Posted by Randy Barnett:
Ben Cardozo Meets Bat Masterson:
http://volokh.com/archives/archive_2007_01_21-2007_01_27.shtml#1169362299
When I was a boy, I used to enjoy the series [1]Bat Masterson,
starring Gene Barry. I even had a toy Bat Masterson cane. Recently, I
started watching some old episodes of Bat Masterson on the [2]Western
Channel (Pictures and theme song [3]here). Although far from the
quality of [4]Maverick with James Garner and Jack Kelly (and later
Roger Moore), [5]The Rifleman with Chuck Connors, and [6]Wanted Dead
or Alive with Steve McQueen, I can see its appeal. In each of the
episodes I have watched so far, Bat seeks some form of justice against
wrong-doing.
The Wikipedia article on [7]Bat Masterson contained a link to the
surprising story of a libel lawsuit brought by Masterson, who ended
his career as a sportswriter for the New York Morning Telegraph,
against the New York Globe and Commercial Advertiser. After Masterson
characterized a prize fight in Madison Square Garden as fixed, the
paper had printed an article that included a statement by one of the
fighter's manager that Masterson had "made his reputation by shooting
drunken Mexicans and Indians in the back.� The publisher retained none
other then Benjamin Cardozo to represent it. Masterson sought $25,000
in damages.
In the Masterson case, Cardozo�s defense strategy rested on the
grounds that Ufer�s statement was essentially accurate, that it was
not meant to be taken seriously, and that it could not have caused
Masterson�s reputation any harm. . . .
In his cross-examination, Cardozo sought to establish that
Masterson had indeed killed several men, including Indians. His
initial question to Masterson was: �How many men have you shot and
killed in your life?� Masterson denied killing 28 men as repeatedly
reported by the press. Instead, he ventured that the number was
probably three, a soldier in Texas who had shot him first, a Texas
cowboy in Dodge City who had just fatally wounded his brother,
Sheriff Ed Masterson, and another Texan, a wanted murderer, in
1879. He added that he had also shot a man in Dodge City in 1881,
but didn�t know if he�d killed him or not. As for Indians, he
professed not to know whether he�d ever shot any, noting that in
battle �I certainly did try to shoot them. . . . It wasn�t my fault
that I didn�t hit them. . . . I haven�t any idea of and can�t give
you any notion as to whether any of them fell under my fire.�
You can read the whole story [8]here, but the article includes these
excerpts from Cardozo's cross-examination of Masterson:
Record at 22:
Q. Now, do you think of any other fights that you ever had?
A. Well, I am not thinking; I suppose you are doing all the
thinking. I do not know of any other fights that I ever had; I have
never had very many fights.
Q. You don�t think you have been a fighting man at all?
A. No, indeed; I never had any one accuse me of it.
Q. How many fights have you had?
A. Well, I am 59 years old, and I have been � I can�t tell you. I
told you all about the serious troubles. The fist fights, if that
is what you are referring to, I couldn�t tell you anything about
that.
Record at 23:
Q. Your counsel asked you whether you ever carried a pistol. When
did you stop carrying a pistol?
A. When I ceased to be an officer. That has been a good many years
ago. I was a United States officer here, and never carried any; and
I haven�t carried any in New York for the last ten years. The last
time that I carried a pistol was, I think, probably in Denver when
I was acting as Deputy Sheriff.
Q. Did you ever carry a pistol in the City of New York?
A. Yes, sir.
Q. Then it wasn�t the last time that you carried a pistol when you
were acting as Sheriff in Denver was it?
A. No. I had almost overlooked the New York incident.
Record at 24:
Q. You were arrested on the charge of being mixed up in a crooked
faro game, weren�t you?
A. Well, I never knew what I was arrested for; there was never any
complaint against me.
Q. You mean to say that you didn�t make any inquiry as to what the
charge against you was?
A. No; I never learned. I attempted to. I heard what they said, and
that is all I know about it.
Record at 26�27:
Q. You have, in your judgment, quite a reputation in this town,
haven�t you Mr. Masterson?
A. Well, I don�t know what you mean by �reputation�; good or bad?
What do you mean?
Q. Well, you are well known, � generally known, I mean?
A. Well, yes; yes, sir; I am very well known. I was well known when
I came here. I don�t think my reputation had been made by the
affrays which I had been engaged in, in the West.
Record at 32:
Q. You have killed a great many men including your affrays in the
Indian War, haven�t you?
A. I think I have stated all here.
Q. Well, you are proud of those exploits in which you killed men
aren�t you?
A. Oh, I don�t think about being proud of it. I do not feel that I
ought to be ashamed about it; I feel perfectly justified. The mere
fact that I was charged with killing a man standing by itself I
have never considered an attack upon my reputation.
The jury returned a verdict $3,500 for Masterson, along with $129.25
in costs. Cardozo appealed and the Appellate Division reversed the
trial court by a 3-2 vote, and awarded a new trial unless the
plaintiff stipulated to a reduction of the verdict to $1,000. Less
than a month after the appellate decision, Cardozo became a trial
court judge. Masterson died in 1921 while working at his desk. His
last words were found in his typewriter in the column he had been
writing:
There are those who argue that everything breaks even in this old
dump of a world of ours. I suppose these ginks who argue that way
hold that because the rich man gets ice in the summer and the poor
man gets it in the winter things are breaking even for both. Maybe
so, but I'll swear I can't see it that way.
References
1. http://en.wikipedia.org/wiki/Bat_Masterson_%28TV_series%29
2.
http://www.encoretv.com/appmanager/seg/e?_nfpb=true&_pageLabel=movie_detail&vid=2972907&eid=21
3. http://www.fiftiesweb.com/tv/bat-masterson.htm
4. http://en.wikipedia.org/wiki/Maverick_%28TV_series%29
5. http://en.wikipedia.org/wiki/The_Rifleman
6. http://en.wikipedia.org/wiki/Wanted:_Dead_or_Alive
7. http://en.wikipedia.org/wiki/Bat_Masterson
8. http://www.skyways.org/orgs/fordco/mastersoncardozo.html
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