by Noel Loomis
Mawson said, “It looks to me like you don’t have no special claim on this crossing, Ferguson.”
Ferguson said, “The man who thinks that is making a mistake.”
“The ferry belongs to you,” Mawson conceded, “far as I know—but you’ve got no exclusive right to operate a ferry on the river.”
“There is no other spot within fifteen miles where a ferry could possibly be operated successfully.”
“That makes it simple,” said Mawson. “Since this is the only spot, and since this place is up for pre-emption, it looks like you’re out, no matter which way you take it.”
“It may look that way to you,” said Ferguson, “but not to me. I am not going to let anybody pre-empt this crossing.”
“You may not have nothin’ to say about it.”
Ferguson ignored it. “I want to know one thing. We made a bet; are you going to stand by your end of it?”
“Yes.”
“Then start getting your sheep down to the dock. I can’t move sheep without sheep to move.”
“You’ll never make it,” said Yeakel.
“Get the sheep down to the dock,” Ferguson repeated. He went down to see Teddy Root and then to untie the lead goat and get her ready.
They had better luck that time, perhaps because the Mawsons had been away for a while and the sheep had had a chance to settle down. They got the first load on board the ferry in twenty minutes, and Teddy Root was cheerful. “Looks pretty good, Mr. Ferguson.
The fact was that even if they kept going like that for the full three days, they would not move two thirds of them; the real hope was in the Otos, and he was counting on Walking Bird, and hoping the Indians would not get into a general state of war before the time was up. Ferguson said, “Keep that Judas goat working. It will encourage the emigrants.”
“Say, I been wonderin’ why Mawson made that fool bet, Mr. Ferguson, and it just struck me.”
“What’s the answer!”
“I bet he’s broke; he can’t pay the ferriage.”
Ferguson thought about it for a moment. “You might be right.”
“But a-course you won’t lose; you can always hold enough sheep to get your money.”
The boat moved out, and Ferguson went with it.
The two Mawson boys were waiting on the Nebraska side, and a small crowd of men watched them unload the sheep. Ackerman joined Ferguson at the coffeepot and said, “We got Simmons.”
“Where is he?”
“I tied him up and left him in the empty wagon at my place.”
“How about Keller?”
“Still there, I reckon.”
“It must be pretty hot in that well; it’s dry, you know.”
Ackerman chuckled. “Hell of a lot hotter where he’s goin’ tonight.”
CHAPTER XV
They held the trial in Ferguson’s cabin with Job Sye acting as judge, sitting on a stump before the scarred old library table. “Right fancy furniture,” he said. “We got nothin’ like that.”
“I took it for passage,” said Ferguson, “and gave the man three dollars to boot. He didn’t have any use for it anyway; he was going to Oregon.”
Ackerman came in, pushing Simmons ahead of him. Simmons’ hands were tied behind him, and he looked disheveled. “I demand to know why you are treating me like this,” he said.
Sye was filling his pipe. “Reckon you’re about to find out,” he said.
“If it’s on account of what happened yesterday—that’s a personal matter between Ferguson and me, and you’ve got no right to interfere.”
“I heard it was a personal matter,” said Sye, “but three other fellers interfered on your side and you never put up no squawk at all.”
Simmons stood against a wall, his hands still tied, and Ackerman sat against the wall between Simmons and the door. The men crowded in until the cabin was fairly well crowded, and Job Sye rapped for order.
“Now, then,” said Sye, “this here is called a meetin’ of the Ferguson’s Ferry Protective Claim Association for the purpose of—”
“What kind of fake outfit is that?” demanded Simmons.
Job Sye looked at him over his glasses. “The prisoner will keep his trap closed until he is addressed by the court,” he said quietly.
Ackerman stood up and moved closer to Simmons.
“This ain’t no court,” said Simmons, “and I ain’t—”
Job Sye interrupted. “It looks as if the arrestin’ officer will have to take steps,” he said.
“Arrestin’ officer, hell! This ain’t no court! This ain’t even—”
He stopped abruptly, for Ackerman dealt him a hard back-handed blow square on the mouth. Simmons looked dazed for a moment, and then tasted the blood from his cut lips but said nothing.
“We want six jurymen,” said Sye, “and I figure the best way to choose ’em is by lot. We’ll write every man’s name on a piece of paper and put ’em all in a hat. Then we’ll let somebody pick out six, and them six will be the jury. Agreed?”
There was a murmur of assent. “If anybody don’t agree, let him speak up now or shut up later.”
He appointed Simon Hudson to collect the slips of paper, and Black Gallagher to pull them out of Art Grimes’ droopy-brimmed hat. Gallagher chose the slips without looking, and laid them on the table in front of Sye.
“The first one,” said Sye, writing down a name in his minutes, “is Nosey Porter. The second one is Sandy John Ferguson—but he’s out. He can’t set on the jury. The second one is Dave Ackerman, but he’s out. Gallagher, draw me a couple more.”
Sye unfolded a piece of paper. “We got Osterman, Smithwick from near Tehama, Ernest, Grimes—you git your own hat back—, and Tim Jones. You six fellers step up here and hold up your right hands. You swear to listen to this testimony and to form an unbiased judgment, and render your verdict accordingly?”
They all said, “We do,” and took their places, three on each side of the table where Sye was writing.
Simmons began to look scared.
“Now this here is a trial of this here defendant, name of Simmons, for jumping the claim of Sandy John Ferguson, who admits he has two claims for a total of 320 acres, according to territorial law. Mr. Simmons is alleged to have jumped the south quarter yesterday afternoon, and it is up to this jury to say whether he jumped a claim that belonged to somebody else under the rules of this association, and if he did, to set the penalty.” He looked at Simmons. “Does the prisoner wish to make a statement at this time?”
“I protest this travesty of just—”
He stopped again, for again Ackerman’s big hand was slammed across his mouth, and Simmons looked first shocked, then indignant, and finally subdued as he pushed a tooth out with his tongue, and it fell to the dirt floor.
Sye wrote in his book and said aloud: “Prisoner protests jurisdiction of the court.”
“Your honor,” said Tim Jones, “how much jurisdiction has the court got?”
“The court assumes jurisdiction as it sees fit,” said Job Sye. “I would say it has any jurisdiction it needs as long as it does not conflict with any other court.”
Obviously, Ferguson observed to himself, Job Sye had at one time or another been around a court of law more than just a little.
“The complaining witness is Sandy John Ferguson,” Sye went on, writing in his minutes, “and I reckon we better hear from him now.”
Ferguson went to the table.
“Your name?” asked Sye.
“John Ferguson.”
“Raise your right hand and swear to tell the truth, the whole truth, and nothin’ but the truth, so help you God.”
“I do.”
“Go ahead.”
“I pre-empted two quarters under the territorial laws of Nebraska, late last fall when I came here,” said Ferguson. “There are no legal descriptions because there has been no survey, but I have a cabin on one, and am building a well, and just across the boundary line, the way I measure it
, I have a corral and a shed. There was nobody on that land when I came here, and I claimed it.”
“Has anybody disputed your claim?”
“Not until yesterday, when Simmons drove two hundred head of hogs on the south quarter. I went over to see if he knew what he was doing, and he said he was claiming that quarter because I had no right to it under federal law. I told him to get off, but he refused.”
“You had a fight?”
“He didn’t git his face smashed up diggin’ goobers,” said Nosey Porter.
Sye looked at Porter over his glasses. “The job of the jury is to give a verdict—not to offer testimony,” he said coldly.
“Yes, your honor,” said Porter.
“Does the witness want to tell about the fight?” Sye asked.
“No, your honor, I do not,” said Ferguson.
“Very well. Anything else you want to add?”
“I guess that’s all there is.”
“Was Mr. Simmons here when you came here?”
“No, he came over about three months ago.”
“Has he pre-empted any land around here?”
“Not as far as I know.”
“Did he ever tell you he intended to jump your claim?”
“No.”
“That’s all,” said Sye. “Will the defendant take the stand?”
Simmons was sworn in. He looked worried but not alarmed. He said, “I want to ask first, Your Honor, how much authority this jury has.”
Sye raised his eyebrows. “All it needs, I guess.”
“You mean it can find me guilty?”
“It sure can—and it can fix the punishment.”
“How much punishment can it decide?”
“All it wants to, Mr. Simmons.”
Simmons licked his lips. “You mean—corporal punishment?”
“Corporal punishment, sure. What’s the difference between corporal punishment or any other kind?”
“Well, I—what kinds of corporal punishment?”
Sye puffed on his pipe. “It could have a man whipped if it wanted to.”
“Whipped?” Simmons was pretty well beaten down by now.
“Yup—or hanged, if it takes a notion.”
Simmons turned pale. “This jury could sentence me to be hung?”
“The jury wouldn’t sentence you, Mr. Simmons. The court sentences—but the jury can fix the punishment. Now do you want to talk about the charge agin’ you?”
“That land was laying there, doing nothin’,” said Simmons, “and I needed some land for my hogs, so I took it. Then John Ferguson came along and ordered me off, and naturally I fought back. That’s a man’s right, ain’t it?”
Sye thought it over. “I reckon it would depend on what he was fightin’ for, and how he fought back.”
“I have got some things to say,” said Ferguson.
“All right, fire away.”
“This land was in use. I pastured two or three mules and two oxen on it all the time. Besides that, there is a corn crop that takes about fifty feet down one side.”
“You got a fence on it?”
“I haven’t seen a quarter-section fence this side of Iowa, but I fenced my corn to keep the stock out.”
“I just thought I’d ask,” Sye explained.
“Do I have the court’s permission to ask the defendant a question?”
Ferguson faced Simmons. “Who sent you to jump my claim?” he asked.
“Nobody sent me.”
Ferguson smiled. “Then you admit that you jumped it?”
“I don’t admit nothin’,” Simmons said hastily, “It was open land and I took it.”
“Why did you take it?”
“Because—” He hesitated. “Because I needed some land. That’s reason enough, ain’t it?”
“Not if the land belongs to somebody else. And certainly not when you have already jumped a quarter that had been pre-empted by Mr. Benson.”
Simmons hesitated, then decided to brazen it out. “He wasn’t usin’ his.”
“You did claim it, then?”
“I put stakes on it.”
“Are you a farmer by occupation?”
“I been mostly farmin’ all my life.”
“A hog farmer?”
“Not exactly,” said Simmons, “but I know about hogs.”
“Did you bring this drove of hogs with you when you came to Nebraska territory?”
“Well, of course not. Everybody knows that.”
“Then, Mr. Simmons, how long have you had them?”
“I—” He saw the trap, but he did not see a way out. “Not very long.”
“Three days?”
“No-o.”
“Two days?”
“Two days today.”
Ferguson persisted. “Then you bought these hogs yesterday morning?”
Simmon’s eyes were desperate as he saw the trap close in.
“You have a bill of sale?”
“I never thought to ask for one.”
“Pretty careless, wasn’t it, to buy two hundred head of hogs without a bill of sale?”
“I knew who I was buying from.”
“What was the price?”
Simmons looked at Sye. “I don’t have to answer that, do I?”
Sye scratched his head. “I don’t reckon it is material, Mr. Ferguson.”
“Perhaps not—but this one is: from whom did you buy those hogs, Mr. Simmons?”
Simmon’s mouth opened. “I—” He looked at Sye. “Do I have to answer that?”
“Your Honor,” said Ferguson, “if necessary, I will tell this court about the three men who joined Mr. Simmons to give me this face, and I want to know if he bought these hogs from one of those men. Also, I want to know if he bought them at all. I believe he is only a hired hand for somebody else. I don’t think he ever owned those hogs, but that the legal owner hired him to drive them onto my land to harass me.”
Sye puffed at his pipe. “Sounds like a legitimate question,” he said to Simmons.
“Now tell us,” said Ferguson, “did you actually own those hogs?”
Simmons debated it in his mind, and it became obvious that he decided to lie. “Yes, I owned them.”
“Then where did you buy them?”
“That’s a business secret.”
“Two hundred hogs ain’t no business secret,” said Sye, and wrinkled his nose. “I can smell ’em from here.”
“I can’t tell,” Simmons said nervously.
“Your Honor,” said Ferguson, “maybe he’s afraid to tell. Then I would like to suggest to this court that the legal owner of the hogs, was and still is a man named Zachariah Mawson, who is across the river with twelve thousand head of sheep, and who wants to get rid of me so he can have the ferry and control the entire area.”
There was dead silence in the cabin, and finally Sye said: “I suppose you know what you’re talkin’ about.”
“It is not an idle accusation, Your Honor.” He turned to Simmons. “Now, then, you went through all this to give Mawson an excuse to bring his ruffian sons across the river and give me a whipping, didn’t you?”
Simmons’ face was white. “No, sir, that wasn’t it.”
“You still say you own the hogs?” asked Sye.
“Yes.”
“But no bill of sale.”
“I didn’t get one.”
“Well,” said Sye. “It sure don’t sound like you own no hogs as far as I can figure it.”
Porter spoke up. “Your Honor, can the jury ask the witness a question?”
“Yes.”
“Was it a surprise to you, Mr. Simmons, when Mawson and his two boys came out to help you?”
“Well, yes.”
“You mean you didn’t know they was in the neighborhood?”
“No.”
“Then how come I seen you with ’em at Chippewa City a couple of hours earlier?”
Simmons bit his lip, a badly harassed man. “All right,” he said, “I di
d know it.”
“Then the hogs wasn’t yours at all. They belonged to Mawson.”
“They was mine,” Simmons insisted.
Ferguson was puzzled. Then a light dawned. “May I suggest that he was promised the hogs if he would jump my claim?”
Sye raised his eyebrows. “Sounds likely.”
“They were my hogs,” Simmons insisted.
“But no bill of sale,” said Sye.
“I can get one.”
“Not in time for this trial,” said Sye, “because it’s over.” He turned to the jury. “You fellers go outside and elect a foreman, and make your decision. And don’t be too long, because them hogs stink like hell.”
The six men got up and went out. The men in the room began to talk. Ferguson looked for butter to put on his face, but settled for lard.
Within a few minutes the jury was back, and Nosey Porter stood up. “I was elected foreman,” he said, “and we come to the following conclusions regarding the case: First, that Sandy John Ferguson had a pre-emption claim on the quarter; second, that Simmons jumped it knowingly and with felonious intentions.”
“Felonious intentions?” asked Sye.
“Yes, Your Honor. One of the men on the jury thought that ought to go in somewhere.”
“Go ahead,” said Sye.
“We recommend the following: First, that Simmons be required to pay Ferguson five cents a day per hog for use of his pasture; second, that Simmons be required to get out there with a shovel and a wagon and clean up all the mess left by them hogs; third, that them two hundred head of hogs don’t belong to nobody, and that the Ferguson’s Ferry Protective Claim Association take charge of them, to be cared for or disposed of in whatever way seems fittin’, and the proceeds to be saved for a reasonable time and then applied to anything the club votes; fourth, in case they do turn out to belong to somebody, that feller be fined $500 for usin’ said hogs to perform a malicious trespass.” He looked sternly at Simmons. “And fifth, that Simmons be taken down to the river and held under water for one minute unless he signs a quitclaim deed to Ferguson’s south quarter; if he refuses to sign, he will be held under water for a minute and ten seconds, and if he still refuses, for a minute and twenty seconds, and so on until he signs the quitclaim.”
“That’s murder!” shouted Simmons.
“Sixth,” Porter went on. “The defendant admitted he jumped Mr. Benson’s claim, and this jury recommends that as soon as he signs a quitclaim for Ferguson’s quarter, they take him back to the river and persuade him to sign a quitclaim of Benson’s quarter.”