The Journal of San Diego History
Spring 1978, Volume 24, Number 2
Thomas L. Scharf, Managing Editor

Author of numerous books and articles on San Diego’s legal history

The following article is from a biography being written about Oliver S. Witherby, the first Judge of the San Diego-Los Angeles judicial district; beginning early in 1850.

Witherby, an Ohio lawyer who had served in the war with Mexico, came to San Diego in June, 1849 as a member of the Boundary Commission that surveyed and established the international border. Later he was elected to the first legislature which, in turn, appointed the state’s first judges.

Visions Of Empire

Oliver S. Witherby
Oliver S. Witherby, judge,
businessman, legislator and one time owner of Devil’s Corner

WHEN Oliver S. Witherby terminated his district judgeship early in 1853 and entered upon his duties as collector of customs in one of the old hide houses at San Diego’s La Playa,1 some persons thought that his stature in the community was deteriorating. Lieutenant George Horatio Derby, the engineer-funster who temporarily was assigned by the Federal Government to change the point of discharge of the San Diego River, spoofed the new Witherby sinecure as one of insignificance at a port unknown to navigators.2

The ex-judge may have been in a position to have the last laugh. His job was part of the policing agency of the government and even paid dividends when the collector received his salary of $3000 per year.

There were foreign ships that entered the harbor, but sufficiently interspaced in schedule so that the collector had most of his time available for practicing law. Court records show that he was much in demand as counsel, which would be expected of one who had just occupied the top judicial office in southern California. The public assessor’s estimates also established him as one of the community’s wealthiest men.3

For the better part of two decades Witherby specialized in holding remunerative public positions that were undemanding of his time and permitted him to pursue professional and business opportunities as he chose.

There were more reasons, however, than those just mentioned for the Judge’s decision not to run for a second term. Around the leading citizens of San Diego the atmosphere was yeasty with excitement and expectation. A man with vision knew that “manifest destiny” was more than a national concept and that it applied to individuals as well.

As Witherby watched the ships come and go in 1853 in the second finest harbor on California’s coast, he knew that Federal authorities had just authorized surveys for a transcontinental railroad.4  He had just been appointed on the local committee to study routes that could bring such a railroad to San Diego,5 where, by general state and national consensus, the anticipated line was expected to terminate. What seemed an imminent linking of rails and sails would make the silver gate city a metropolis, and Witherby’s job as customs collector a veritable bonanza.

Another wine-like ferment existed in the thinking of many persons. It concerned proposed highways. Judge Witherby also held membership on a committee to plan a good road to the north,6  through present-day Escondido to San Bernardino. There it would connect with the Mormon-used road to Salt Lake City and thus provide tidewater access to the whole Mormon “empire”.

There was far more economic realism in such a road project than would be apparent without an understanding of what had happened in and around the San Diego-San Bernardino axis between 1847 and 1851.

The famous Mormon Battalion of several hundred men, recruited in Illinois and Iowa for service in the war with Mexico, drove the first wagon train to the Pacific coast, arriving in San Diego in January, 1847. Here they made outstanding civic contributions. Some of them also served in the San Luis Rey Valley and at the Cajon Pass above the Lugos’ San Bernardino Rancho.7

Captain Jefferson Hunt of the Battalion’s Company A had returned to Utah in 1847 after his military duty. The Mormon leaders then commissioned him and eighteen others to leave for the neighborhood of San Bernardino Rancho in November, 1847 to obtain seed-grain, cattle and fruit cuttings for use in the Great Salt Lake area.

Following the Hunt party as it returned homeward was another group from the Mormon Battalion whose members previously had re-enlisted and had just completed duty at San Diego. They left the latter city on March 21, 1848 with a wagon loaded with seed and fruit cuttings. It was the first wagon ever to make the Southern California to Salt Lake journey. The Hunt party used pack animals.8

Meanwhile the owners of the Lugo Ranch at San Bernardino were becoming disenchanted with their holdings there and sold out to the Mormons. On June 10,1851 Jefferson Hunt arrived with five hundred of his people to settle permanently in that beautiful valley which, at the beginning of California’s statehood, was a part of San Diego County—about one hundred miles north of San Diego bay.

The addition of five hundred white Americans to the population of predominantly Mexican southern California not only triggered but exploded the desire of San Diegans to link themselves with such an economic potential. The project seemed particularly practical because of former residential and transportational connections between citizens of San Diego and many Mormon acquaintances who now permanently had moved south from Utah.

Witherby’s plans encompassed not only the proposed San Diego to Utah road but an equally important one to the east. Rumors and discussions were rife about prospective stage lines to and from San Diego county. Some of these soon materialized, such as the famous Butterfield operation.

The place the ex-judge envisioned for himself will be mentioned shortly. First, however, two other portions of the canvas should be unfolded to view. They involved capital—two different kinds of it.

The first of these concerned livestock. The wealth of southern California always had been on the hoof. New stage lines and wagon trains to San Bernardino and Salt Lake City would require thousands of horses. The increase of population by railroad, stage and sea would demand the services of thousands of animals for drays, buggies, agricultural power, and saddle riding. A great ranch to produce horse flesh would be a gold mine, because prices were bound to be high.

Furthermore, the very hide house in which the collector of customs had his office brought reminiscences of fortunes from other stock-raising enterprises, namely, the cattle business. For decades the clipper ships had brought Atlantic coast products around Cape Horn, receiving payment in hides and tallow. Some of that business still existed, but after 1850 the cow counties of southern California grew rich by furnishing the meat and the tallow candles for booming San Francisco, Sacramento, and innumerable mining camps of the mother lode country. As one example, in 1852 Cave Couts left for the north with eight hundred cattle and a hundred mares.9 The San Diego County Supervisors later ordered deputy assessors sent “to the District of San Luis Rey Township, to assess the animals or stock generally, now daily being driven from this county.”10 In 1853-54 profits from cattle raising were at an all-time high.

There also was excitement about gold mines. Some of them materialized.

So much for one aspect of “capital”. Even all of those dreams, however, were less grandiose than were visions connected with the spelling of the word another way—the Capitol.

Far more important than metalic gold, in the opinions of men of carpetbagging characteristics, were whispered expectations of a strike of riches in the hills and vales of politics.

“Divide the State!” the leaders of southern California were urging.11 Most of them were copperheads, pro-Southern sympathizers who had little in common with political views of the Northern supporters around San Francisco bay. If the envisioned program could be successful there would be a new State’s capital and countless new offices to be filled in its Capitol Building. What could prevent the first district judge from becoming Chief Justice of the Supreme Court of a new state? Or the Governor? Here were prospective riches surpassing the jewels of Ophir!

The copperheads actually got those jewels into their hands only to watch them slip through their fingers. In 1859, after the plan had germinated successfully for a few years, Andres Pico introduced a bill in the California legislature arranging for a division of the State with the southern area forming the “Territory of Colorado”.12 It was passed by a two-thirds vote and sent to Washington for approval, but died there in the turmoil of events leading up to the Civil War. More about that demise will be mentioned later.

In 1853-54, however, Witherby only knew that chances for a new state were excellent. Where would its capital be? There were at least six reasons for him to take action quickly, and in a big way.

He did.

Rancho Rincón Del Diablo

A survey map of Rancho Rincon del Diablo made in 1884

A survey map of Rancho Rincon
del Diablo made in 1884

After thorough inspection of possible railroad routes into San Diego it appeared to earlier investigators that the logical and proper one would be along the road long used by travelers between San Diego and Fort Yuma. It was the route that had been followed by the Mormon Battalion, by General Kearny’s unit, and by other subsequent military journeys between the bay and the desert. It also was the way almost all non-military travelers journeyed. Samuel Warnock and Joseph Swycaffer used the route for carrying government dispatches and mail between San Diego and Fort Yuma.13 Other routes had been surveyed—Jacumba, Mission Valley, San Luis Rey River—but the long traveled way seemed the best.

Quite obviously any stage line and improved highway to the east would follow the same course.

In the early 1850s travelers to the east from San Diego left by way of Rose Canyon, Poway, Escondido, San Pasqual, Ramona, Santa Ysabel, Warner’s Ranch, and thence southeasterly through inner-mountain valleys to the desert.

The idea that Witherby grasped very quickly was that the owner of a tract of many thousands of acres of fertile land, at comparatively low altitude and through which the prospective railroad would run, could well make its owner a multi-millionaire from stock raising alone.

If main highways to the north and east passed through such property that would be icing on the cake. More particularly, if such an estate could be far enough from San Diego to require a division point on the railroad before it started up the mountain grades, there would be a town—a new town where an owner’s cheap land could be sold for town lots at city prices.

Fortunately for Witherby he knew of exactly such a tract of land. Undoubtedly he knew of its availability before he decided not to run for a second term of his judgeship because its owner had died a few years before and the heirs were not carrying on with former activities on the property.

The land involved was a tract of some twenty square miles in the area where the city of Escondido is now located.

Witherby envisioned his new city as being a couple of miles south of the present Escondido site, where the west-bound railroad cars from Georgia and Texas would glide down the valley from the hills, discharge their freight and new residents, and sweep on south to the harbor of the sun.

It seemed that the mystical survey of that city had been designed in heaven as the strategically placed capital of the anticipated new State of Colorado. As with well located state capitals, the place was in a somewhat central position between what then were the more major population areas.

San Bernardino with its five hundred Mormons was about seventy-five miles to the north. And those people were truly “saints” compared with their neighbors to the west—a hoodlum element that made Los Angeles the toughest town west of Santa Fe in the 1850s. San Diego, thirty miles to the south, actually had a population so small that its citizens were ashamed to publicize election returns, although they believed their city would become the metropolis of the south coast. The Fort Yuma area, on the other hand, in the southeast corner of the State, was then the boom spot of southern California with its Colorado River ferries and steamships, its well populated government garrisons, its mining wealth, and thousands of argonauts coming and going each year in connection with search for the riches of El Dorado.14

Escondido, which had picked up its name during the de Anza visit there, would have been a principal rail center between the desert and the coast. Considering its abundant water, fertile soil, exceptional climate, and being in the geographical bull’s eye, the ex-judge had good reason to build there his castles in Spain in the form of an envisioned capitol building in Colorado.

In 1843 the Mexican Governor had granted three square leagues in the present Escondido area to Juan Bautista Alvarado who built an adobe home on the place. There were about thirteen thousand acres that had become known as Rancho Rincón del Diablo—The Devil’s Corner. The reason for the name is not clear. Alvarado and his oldest son died before California became a state. The balance of the heirs became scattered.

The San Diego-Fort Yuma road passed through the Rancho at a point where it adjoined the Indian rancheria of San Pasqual. Any new wagon road to Temecula and San Bernardino normally would go through The Devil’s Corner, just as Highway .395 did many years later.

In 1853, and possibly earlier, Witherby began to look up the Alvarado heirs from whom he would need deeds to perfect a title. He also started a movement to have an official government survey made to replace the hit-and-miss type of boundaries the Rancho had known since 1843.

Although the official survey was not filed for record until 1858, the Judge began purchasing quitclaim deeds from Alvarado heirs in October and December 1855, and in January 1857.15 These interests protected him so sufficiently that he felt warranted in moving to the Rancho in 1857 after losing his job as collector of customs. His protection lay in his legal right to demand a partition-sale of the property if other heirs refused his offers to buy them out. In fact he did file an action against the ones holding out, but maneuvered an out-of-court settlement that gave him complete title.

The Judge paid $2,216.66 to obtain full ownership of some thirteen thousand acres—about 17.5 cents per acre.16 For some reason he always listed the Diablo acreage as 13,316.

In 1856, according to his assessment statements, the Judge acquired over 2,200 additional acres of the adjoining Rancho San Marcos, on the west. This whole magnificent domain of some 15,500 acres, with many hundreds of head of livestock, certainly was one of the great San Diego County ranchos.

Witherby had many responsibilities in connection with the ownership of so large an estate. But, before mentioning his ranch activities it would be well to describe his remunerative government jobs.

As indicated previously, picking political plums was a regular part of the Judge’s know-how. In 1855 and 1856, while he still was collector of customs, he was elected a member of the San Diego County Board of Supervisors (also in 1858). This position was extremely influential, even if not too lucrative. In 1857 he had lost the customs job because U.S. Senator Broderick from California recommended appointment of another man in reprisal for Witherby’s earlier support of his long-time friend, J.B. Weller.17

The ex-district judge (and ex-customs collector) immediately sought the job of Public Administrator, a real prize for an out-of-town man. The records are contradictory as to who held that office in 1857-58, but by 1859 Witherby definitely had nailed down the post and held it until 1867.18

As Public Administrator, during practically all the years that he was at Rancho Rincón del Diablo, he worked through the probate court in San Diego administering the estates of persons who had died without known heirs. There were many such cases in a country of pioneers who were thousands of miles from home. The fees available from this job were often lucrative. The work was easy and so sporadic as to cause little problem to a holder of the position who lived thirty miles from the courthouse. His legal practice also continued, as his services were sought from time to time in important cases of wealthy litigants.

In 1857, the year Witherby moved north to his Rancho, he was appointed another kind of judge—a judge of the plains. The county supervisors, as authorized by state law, annually selected some fifteen to twenty men to hold the important position for a year.19 Appointees didn’t receive much pay, but they had ego-satisfying authority in connection with law enforcement. Most of them engaged in a pattern of round-robin socializing in connection with their duties, to the extent that their virtue (or lack of it) was sufficiently its own reward.

Judges of the plains (jueces del campo) functioned under a California statute of 1851 as the principal law enforcement officers of the vast livestock industry in each county. Such officials were a holdover from the Mexican regime, which in turn had borrowed the system from sheep raisers of Spain.

Herds of cattle and sheep, sometimes by the thousands, were regularly traversing unfenced southern California as local ranchers, as well as drovers from northern Mexico, herded their animals toward markets in the booming central areas of the State. Judges of the plains on horseback were expected to protect locally-owned stock and also cultivated fields, orchards and gardens, from thefts, trespasses and other depredations frequently associated with migrant mass drives of animals that were often under careless or unscrupulous management. In such connections the officials had powers of a sheriff.

Judges of the plains also had duties of supervising the butchering of stock, and of registering brands on all hides, of which there were many thousands per year. This was done to prevent poaching.

As a judge of the plains for several years Witherby undoubtedly was engaged in the activities just mentioned. But, it was in connection with rodeos, where such judges played an important role as mediators when needed, that his social life can be both inferred and presumed—clear proof being unavailable.

San Diego was without a newspaper during most of the years that Witherby was domiciled at his Rancho, and evidence about rodeos during that period has come from other sources. The statute demanded that such round-ups had to be held between fixed annual dates by every ranch owner who possessed as much range stock as Witherby is known to have owned.20

The diary of Dr. George McKinstry for October 9,1861 says that he was at Rancho Rincón del Diablo on that day, and notes: “All hands out at rodeo.” On the l0th he wrote that all hands were at the rodeo at neighboring San Pasqual. On the 11th he commented that Witherby and others had moved over to Couts’ rodeo.

From an unidentified early newspaper this comment has been found: “The annual roundup of the Escondido ranch became a feature of back country life.” It also is known from newspaper reports both before and after the non-journalistic period of 1860-1870 that business and pleasure were lavishly joined at rodeo time at Guajome, Hedionda, Santa Margarita, and other rodeos.21

What went on at these repetitive social extravaganzas? Most of the wealthy white Americans were unmarried. There were a few eligible daughters of the former Californios, but considering normal interests of Spanish-Mexican blades there simply were not enough women to go around. Yet, almost unanimously, the reports of rodeo parties have depicted a rollicking musical, bacchanalian “high old time”.

A closer, more intimate, investigation must be attempted in order to discover some of the meagerly reported goings on in The Devil’s Corner.

Guys And Gals

The master of Rancho Rincón del Diablo did not operate a common inn—only an uncommon one.

The principal narrator of happenings at Witherby’s place during the years 1859-1861 was Dr. George McKinstry who practiced his profession from his own ranch at Santa Ysabel (sometimes he called it Mesa Grande).22 The main road from San Diego via Escondido to Fort Yuma ran through or by his place.

Dr. McKinstry was a relative of Elisha W. McKinstry of California’s Supreme Court and once had been a sheriff in northern California. He had served with Witherby on San Diego County’s Board of Supervisors in 1855. He traveled about the county on a white mule, aided the afflicted, and kept a brief daily record of his goings and comings. Three years of his diary are in the San Diego Historical Society Library.

McKinstry regularly noted inconsequential aspects of the weather and occasionally commented on more important occurrences such as earthquakes and floods. The most striking items of his record, however, are so naive in their inferential disclosures that he certainly would have written differently if his medical training had followed, instead of preceded, Freud.

His writings, interspersed with items of utter trivia for some days, are over-all shocking in their recitals of repetitive gatherings of goodly numbers of men. These persons were more or less prominent in the early history of San Diego County and were mostly bachelors. The wives of the minority probably didn’t know that their spouses regularly congregated at The Devil’s Corner, and often for days at a time.

In the first ten months of the diaries, for instance, Dr. McKinstry stopped at the Witherby Rancho an even twenty times, and often from two to five days at a visit. These were not professional calls and usually there were at least a half dozen other men between thirty and forty-five years of age who were present during part or all of his visits. Actually there were more of these sessions than McKinstry remembered to jot down. One other unmarried gentleman has left a record of his having been at Witherby’s place during the same ten-month period and on a date not mentioned by the Doctor’s diary. He states that Dr. McKinstry was on hand along with the customary group of other gentlemen.23

At other times during this same period of ten months some of the same men collected at McKinstry’s own place. Again, they were noted as having spent several days together at Agua Caliente hot springs, and at San Pasqual. Twenty-five men are named as having been present at these gatherings at different times, and a half dozen of them were “regulars”—present for at least a dozen of the multi-day meetings.

With inconsequential exceptions nothing is mentioned in McKinstry’s diaries concerning what these seemingly boon companions did to occupy their time. No meals are described, no card games, drinking bouts, conversations or entertainment. Nothing is mentioned about servants or sleeping accommodations. One exception to the latter item is that the Doctor relates that on one evening Witherby “finished the bottle” and, very much intoxicated, spent the night on a mat in front of the fireplace.

It is a strange, shadowy picture, but the Doctor’s meager information is positively voluminous compared with anything handed down by Witherby himself. After a search over several years there has not been found a single letter or report by the Judge. He left a few business memoranda that explain nothing about the real nature of the man.

Before jumping to a conclusion that the Witherby “gang” may have been a bit gay, a careful consideration should be given to the women who undoubtedly abounded in the ranch home at The Devil’s Corner. Unmentioned by Dr. McKinstry, they may well have been considered by him as unmentionables. These were Indian women, and the story of their genre in western America must be mentioned in order to understand the social milieu at Rancho Rincón del Diablo in the mid-nineteenth century. It should be remembered that there were less than a dozen white women in San Diego as late as 1866.24

In America’s past the “Indian Love Call” has sounded far beyond the audible performances of an operetta. Both real and fictional Indian women have stirred the imaginations and the hearts of countless white men. Pocahontas and Sacajawea (who guided Lewis and Clark) were of the first type, while Hiawatha’s Laughing Water, and Alessandro’s Ramona were brain children of almost equal fame. America’s much-traveled military men and government engineers of the nineteenth century have left radiant writings about the loveliness of younger Indian women, including numerous encomiums about the beauty of the girls of several tribes in San Diego and Los Angeles counties.25

These native women were regularly reported as not only being physically shapely and attractive, but also as sensually minded, and wholly uninhibited sexually. Their desirability certainly was not diminished by their uniformly overt willingness to cooperate with the romantic desires of white men whom they half idolized as virtual gods. It has been written by students of this period that the pinnacle of ambition of most Indian girls was to be taken over by a white man.26

The standard of cleanliness among these women was very high, considering living conditions at the time. It is said of the Cahuilla Indians of southern California, for example, that among the females personal hygiene and bodily cleanliness were emphasized with a mystical and almost religious fervor.27 Native women also were clever in the use of scents and other small allurements.28

Another trait appreciated by many of the rough and hardened trail-men was the relish of Indian women in doing almost anything sexually that only prostitutes would consent to do back in the settlements—things that still are forbidden by law in many states.

The great difference in the Indian girls, however, was a complete absence of prurience. Sex was practically a worship service at the shrine of procreation. Bodies were left undraped because they were more beautiful that way. The Indian maidens lived as nature’s unspoiled children, just as the pre-missionary Polynesians had lived, and as non-prudish but virtuous peoples had lived since Eden. Some four thousand years ago, for instance, in the highly cultured paradise of Minoan Crete, as their vases and reliefs still show, the women were mostly undraped, unashamed, and far from unassuming of life’s sensual pleasures.29

White men who had been brought up in prudish Victorian society where females covered their ankles and were taught to be ashamed of sex, found a field day of enjoyment among women who were glad not only to accept, but to make, overtures for intimacy. Many of the western-type men actually preferred the companionship of an Indian girl to that of a white woman.30

It didn’t take long for the hundreds of Indian tribes between the Mississippi and the Pacific Ocean to discover this hankering of white men for their females, and to take advantage of it in a big way. The slave trade in Indian women and children began.31

To satisfy the whites’ cravings for what to them had all the lure of forbidden fruit, tribesmen traded away their younger women for horses, guns, liquor or what-nots. They also raided enemy tribes to acquire young females to dispose of to traders, trappers and argonauts. The trade value of a satisfactory girl was about $400. Even Sacajawea, before joining the Lewis and Clark expedition, had been kidnapped from her Shoshoni people in Idaho, carried hundreds of miles eastward, and eventually either sold, or paid over for a gambling debt, to a French trader.32

Congressional and territorial legislative bodies in the mid-nineteenth century investigated and condemned these practices, if for no other reason than because many tribes were destroying themselves for lack of sufficient females to perpetuate the group.33

In San Diego county the problem was exactly the same. At San Pasqual, for instance, even as late as 1871 the special Indian Agent who visited and inspected the rancheria right next door to The Devil’s Corner, wrote that “the practice of selling young girls to white men prevailed to an alarming extent at the rancheria.”34

Researchers report that in the 1860s in and about the San Pasqual area there were “white men with Indian housekeepers.” It was a common practice. Joseph Smith, who had been a respected overseer of the Butterfield Stage enterprise through San Diego county in 1858-59, was murdered in 1868 by the foreman of his Palomar ranch—”legend says because of his infatuation with Smith’s Indian housekeeper.”35

Judge Witherby, Smith’s almost neighbor, and friend, had charge of the sale of the latter’s property at the ranch. The buyer, “George Dyche, a Virginian of good family”, moved in and lived with an Indian girl.36

Similar illustrations could be multiplied.

There was another, sometimes correlative, method for procuring Indian girls (also boys, if desired) with more of an atmosphere of legality. The “legislature of a thousand drinks” (Witherby present) enacted an innocuous appearing statute in 1850 for “Protection of Indians”, but which actually provided for domestic peonage and forced labor under judicial decree.37 The system was a direct descendant of the encomienda regime started in the West Indies shortly after 1500.38 It involved the idea of a “protector” for young natives, whereby they could be brought under personal auspices of the landowning conquerors in order to learn civilized and Christian ways of living.39

The early docket books of San Diego courts show examples of this beneficent system in operation. In one typical case a sixteen year old girl was delivered by judicial decree to a man for the purpose of being trained in the ways of American culture. She probably liked it, and so did he. Whatever was paid to parents or the tribe in these instances (if anything) is not a part of the public records.

There were about one hundred Indian rancherias in San Diego county in mid-nineteenth century plus some thirty ranchos, in addition to some large farms and a few small villages. No owner of a rancho, whether he was a Californio or an Anglo-Saxon, ever conceived of the idea of any manual labor being performed by him or by any member of his family. The great pool of practically unpaid help came from Indian rancherias.

The crux of these matters, as far as Witherby’s Rancho Rincón del Diablo is concerned, is that he required at least a hundred, if not double that number, of Indians and half-breeds to keep his place in operation. The rancho entities of that period were like self-sufficient manors or towns of the feudal age.

No record has been found of the exact size of the work-force on Witherby’s ranch. But, ample evidence exists about the amount and kinds of labor on ranchos of similar or lesser size in the same general area. These ranchos, incidentally, have left no record of such heavy traffic in tourists, guests, hangers-on (and perhaps accomplices) that kept The Devil’s Corner as busy as a bank’s revolving door immediately prior to its pre-holiday closing.

One similar rancho had twenty rooms to house “four woolcombers, two tanners, carpenters, shoemakers, harness makers, gardeners, milk and cheese men, dressmakers, sewing women, washer women, cooks.” The list goes on and on, and finally says that a hundred lesser kinds of Indian help came in each day the Indian village.40

The duties were endless: curing olives, making raisins from grapes, drying peaches, apples and other fruit for after-season use. There was growing and storing of potatoes, turnips, onions, peppers, and other vegetables that were not too perishable. Butchering duties were an almost daily task in the days of no refrigeration.

Reports from another similar rancho said of the Indian women, “four or five are occupied by grinding corn; six or seven serve in the kitchen, and nearly a dozen are employed at sewing and spinning.”41 It then is added that there are several girls who serve the personal needs of the master.

Anyone who thinks that Witherby’s Rancho Rincón del Diablo was a sleepy little homestead doesn’t know what it means to operate over fifteen thousand acres with garden lands and orchards, from one to two thousand head of stock, and with all the retinue of dependent help.

Anyone who thinks of The Devil’s Corner as a sweet and heavenly demesne of a virtuous Victorian country squire will find it difficult indeed to understand Herbert Tingsten’s statement in his recent book Victoria and The Victorians:42 “At country house parties the host was often hard put to it to know how to allot the bedrooms so that the guests who were not married to each other could keep their nightly assignations discreetly.”

All That Glitters. . .

In card games there is always the lurking possibility that one holding a royal flush can be flushed, and that a grand slam hand can let its bidder down.

Judge Witherby knew, and rightly, that he held a powerful hand, but the breaks were against him. It was a grand slam all right, and he was the recipient.

In the first place, the prospects of making a fortune from stockraising began to dry up, along with the sun-scorched once-grassy hillsides, when a three-year drought commenced in 1855. Before ranch owners could recover from the starvation losses of thousands of head of stock the Civil War put a quietus on practically the whole economy of southern California.

To terrestrial travail was added terror. In 1862 a killing epidemic of smallpox decimated work-forces as the unvaccinated Indians either died or refused to venture beyond their own doorways. Doctors from San Diego vaccinated hundreds of Indians in the county,43 but fear was universal. W. B. Couts shot and killed a man for attempting to bury a person, dead from smallpox, in the cemetery at San Luis Rey.44

Indeed, speaking of cemeteries, in the words of a Los Angeles county journalist, the whole San Diego area was as “quiet as a village graveyard.”45 Without any attempt to make a sales profit, those who had to feed themselves and their workers were further broken in spirit and substance by another killing drought in 1863-65. Truly, the Day of Judgment was succeeding Armageddon. Almost no one had money; many lost their land and all assets. In 1862 even Witherby, once well-to-do, had to borrow $1000 at interest of 1.5% per month to see him through. From every ranchero’s standpoint it could be said that the stock market was less than bearish. It was threadbare.

The railroad rah-rahs also ended up not worth a toot. The only rails that ever were laid during half a century between San Diego and Fort Yuma were a few fence rails. There were steamed up puffing promoters, but no puffing steam motors in the county’s backcountry during Witherby’s lifetime. Local pro-Southerners, under the influence of national leaders like Jefferson Davis, had wanted the transcontinental railroad along the 32nd parallel for political reasons. San Diego’s copperhead leader, and later Confederate General, Lt. Col. John Bankhead Magruder, had been the first president of the first railroad corporation in San Diego, and Witherby its vice president. When Civil War threatened, Magruder and many Southern sympathizers left for the South. The boosters who remained were left with the only steaming behemoths between the coast and the Colorado River-over-weight Cupeños and Cahuillas in their temescal steam baths at Warner’s, Vallecitos, and other hot springs.

The envisioned improved wagon road from San Diego to San Bernardino never got off the ground, or (more important) on it. The Mormons discovered quickly that the distance to Los Angeles was much shorter than to San Diego and the intervening terrain less mountainous. However, a Federal contract for a stage line from San Diego to El Paso and San Antonio was let by the Postmaster General in 1857. (At The Devil’s Corner the proprietor’s pulse must have pitapatted). The operation started immediately, but almost as immediately was cancelled by order of President Buchanan who had the contract switched to his friend, Butterfield, with provision that the route by-pass San Diego on its way to Los Angeles and San Francisco. (The pulse probably sputtered and puttered). The original operators tried to continue for a brief period but soon changed their main route to a road that was far south of Witherby’s place; from this they had most of their passengers ride over Cuyamaca Mountain on mule back, thus earning for their line the term “Jackass Mail”. For the man at The Devil’s Corner the whole result was as incredible as a jackass female.

Whatever happened to the Territory of Colorado, and to the people who promoted it? They were out-dueled! Or so it seems.

At the identical time that the southern Californians were having labor pains in the delivery of their new entity to the Fathers in Washington, there was another area, on the eastern slope of the Rocky Mountains, whose inhabitants were busily organizing a proposed new “State of Jefferson” (1858). Like their counterparts in southern California they were making overtures to have it enter the Union. The “Jefferson”, however, was opposed as sounding too pro-Southern by prominent Northerners, including James W. Denver, a past Governor of the area, and thereafter a Union General.

It so happened that this same Denver had been a state senator in California in 1852 where he killed one Edward Gilbert, the state’s first congressman, in a duel. The winner of that affair became in rapid succession California’s Secretary of State 1853-55, and his victim Gilbert’s successor in Congress, 1855-57. After that he became Governor of Kansas Territory which at that time included practically all of the present state of Colorado. His political influence was sufficient to enable him twice to be a candidate for President.

Denver had known at first hand all about the copperhead activities in southern California relative to the establishment there of the “Territory of Colorado”. Politically he disliked the promoters, and didn’t want them to get their new pro-Southern state into the Union. He also had been strongly opposed to having slavery in Kansas.

Using knowledge he had gained from extensive political activity in California, he not only helped to block the southern Californians’ proposal, but reached for his killer weapon: Let those knocking on the doors of Congress for a state to be called “Jefferson”, he demanded, change that unsatisfactory name to “Colorado”-and be welcomed! And as he recommended, so it was done.46

Now there never could be a Colorado in southern California. The whole lollypop fell off the stick, and to intensify the coup de grace, the name of one of the leading little towns of the eastern Rockies, St. Charles, was changed to Denver and became the state’s capital.

Alas, the capital of Colorado (albeit, a different one) was supposed to be Escondido!

The things that had glittered for Witherby turned out to be less than gold. But, since Escondido could be neither a railroad division town, nor a state capital, the Judge decided to create a gold mining boom town. There had been some half successful prospecting on the rancho about 1850, and quartz veins were known to exist. (There was a later flurry in 1894).

Miners who worked on a percentage basis were brought in and established a typical western-type camp. In late 1859 their shaft was forty feet into the hill. A steam engine for crushing ore was put in place. Other things associated with miners also arrived. In 1860 Dr. McKinstry’s diary noted that three “French women” from the east got off the stage. Probably they were not the first.

Although only small amounts of gold ever received notice in public records, some letter writers of San Diego mentioned the operation favorably47and many golden words were poured into the ears of visitors at the ranch. Things were so good, Witherby told his visiting judicial successor, Hon. Benjamin I. Hayes, that he was willing to sell out at a bargain price of $30,000 so he could assuage his homesickness and return to Ohio.48

The truth is that at that identical time he made a sworn statement to the county assessor that the total 15,500 acres with all buildings, improvements and mining equipment, plus over a thousand head of livestock, had a fair market value of somewhat less than $10,000.

By November, 1861 Dr. McKinstry thought so little of the Witherby mining venture that he never mentioned it again. The Judge, himself, pondering the matter, decided to get dead drunk.

He did.49



1. San Diego Herald, August 20,1953, 2:1.

2. Quoted in Richard Pourade, The Silver Dons (San Diego: Union Tribune Publishing Company, 1963).

3. Witherby File, San Diego History Center Library and Manuscripts Collection (Hereinafter cited as SDHC Library).

4. U.S. Stats. at Large, March 3,1853, p. 219.

5.San Diego Herald, May 21, 1953, 2:1.

6. Ibid., April 1, 1954, 2:1; April 22, 1954, 2:2.

7. See Leland Stanford, San Diego’s L.L.B., A History of Law and Justice in San Diego County (San Diego: San Diego County Bar Association, 1968), p. 51.

8. Ibid.

9. Pourade, The Silver Dons, p. 191.

10. Minutes, San Diego County Board of Supervisors, April 7,1857.

11.Rockwell D. Hunt, “History of the California State Division Controversy,” The Annual Publications of the Historical Society of Southern California XIII (1927), p. 41 writes: “During the first decade of statehood the question of division came up in some form in nearly every session of the legislature.” Public assemblies were held in the three southern counties in 1851, and the legislative sequence began in 1852.

12. Journal of the Assembly, California, 1859, pp. 564-565. Statutes of California, Tenth session, pp. 310-311.

13.Mary Rockwood Peet, San Pasqual: A Crack in the Hills (Ramona: Ballena Press, 1973).

14. Stanford, San Diego’s L.L.B., pp. 57-64.

15. Mrs. Frances Ryan, author of several treatises about Escondido, spent many days in the office of the San Diego County Recorder collecting photo copies of the instruments by which Witherby secured title from the Alvarado heirs. These copies are available in the Escondido Public Library.

16. Frances Ryan, Early Days in Escondido (Escondido: Privately Printed, 1970), p. 22.

17. San Diego Herald, May 16, 1957, 2:1.

18. Ibid., September 10,1959, 2:2.

19. Leland Stanford, “San Diego’s Judges of the Plains,” The Journal of San Diego History, XV (Fall, 1969), pp. 27-32.


21. San Diego Public Library, Newspaper Index, Rodeos.

22. McKinstry File, SDHC Library.

23. Judge Benjamin Hayes, Pioneer Notes From the Diaries of Judge Benjamin Hayes, 1849-1875, ed. by Marjorie Tisdale Wolcott (Los Angeles: Privately Printed, 1929), p. 206.

24. Elizabeth MacPhail, ed., “Early Days in San Diego: The Memoirs of Augusta Barrett Sherman,” The Journal of San Diego History, XVIII (Fall, 1972), p. 29.

25. Harold Howard, Sacajawea (Norman: University of Oklahoma Press, 1971). See also Stanford, San Diego’s L.L.B., pp. 57, 61.

26. Winifred Blevins, Give Your Heart to the Hawks (Los Angeles: Nash Publishing, 1973).

27. Lowell John Bean, Mukat’s People (Berkeley: University of California Press, 1972).

28. Howard, Sacajawea, pp. 57, 61 and Blevins, Give Your Heart to the Hawks.

29. Ronald Willetts, Everyday Life in Ancient Crete (New York: Putnam’s Sons, 1968).

30. Blevins, Give Your Heart to the Hawks.

31. Le Roy Hafen and Ann W. Hafen, The Old Spanish Trail (Glendale: Arthur H. Clark Company, 1954).

32. See Note 25.

33. Hafen, Old Spanish Trail, pp. 277, 280.

34. Peet, San Pascual, p. 61.

35. Catherine M. Wood, Palomar: From Tepee to Telescope (Privately Printed, 1937), p. 50.

36. Ibid.,55 and ff.

37. California Stats., 1850, pp. 408-410.

38. Hafen, Old Spanish Trail, p. 259.

39. Ibid.

40. Saddleback Ancestors, Rancho Families of Orange County, California (Orange County, California, Genealogical Society), p. 76.

4l. Ibid.,p.90.

42. Herbert Tingsten, Victoria and the Victorians (New York: Delacorte Press, 1972).

43. Leland Stanford, “San Diego’s Medico-Legal History, 1850-1900,” The Journal of San Diego History, XVI (Spring 1970), p. 20.

44. Ibid. People v. Couts (Blount) File in the Office of the San Diego County Clerk.

45. Pourade, The Silver Dons, p. 264.

46. J. C. Smiley, History of Denver (1903), p. 216; O. T. Shuck, History of the Bench and Bar of California (1901), p. 227; and Dictionary of American Biography (1930), pp. 242-243.

47. Witherby File, SDHC Library.

48. Hayes, Pioneer Notes, p. 204.

49. McKinstry Diary, November 23,1861, SDHC Library.