Man of Treacherous Charm: Territorial Justice Edmund C. Fitzhugh — A Book Review
With Historical Perspective from Lawrence M. Friedman’s “A History of American Law”
Sometimes we find a book in our library’s collection that provides perspective on a subject covered in another title. When we received our new book by Washington author Candace Wellman, Man of Treacherous Charm: Territorial Justice Edmund C. Fitzhugh (WSU Press, 2023), it cried out to be reviewed in light of Lawrence M. Friedman’s A History of American Law, Fourth Edition (Oxford University Press, 2019). Friedman, whose seminal book was first published in 1973, is an Emeritus Professor of Law at Stanford and a renowned scholar of American legal history. His description of frontier lawyers and judges in the American West pairs perfectly with Wellman’s character study in A Man of Treacherous Charm. Justice Edmund Fitzhugh, who served on the Washington Territory Supreme Court from 1858–1861, exemplifies the rough and tumble world of frontier lawyers and judges described by Professor Friedman in A History of American Law.
In a 2023 interview with the Salish Current, Wellman calls Fitzhugh a “thoroughly complex and weird man.” Fitzhugh was a lawyer from an aristocratic, but not wealthy, Virginia family who went West in 1849 as part of the herd of lawyers looking to make their fortunes “knowing that gold miners and new businesses would need legal expertise of every kind. Statehood was coming soon and there would be elected and appointed positions in the federal, state, and city government for lawyers.” (Wellman, p. 33) He joined a group of lawyers and investors in San Francisco that invested in the Sehome Coal Mine in Whatcom County and was sent north to be the syndicate’s local manager.
Wellman explains:
On February 13, 1854, Fitzhugh arrived at Bellingham Bay during the cold mid-winter rains. New Washington Territory was still organizing, and he made it there two weeks before territorial governor Isaac Stevens addressed the first legislature . . . For a Virginia bachelor in expensive leather boots, a business suit, and white linen shirt who was used to the stores, saloons, gambling, city bustle, and fancy women of San Francisco, it must have seemed like he’d entered a personal hell. (Wellman, p. 57)
As part of acclimating to his new surroundings, Fitzhugh did not remain a bachelor for long. In 1854 to 1855, Fitzhugh married two Indigenous women through arranged marriages, both for political and financial reasons which included caring for him and his home. Wellman notes that marriages between white settlers and women from Coast Salish communities were common, but he was one of only two white men known to have married two women, which was a “common practice among wealthy Coast Salish men at that time, often to assure support for a widow.” (Wellman, p. 63) E’yam’alth, also known as Julia, was about fifteen and from Samish Island; Qui’las*, also known as Mary, was a few years older and a widow who had lost her husband and baby during a pandemic. He had children with each wife and both suffered from his “unpredictable temperament.”
Fitzhugh’s mine was the largest employer in the territory and Wellman contends that Fitzhugh “put Bellingham Bay on the political and economic map in Olympia and elsewhere.” She paints a picture of a lawyer engaged in business who also speculated on land and lent money. He is a perfect example of Professor Friedman’s frontier lawyer: “No frontier town was too raw or muddy for lawyers. They were out to seek their fortunes in land and litigation, sometimes even in genteel larceny. Politics had an irresistible appeal for western lawyers; it was the road to fame, or fortune, or both.” (Friedman, p. 292)
As a Southern slave-holder, Fitzhugh was deeply involved in the Democratic party. He was a close political ally of Isaac Stevens, Washington’s first territorial governor turned congressional representative. Wellman notes Fitzhugh’s support of Governor Stevens’ declaration of martial law and subsequent arrest of Territorial Supreme Court Justices Lander and Chenoweth who were attempting to use habeas corpus to release some prisoners during Steven’s war against tribes in 1855–56.
Stevens later advocated, with others, for Fitzhugh to be appointed territorial justice over Chenoweth by President Buchanan. A group of settlers from Whatcom County sent a petition to the President opposing his appointment, arguing four points: (1) “[T]hat his feelings are diametrically opposed to the cardinal principles of democracy…” and that he is a “democrat from interest and not from principle…”; (2) “That he has totally estranged a very large majority of his fellow citizens…”; (3) That he lacked the qualifications of a judge, having never been to law school or joined a bar association; and (4) “That about six months ago, he shot a fellow citizen who died three days after for which he has yet to appear before a court of justice.” (Wellman, p. 116) The last point referred to an accusation that Fitzhugh had shot and killed one of his drunk miners in a scuffle outside his home.
Nevertheless, Fitzhugh was appointed to the court, taking the bench in December 1858, and then had to stand for a murder trial in March 1859. Interestingly, Wellman notes that Fitzhugh came to Olympia in December 1858 after a “severe accident” which kept him taking his seat for a week while he healed. It turns out that he had hit his wives for not having dinner ready for him when he arrived home. Julia fought back, beating him unconscious with a piece of firewood.
He exacted his revenge in 1860, taking the children while the women were out picking berries and leaving them in southern Puget Sound with a white family, who functionally stripped them of their culture, while he returned to the East Coast to campaign in the 1860 presidential election. Wellman notes that “Julia and Mary walked out on Fitzhugh and never returned. They were unable to locate their children, and never knew what happened to them until many years later when they were reunited.” (Wellman, p. 186)
Wellman does an outstanding job portraying Fitzhugh’s work on the court from 1858–1861, before he was removed by President Lincoln who appointed Ethelbert Oliphant in his stead. Her chapter on Fitzhugh’s work as territorial justice, which also included being the U.S. District Court judge for northwestern Washington, will interest many of the readers of this blog.
Territorial justice was messy and political, with a dearth of experienced jurists. In A History of American Law Professor Friedman explains:
Judgeships in the territories were strictly appointive; they were federal patronage jobs. Eager claimants badgered president after president for these positions. Some of these judges were hacks, ill-paid, ill-prepared for their jobs, almost invariably nonresidents . . . Judgeship in the West was not a genteel post. It was worlds away from the dignity of an eastern judgeship . . . A few territorial judges became famous or notorious. Kirby Benedict served as Chief Justice in New Mexico Territory in the 1850s and 1860s. The territorial secretary of state complained, in a letter to President Lincoln, that Benedict ‘visits the gambling halls and drinking saloons and with a swagger and bluster defiles his judicial robes.’ (Friedman, pp. 358–359)
In the end, this review covers just a small corner of the portrait that Candace Wellman paints of Edmund Fitzhugh. Read the book. It will help you understand the messy legal realities of colonialization during Washington’s territorial period. It will highlight the personal impact of antebellum Southern culture on the white men of privilege who were raised in it. Fitzhugh’s ruined marriages, slave holding, duels, killings, stint in the Confederate Army, gambling, and eventual death from alcoholism in a boarding hotel in San Francisco in 1883 highlight the dark realities of the 19th century in the United States. Professor Friedman’s history text is the perfect companion for understanding this biography in the broader context of America’s search for a just rule of law in an imperfect world.
Man of Treacherous Charm: Territorial Justice Edmund C. Fitzhugh and A History of American Law are available for check out from the Washington State Law Library. You can place a hold on the books in our catalog with your library account or you can contact the reference desk at 360–357–2136 or Library.Requests@courts.wa.gov with questions about checking them out. (RM)
*Wellman profiled Qui’las in her book Peace Weavers: Uniting the Salish Coast through Cross-Cultural Marriages (WSU Press, 2017)
