable for the boldness of their play and the steadiness of their business nerves. These were a hunchback, named Briggs-and Joe Bassett, a better sort of graduate of the old Vicksburg school. Both had been signally successful in many sharp operations during the year, and had acquired a considerable property in lots, which for their convenience in business they had converted into cash, and banked, partly with Burgoyne or Wright, partly on various monte-tables.

One day, in an after-dinner chat, they compared notes and found that they stood equally fairly on the gamblers' 'change, each being good for just one hundred and twenty thousand dollars in immediately available dust. Being both more than usually enterprising under the inspiration of wine, Briggs offered a daring banter which was recklessly accepted by Bassett: that they should at once adjourn to an upper faro room, fill up cach a check for the entire sum ho was worth in cash, divide equally between them two hundred and forty thousand dollars in red checks, and play for the whole-neither to leave the room on any pretext until all the red checks were lost and won. Accordingly, with not less equanimity and pleasant singleness of purpose, they retired, with a few

choice spirits of their set, to the privacy of a reserved apartment, and having provided store of choice liquor, cigars, and viands for the company, executed the required documents, divided the rosy counters, took their seats at opposite sides of the table, and began their extraordinary and most interesting contest a contest which called out such feats of memory, sagacity, discrimination, selfpossession, quick recognition of signs and detection of sly finesse, such fine feints, nimble thrusts and parries, hot assaults, and well-ordered retreats, as would have made the fortune and the fame of a statesman, a general, or a fencing-master.

The first deal was made at four o'clock in the afternoon, and the game went on with changing fortune all night. At the elbow of each stood a glass of water, moderately treated with brandy. Neither smoked -a cloud between them would have been as culpable a blunder as the sun in the eyes of a duelist. Ten o'clock next morning found them yet in their places-both looking somewhat pale and fagged, but very quiet. Briggs had four thousand dollars left of all that he was worth in the world. The cards were dealt. The table at which they sat was near the door of the room; and just as Bassett, whose "say" it was, was making up his mind, some one entered and stood behind him. Briggs eyed his antagonist, over his hand, with a searching stare that held its very breath. Without noticing the entrance of the new-comer, with no flutter of his cards, without any startled glance, or even the movement of a finger, Bassett "went six thousand dollars." "Take the money," said the hunchback-and he took it. Briggs had two jacks, Bassett three kings. As the two tossed off great bumpers of raw brandy, Briggs remarked, as he rose to go off to bed, "If you had noticed that man I might have borrowed the money and held on a little longer; but when I saw that you did not turn to look over your shoulder, or drop the faces of your cards, I knew you had a sure hand." A few days after that, tho hunchback invested fifty dollars, borrowed from Bassett, in a miner's outfit, and started for the diggins, where he died in a month, a helpless

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Old Paul? A well-to-do-New-Englandfarmer-looking man, with a kindly composition of features and expression, exemplary and patriarchal in his manners -a man to go to for advice, abounding in various and instructive experiences of life, but full of benevolent leanings toward the world-a man to lounge, for three weeks in the month, about the passages and porticoes of his hotel, in dressing-gown and slippers, smoking a long meerschaum pipe, reading the Alta, or the latest home papers, projecting city improvements, discussing grand speculations, examining political aspects, taking the bearings of parties, weighing the claims of influential and representative men, severely looking into the business of the Town Council, considering at large the state of the country, defining the duties of Congress toward California, prophetically por traying the future of the State; and then-returning to the city, and its daily life, fraught with momentous and exciting events, full of scenes wonder-moving and often most painfulcommending humanitarian projects, exhorting his impressible audience to participation in benevolent enterprises the founding of a City Hospital, contributions to a fund for the relief of indigent, disabled and friendless strangers.

Such was Old Paul three weeks in the month. During the days that remained, he was apt to assume a different character, and appear in a rôle always stirring, and sometimes tending toward the tragic. That was when, casting the dressing-gown and slippers, pipe and newspaper, and the liberal projects of the public-spirited citizen, he started out, dust pouch in hand, to make the rounds of the tables. On such occasions his habit was having provided himself abundantly with coin and dust-to take any principal saloon for his field of action, and disdaining small play, deliberately set about breaking tables. For Old Paul was in the wholesale gambling line. He confided in the inexhaustibility of his resources, the impressiveness of his reputation; and, especially, in his nerve and the skill of his play, his intimate initiation in the mysteries of the various games, and his curious professional acquaintance with the idiosyncrasy of every considerable dealer and the peculiar tricks of his manipulation. I have known him to take, in one evening,

five out of seven monte banks, beside a faro bank or two, and seat his own dealers at them to keep the game going, on his proprietorial account. Having done this, he would quietly subside again into dressing-gown and slippers, pipe and newspaper, political economy and visions of beneficence.

Toward the close of the year a considerable body of the "first citizens" called out Old Paul to stand for them, a candidate for the Comptrollership. Being ambitious, and active citizenship his particular vanity, he accepted the invitation. His most formidable opponent was a famous Texan Ranger, who had come out of the Mexican war with a few scars and many honors-an avowed pet of the populace, especially of that part of it which rallied around the Danner of the disbanded New York regiment. Partisan passions ran high from the first; and, as election day drew nigh, bets flew fast and furious. The devoted adherents, and paid drummers, of the rival leaders, were busy in Plaza and street, bar-room and gambling saloon, stirring up the enthusiasm of the multitude, glorifying gambler and hero, coaxing, bribing, dragging the compliant and the foolish, the needy, the greedy and the drunk, into their respective ranks.

On voting day, the polls presented an unresting scene of delirious .excitement, boundless intemperance, and angry struggle. Old Paul had chartered for the day the best-stocked hotel on the Plaza, and opened free larders and bars. So, up to four o'clock in the afternoon, the game seemed going exultingly for him. His people cheered his name uproariously at every poll, and the other side were growing dumb and tame. All at once the handsome ranger appeared in the centre of the Square, gallantly mounted on a richly caparisoned and beautiful black horse. He wore the costume and arms of his famous corps, and bore himself like a man who needed only the apparition of a squadron of Mexican lancers, disputing his passage, to complete his satisfaction. Suddenly, he plunged his ringing Mexican rowels into the shrinking sides of his steed, and, dashing down the slope of the Plaza, taking some flying leaps by the way, sharply reined up the astonished and rearing animal in the midst of an admiring crowd gathered in front of the polls at the Parker

House, whom he saluted with a gallant bow. Then he treated them to such feats of splendid horsemanship as would have satisfied Franconi or Ducrowputting his steed to the headlong run, and bringing him up short on a serape flung on the ground before him-throwing himself over the neck of the foaming stallion, and firing his revolvers with unerring aim at small objects on the ground-leaping from the saddle with his bowie knife in his mouth, and recovering his seat, the horse always at full speed, with the agility of the unequaled Cadwallader-hitting doubloons tossed in the air, again and again, and hurling his knife into posts with the precision of a Chinese juggler.-He was elected.

Three months later, the defeated candidate published in a Sacramento paper a schedule of the debts he had paid since he started for the mines "with just seventeen dollars in his pocket." Nobody was so simple as to suppose that the public-spirited Paul meant that the money had been earned with pick and pan.

Of such was the fraternity which swayed the city in those days. The secret of their paramount influence lay, as I have said, partly in their harmonious combination of the preeminently American traits, of versatility of self-adaptation, quick appreciation of striking circumstances, a faculty of taking accurately and at once the bearings of new and strange situations, inexhaustibility of moral and material resources, fixity of purpose, persistence of endeavor, ready hazard of life, unflagging endurance, audacity of enterprise, ever fresh clasticity of sanguine temperament; but, principally, in the imposing figures of an omnipotent cash capital, wherewith they knew how to feed the enormous cravings of the people, and mitigate their privations and their pains.

For instance: your stirring labors for the day drawing to a close, what should you do next, to maintain yourself at that point of excitement whence to fall into self-perusal and despondency was dreadful and dangerous? You had no home, of course-that luxury had not yet been introduced. Reading was not to be thought of-you must have nerves of steel to be capable of the selfpossession necessary to that tranquil recreation, even if you could find a place to read in. Visiting, too, was a

lost art-friends, like homes, were as yet unattainable delights. Your bed was a horror, to be put off to the last; for you slept in a foul bunk-one of a stack of such, to which a stable, a kennel, a sty were sweet-in a loft over the bar-room; and an atmosphere reek ing with stale cigar smoke and the fumes of cheap rum, ascended to your outraged nostrils through great gaps in the floor. But from across the way your ears were saluted by sounds of maudlin hilarity and the incessant chink and tinkle of coin, blent with the sweetest strains of Bellini or Donizetti, and the ugly dissonance of lost women's laughter and loud wrangling. You are easily drawn thither-Mephistophiles your guide.

You plunge into a lake of dazing glare and devilish sorcery. Your eyes open on a flaring palace of Pandæmon, in whose festal chambers an insensate and debauched herd are gathered densely. Obscene pictures hang around the walls; a glittering array of decanters and glasses is reflected from tall mirrors; there is the multitudinous chink

of doubloons, mixed with the chatter of timid or undecided idlers, and the frequent popping of corks; orchestral impertinences override the rest; a few uncoated imperturbables knock billiard balls about; ten-pin balls rumble, roulette balls rattle, and the cards, the quiet, mocking cards, are everywhere. At first you loiter innocently, a philosophic and observant looker-on; then you take your inevitable part in the wicked hurly-burly. At last, you return to your abhorred den-now good enough for you, who have not the means left of paying even for thatand to the foul blankets, and a false sleep full of brain tricks. You dream that you are the Midas of many monte and faro banks: that you have choice water-lots at Long Wharf, and fiftyvara building sites on Montgomery street; that you are the oracle of a superior circle of bankers, judges, scholars, orators, ay-and divines; that you are alcalde, governor, senator in Congress-an honorable, a remarkable, a smart man. And your dream is



HEN that model of a Roman Em


peror, who has always passed in history under the nickname of Caracalla, put his colleague and brother Geta to death, he requested Papinian to write him out such a defense of the deed as it might be proper for him to read before the Senate. The old jurist answered, in the noblest spirit of justice, that it was a great deal easier to commit a murder than to justify it; and though the answer cost him his life ultimately, posterity has never ceased to admire the boldness no less than the truth of that reply!*

Of the truth of it, the late decision of the Supreme Court of the United States is a signal instance. The officers of that body have found it much easier to inflict a mortal wound upon the civil life of large numbers of their fellow-men, as well as upon the most sacred principles of justice, than to give a satisfactory reason for their proceedings. It

was easy for them to decide that the descendants of Africans can not be citizens, that the Missouri compromise was unconstitutional, and that slavery may exist of right in all the territories, but it has not been easy for them to assign any grounds for that dictum which any intelligent or honest man will accept as valid, either in jurisprudence, history, morals or humanity.

We haveread the opinions of this court, as published, with all the care which the importance of the matter involved exacts, and we feel bound to declare them among the feeblest defenses of an unrighteous act that it has ever been our lot to encounter. The controlling opinion, in particular, delivered by Chief Justice Taney, is weak and disingenuous beyond all precedent; and it may be said of the author of it, that, while ho has seldom had the felicity to distinguish himself by the wisdom or ability of his judgments, he has certainly, by

Spartian. in Caracall c. V.

this last effort, earned the unenviable eminence of having uttered the most untenable doctrine which ever emanated, on so grave a question, from his tribunal.

In regard to the legal merits of this decision, however, we do not propose to speak that branch of the subject has been already amply discussed in the journals, and, without them, had been set at rest, we think, in the exhaustive and annihilating opinion of Judge Curtis. With a profound knowledge of the law, which might be expected in one of his position, and a familiarity with history, in which he seems to have the advantage of most of his colleagues, he has completely overturned the few and flimsy pretenses wherewith they sought to commend their erroneous assumption of power, and their fundamental perversion of principle. As much might be said of the opinion of Judge McLean, and both those upright magistrates-men who have ever been known for their strong conservative tendencies-who have had no novelties to introduce into jurisprudence, and no outside relations to warp their independence, and who, in resisting the departure of the other judges from the ancient ways, have only acted in perfect conformity with their settled characters-deserve the warmest thanks of every member of the community of every class and every party. To their expositions of the law, therefore, we are willing to leave the decision of the question in the public mind.

But it happens that the opinion of Chief Justice Taney does not rest so much upon any interpretation of the law as it does upon a construction of the facts of history; and as, in that department, every student may be supposed to be as competent to judge as he is, we propose to examine the extent of his knowledge, and the accuracy of his judgment, in respect to it. Before doing so, however, let us stop for a moment to remark upon the very whimsical notion which is put forth by the adherents of the government to curb or intimidate free inquiry, to the effect that the decisions of the Supreme Court are not objects of legitimate criticism. If we might believe them, there is something so sacred in the character of this tribunal, or so infal

lible and conclusive in its utterances, that every attempt to show their impertinency, or their error, is a species of crime scarcely less perilous than crimen majestatis under the Cæsars, or less sacrilegeous than open resistance to a decree of the Pope. Although the very bench which renders the decision has found its severest condemnation in the recorded opinions of some of its own members, although it has ever been the custom of our most distinguished men, Jefferson, Jackson, Justice Story, Chancellor Kent, to canvass its action with the utmost freedom, and sometimes with avowed contempt, although the most essential principle of our political structure is the responsibility of all functionaries to public sentiment, we are yet told that the judgments of the Supreme Court are not to be touched. The decree has gone forth, exclaim these reasoners, and forever after let the world hold its tongue! The irrevocable, irreversible, fatal vermilion-edict is published, and let all gainsayers beware!

Now, such an assumption may be adapted to the latitude of China, or may not be out of place under the unconditional rule of the Czar, but is surely something new in this republic, which long since abjured all human pretensions to the divine prerogatives. Our theory of government has been, that there is nothing final in civil affairs but truth and justice-that institutions are not an authority over the people, but the ministers and servants of the people and while this theory lasts, it cannot be allowed to any body of individuals to usurp the supreme and irresistible control of their minds.


Pray, on what ground of reason or good sense is it inferred, that, because the judgments of the Supreme Court are final in the judicial sphere, they are also final in the political and moral sphere? Have we, in erecting that tribunal, as a mere convenience or necessity, if so be, of jurisprudence, created it, at the same time, an imperial organ of despotism? Have we, who, for three hundred years have canonized Martin Luther for denying the supremacy of the Romish court in matters of religion, raised a papistical consistory among ourselves, which is no less supreme in all civil matters? Have we, who are never weary of glorifying

* See Life and Letters of Justice Story for the practice of the two last.

† See Jefferson's Correspondence as to the case of Marbury v. Madison. Vol. 3.

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