By Bob Kaster – Published in Volume 10, Number 8 edition of the Siskiyou Pioneer, entitled “The Portuguese of Siskiyou County — 1860’s-Mid 1900’s.“
Bob Kaster is a retired lawyer and California Superior Court Judge. After retiring from the bench in 2008, he took up writing. What began with short stories written for his family and letters to the editor evolved into an opinion column, The Septuagenarian Speaks for The Siskiyou Daily News. At the request of the editors of this book, Bob graciously agreed to apply his expertise and provide further context to the legal issues raised in the previous essay, “Maria Neves & José Cardoza”.
“Whisky’s for drinkin’ and water’s for fightin’ over.” This famous saying is generally attributed to Mark Twain, although it apparently is not included in the author’s known writings. Regardless of who originally uttered it, the quote captures the essence of the development of America’s wild west, if not the history of the world.
Fighting over water is as prevalent in the world today as it was in Mark Twain’s time, and is a hot topic even now in Siskiyou County, especially when it comes to agriculture. Controversies such as the proposal to remove four dams from the Klamath River and the implications of the state legislation known as SGMA, the Sustainable Groundwater Management Act, are newsworthy today in Siskiyou County, and are worth “fightin’ over.” Disputes over water and water rights are as prevalent as ever.
On a smaller scale and not as well-known was an incident that occurred more than one hundred and thirty years ago between members of two Siskiyou County families, the Cardozas and the Davidsons. The Cardoza family emigrated from the Azores region of Portugal. The Davidsons, on the other hand, of Scotch-Irish ancestry, had worked their way west from West Virginia, eventually settling in the Scott Valley in the 1850’s, where they became prominent. Both families over the years have made contributions to Siskiyou County’s rich history and some of their descendants continue to reside here.
The Cardoza brothers, Manuel and José, arrived in the 1870’s, attracted by Siskiyou County’s gold rush. They eventually made enough money mining for gold to buy about 600 acres of ranch property in the McAdams Creek area near Fort Jones. The Davidson family owned property nearby, and there had been an ongoing disagreement between the two families over rights to ditch water, with both sides believing they had a superior right. In fact, the news accounts of the late 1800’s are chock-full of water-rights lawsuits between all the families up and down Moffett and McAdam’s Creeks. It is no surprise that there might have been confusion in those days, as such confusion exists even today, maybe even more so. Water law is complex and ever-changing. Long-standing water rights can be disrupted by development and ownership changes to land, by changes in availability of water resources due to drought and other climate fluctuations, and by changes in public and governmental sentiment as to how limited water resources should be allocated. Probably no one will ever know who was “right” or “wrong” in the water dispute between the two families.
The “trouble” between the two families was described in an article in the June 1, 1889, edition of the Scott Valley News, portions of which are quoted here:
“Our usually quiet town was startled on Wednesday morning at about half-past 9 o’clock, by the information that Chas. Davidson, son of J. A. Davidson, had shot Manuel Cordoza (sic) with a shotgun on McAdams Creek about two miles north of Fort Jones, with a probably fatal result, the lad who did the shooting, and who is about seventeen years of age, conveying the first information and surrendering himself to the authorities.”
The local deputy sheriff and constable, B. F. Walker, after sending a telegram to the coroner in Yreka, “deputized” J. W. Wheeler to take charge of the body while waiting for the coroner to arrive. According to the news article:
“Coroner (George) Fried arrived at the scene of the trouble at about half-past 2 o’clock and leaving the body in charge of the local officers, came to town and summoned a jury to inquire into the cause of the death of Cordoza.”
The “town” referred to in the article was Fort Jones. Six people were summoned to be jurors for the coroner’s inquest. The jurors viewed the scene of the shooting and the body. Five of them “came to the Fort,” and the sixth “remained with Dr. J. Newton who performed an autopsy, and the remains were delivered to the relatives and friends of the deceased for interment.”
The coroner’s jury convened at 6:30 PM in the office of Judge McGwire where they heard the testimony of Dr. Newton as to the cause of death. They then adjourned until 8:00 AM the next morning.
The next day, further hearing was conducted, and testimony was taken from several people including “neighbors of the deceased who saw the parties preceding the difficulty and the remains after the shooting, (one of whom testified to hearing a report of firearms in the vicinity of where the body was found) there testifying only as to the movements of the parties.” Joseph Cardoza, the deceased’s brother gave testimony primarily regarding Manuel’s age, date, and place of birth. William Davidson, testified as to the actual circumstances of the killing. Deputy Sheriff/Constable B. F. Walker testified about a hat and shovel which had been found near the body at the scene of the shooting. The testimony concluded at 2:30 PM that afternoon.
Thirty minutes later, the coroner’s jury rendered the following verdict (again quoting from the Scott Valley News article):
“We, the undersigned jurors, summoned to appear before George Fried, Coroner of Siskiyou County, at McAdams Creek, on the 29th day of May, 1889, to inquire into the cause of the death of Manuel Cordoza, being duly sworn according to law, and having made such Inquisition, after inspecting the body and having heard the testimony adduced upon our oaths do say that we find that the deceased was named Manuel Cordoza, a native of Azores, aged 39 years, came to his death on the 29th day of May, 1889 on McAdams Creek, Siskiyou County, state of California, Cause was a gunshot wound inflicted by Charles Davidson. All and each of us duly certify that we consider the said Charles Davidson justifiable under the trying circumstances. (Emphasis added.)
J. F. Denley John Kramer
A. A. Beem Henry Wood
J. M. Hopper D. C. Whiting”
To its credit, the forgoing news article made an effort to refrain from being judgmental. The article concluded with the following:
“The examination of Davidson will take place before Justice McGwire on Monday, pending which we refrain from any statement touching the causes which led up to the difficulty, not wishing to prejudice the case.
“The unfortunate affair is deplored by the entire community, and expressions of regret are heard on every hand.”
Not all news accounts demonstrated the same constraint. For example, a contemporary Fort Jones publication presented a different picture. This one began with the headline “A Portuguese Shot in a Dispute Over Water Rights,” suggesting at least the possibility that the ethnic background of the participants was of concern to the author of the article.
“The shooting was the result of a dispute of many years’ standing as to the right to the waters of McAdams creek. Davidson and his son went for the purpose of turning the water in their ditch, when a boy who was watching their movements, went to Cardozo’s home, about a mile distant, and informed him of what was being done. Cardozo came at once and tore out their dam and commenced the fight by striking the elder Davidson over the head several times with a shovel, finally knocking him down, and in order to save his father’s life the son, a young man of about eighteen years, fired at Cardozo with a shotgun, killing him instantly.”
Although the six inquest jurors pronounced “the said Charles Davidson justifiable under the trying circumstances,” that wasn’t the end of the “trouble.” Was this a murder or a justifiable homicide? Although charges were initially filed, no criminal trial ever took place, and there has never been a final judicial determination characterizing what actually happened. As we look back on it today, more than 130 years later, without the benefit of a trial jury verdict to give us guidance, it is difficult to assign blame. The available information is sparse and inconsistent. In attempting to reconstruct what actually happened, this writer has relied on various newspaper accounts of the time, some court records, and the memory of Maria Neves Cardoza (born in 1864 on Pico, one of the islands forming the Azores in the Atlantic Ocean). Maria Neves Cardoza was the wife of Manuel’s brother José. She told her story to her daughter-in-law, Emily Simas Cardoza, who wrote it down. Maria was very young when she traveled to America from the Azores to marry her older husband, whom she had never met, and she did not speak English. Her story was an interesting one and is described in more detail in this edition of the Siskiyou Pioneer. The Cardozas’ handwritten documents supply details not found in the newspaper stories, and casts doubt on the coroner’s jury’s finding that the killing of Manuel Cardoza was “justifiable.”
The Siskiyou County District Attorney at the time was J. S. Beard, who apparently believed there was sufficient evidence that a crime had been perpetrated that he presented evidence to support a charge of murder and later filed criminal charges against James, William, and Charles Davidson. Beard enlisted the assistance of E. C. Hart, then Sacramento City Attorney, to assist in the prosecution of the preliminary examination against the three defendants.
A preliminary examination is not a trial, but rather a proceeding, presided over by a magistrate, to determine whether there is sufficient evidence that a crime has been committed to hold the defendants to answer for trial in the Superior Court. In those days, the magistrates who presided over preliminary examinations were usually the local justices of the peace. The preliminary examination in this case resulted in all three defendants being held to answer for the charge of manslaughter. An October 1889 article in the Sacramento Bee is enlightening.
A SISKIYOU KILLING
A Row Over a Dam Caused the Death of a Participant
Hon. E. C. Hart, of this city, returned this morning from Siskiyou County, where he had been called to assist District Attorney J. S. Beard in the prosecution of James, William, and Charles Davidson, charged with the murder of Manuel Cardoza on the 29th of May last. Cardoza and the Davidsons were neighbors and lived about three miles from Fort Jones. A small creek ran through the two places and Cardoza who lived up the creek from the Davidsons built a dam across the water course and diverted all the water into a ditch which irrigated his place. The Davidsons were thus left without water and on the 28th of May. Charles Davidson and his sister, who are children of James Davidson, went and told Cardoza that he must allow half the water of the creek to flow through the dam. Cardoza refused, claiming to have bought the right to all the water with his property. The following day Jas. and Wm. Davidson, who are brothers and Charles Davidson went and cut the dam. While they were engaged in the work, a boy who saw the proceedings went and notified Cardoza, who immediately went to the dam with a shovel with the intention of repairing it. He met the Davidsons there, and a woman standing on a hill a quarter of a mile away saw one of the Davidsons shoot Cardoza twice with a shotgun, but the distance was so great that she couldn’t tell which one of them did the shooting. The Davidsons immediately went to Yreka and gave themselves up.
The preliminary examination was continued from time to time until last Monday. The Davidsons set up the defense that Cardoza who was a six-footer, was attacking James Davidson with a shovel and that Charles shot him to protect his father. The defense was represented by attorneys Gillis, of Yreka, and Reynolds, of Fort Jones.
The Davidsons are wealthy people. William Davidson was County Clerk of Shasta County for several years and James Davidson was a member of the Board of Supervisors of Siskiyou County, for several terms. A strong defense was made but all three of the defendants were held to answer to the Superior Court on a charge of manslaughter, with bail fixed at $3,000 in each case.
“Hon. E. C. Hart,” referred to in the above article as having assisted District Attorney J. S. Beard in the preliminary examination was Elijah Carson Hart, the Sacramento City Attorney at the time. He went on to become a Superior Court Judge for ten years and then served as Associate Justice of the California Third District Court of Appeal in Sacramento for 22 years until his death in 1929. He was considered “the dean of the state’s Supreme and Appellate Court benches.
On November 4, 1890, barely more than one year after the Davidsons were held to answer at the preliminary examination, District Attorney J. S. Beard, whose full name was John Samuel Beard, was elected to the Siskiyou County Superior Court bench, and went on to serve three terms, until January 4, 1909.
Why didn’t the case proceed to trial? The best that we can do now, after the passage of more than 130 years, is to speculate. One theory, of course, is that the prominent Davidson family simply had the wealth and power to prevent the case from being further prosecuted, as the deceased and his family were immigrants and of lesser standing in the community. But there are some valid arguments against that conclusion. Yes, the Davidsons were prominent, and they had prominent lawyers. For example, one of their lawyers, H. B. Gillis, was described in Harry L. Wells’ History of Siskiyou County, California, published in 1881, as follows:
“He is tall, bony, and slender, possessing singularly penetrating powers of mind and brings untiring zeal and activity into whatever he undertakes. As a lawyer he is logical, searching, and persistent, and seldom fails to win his point. His long residence on the frontier has given him an admirable insight into the western character, to which hardy, vigorous class he may be said to belong himself. As a public officer he is faithful to the best interests of the people, and as a private citizen he has a circle of friends and well-wishers, which only sterling worth and manhood can create.”
Wow! That sounds like a description of Abraham Lincoln. He would be a tough adversary.
But, as we have seen, the prosecutors, E. C. Hart and J. S. Beard were high-powered lawyers in their own right and pressed on with their prosecution of the preliminary examination to obtain a holding order, requiring several sessions to do so.
A viable theory is that the prosecutor did not have sufficient evidence to proceed with the trial because a key witness was not available. This detail did not appear in any newspaper account but the court record documents the many efforts made to subpoena reluctant witnesses, Rosalina Bem and her 12-year-old son John Bem, from another Portuguese family that emigrated from Pico, Azores. After witnessing the shooting of Manuel Cardoza in 1889, Rosalina and her son John fled to Centerville (now Fremont). The Bem family had its own water rights dispute with the widow of Alex Owens, who had built the “Owens Ditch,” and who had sold land to Manuel Cardoza. In defiance of repeated subpoenas, Rosalina Bem refused to return to Siskiyou County for the trial. In sworn testimony, her attending physician, Cyrus H. Allen, M.D., noted that, “her appearance is that of a person who has suffered much.” He attributed her absence to “severe nervous shock,” and that “Miss Bem is, in his opinion, entirely unable to endure a journey from Alameda County to Siskiyou County.”
After 6 months of these efforts, District Attorney J. S. Beard moved to dismiss all charges against the Davidsons, citing the following reasons:
“On the grounds that Rosalina Bem, a material witness in this case… has been regularly subpoenaed… that the condition of said witness is such that no assurance can be had, or extended to the court as to any time certain at which her attendance could be secured… that said Rosalina Bem was the only eye witness aside from defendants to the homicide and without the benefit of her testimony, the people could not hope to secure a conviction.”
The Bem family did visit Scott Valley occasionally afterward but there is evidence that several family members suffered the rest of their lives from emotional difficulties. A still-living cousin of Suzanne Romaine said of John Bem, “He was ‘haunted by poltergeists’ after that, and believed he was a part of the coroner’s jury – the ‘haunting’ was retribution for (a guilty conscience over) calling it justified.” The surname of one of the inquest jurors was “Beem,” which created confusion causing many folks to believe he had actually served on the coroner’s jury. In Portuguese, the name “Bem” is sometimes pronounced with a hard E.
After all these years it is unlikely that we will ever know with certainty what really happened out there by that ditch. The statute of limitations never runs on murder, but it is doubtful that the participants who were actually there are too concerned about it now, 130 years later. On the other hand, it may be a matter of honor among their descendants.
As the 19th century gave way to the 20th, the Cardoza and Davidson families mended fences and, according to Cardoza descendants, became close friends. In a document about her childhood “best friends,” granddaughter Flossie Cardoza wrote of the Davidsons, “What a joy they were to all of us.”
But for those that experienced the events of 1889 first hand, all was not so easily forgotten. The fate of Charles Davidson may have been some consolation to the older generations of the Cardoza family. Following the death of Manuel Cardoza, Charles had a successful life, becoming lieutenant governor of the Alaska territories. But he died quite young, in an unusual drowning accident off his own boat. Maria Neves Cardoza said of his drowning, “And then he had more water than he could ever want.”
Bob Kaster 