The dramatic showdown between Benjamin Cardozo, 42, the future Supreme Court justice and giant of American jurisprudence, and Bat Masterson, 59, the legendary former sheriff in Dodge City, occurred in a Manhattan courtroom in 1913. Eight years earlier, President Theodore Roosevelt had appointed Masterson deputy marshal for New York City, a cushy patronage job requiring so little effort that it didn’t interfere with Bat’s other job as a sports columnist for the Morning Telegraph, where he discoursed on boxing, horse racing and other diversions. But when Masterson wrote several columns in 1911 denouncing an upcoming prizefight as a fixed “frame-up” that “should not by any means be permitted to go on,” he enraged the fight promoter, Frank Ufer. The New York Globe reported that Ufer called Masterson “an ‘alleged bad man and gun fighter’ who made his reputation by shooting drunken Mexicans and Indians in the back.”
In the insult with a blast from his six-shooter, but Masterson was a New Yorker now, so he filed a WILD WEST, A MAN MIGHT ANSWER such an $25,000 libel suit against the newspaper.
Cardozo, then an obscure attorney with a reputation as a relentless cross-examiner, had his work cut out for him defending the Globe. Not only was Masterson a popular hero of the Old West, but the Globe possessed zero evidence that he’d ever shot any drunken Mexicans or Indians in the back. With the facts against him, Cardozo relied on a time-honored legal strategy—blowing smoke. He filed a motion describing Masterson as “well-known throughout the United States as a promiscuous carrier and user of fire arms and as having shot a number of men, including Indians.” Ufer’s remarks were “humorous and jocular,” Cardozo claimed, and he requested that the lawsuit be dismissed.
Judge John Ford didn’t buy Cardozo’s argument and scheduled a trial for May 20, 1913.
That day, Masterson took the stand and testified that he’d never shot anybody—including Mexicans or Indians, drunk or sober—in the back. Cardozo was determined to convince the jury that Masterson’s reputation was already so awful that no newspaper story could possibly damage it. So he began his cross-examination by asking Masterson how many men he’d killed.
“About three,” Bat guessed, after stammering a bit. “I shot my first man I think about 1875 in the Panhandle of Texas, at a place called Mobita. He was a United States soldier, a white man. I shot my next man I think about 1878. I killed him in Dodge City, Kansas. He was a white man, a Texas cowboy. I killed my next man, I think, probably the following year, ’79. He died about 60 or 70 miles south of Dodge City. He was a white man. He was a Texan.”
A Texan? Cardozo sensed an opening. “Pretty close to Mexico did he come from?”
“Well,” Masterson replied, “there are parts of Texas that are a thousand miles from Mexico.”
Touché. The battle was on. The transcript of this verbal boxing match—recently unearthed by legal historian William H. Manz—reads like a Marx Brothers parody of courtroom combat.
“Are you sure whether you ever killed any other men or not?”
“I don’t think I ever did,” Bat replied. “If I did, I wouldn’t know it.”
“You don’t feel sure whether you killed some more men?” Cardozo asked.
“Well, let me see—I shot another man. I don’t know whether I killed him or not. I think he got well.”
“Did you ever shoot anybody else?”
At that point, Judge Ford reminded Masterson that he’d already testified that he fought battles against Indians.
“I did take part in Indian warfare,” Masterson admitted.
“About how many Indians do you think you have shot?”
“Well, I wouldn’t say that I ever shot any,” Masterson said. “I don’t know that. I certainly did try to shoot them— aimed at them. It wasn’t my fault that I didn’t hit them.”
Cardozo had studied newspaper stories Masterson and he mentioned the many melees they recounted. “Did you have a fight in a polling on place?” he asked.
“No fight. There was a disturbance,” said Masterson, recalling when a cop tried to throw him out of a polling place in Denver. “He attempted to pull his six-shooter to shoot me and I pulled mine out, put the muzzle of it right against his, and shot it out of his hand. That was all there was to it. I would not call that a fight.”
Cardozo mentioned Masterson’s legendary brawl with a Denver sportswriter bearing the delightful name of Otto Floto.
“I did have a fight with him,” Masterson admitted. “He was a great big powerful young fellow and he started to lick me. And after we had scrapped about a minute, it looked like I was getting the best of it, and Otto ran—ran like a deer. A fistfight—that is all there was to that.”
“Now,” Cardozo asked, “can you think of any other fights that you ever had?”
“I do not know of any other fights that I ever had,” Bat said. “I have never had many fights.”
“You don’t think you have been a fighting man at all?”
“No, indeed. I never had anyone accuse me of it.”
Cardozo pulled out a 1905 newspaper article, one of many profiles published when Roosevelt appointed Masterson to office. It reported that Bat had killed 27 men, not counting Indians.
“I couldn’t say that I ever saw that article before,” Masterson said. “It is not a fact that I killed 27 white men.”
Bat said he didn’t bother reading most of the newspaper articles written about him because they were so ridiculous. “I have been the victim of 35 years of space writers,” he said. “Whenever they wanted a story, they would select me for a victim and they would write anything.”
That was just what Cardozo wanted to hear. “For years before the publication in the Globe in 1911, it had been published again and again that you killed large numbers of men, hadn’t it?”
“Well, since 1905,” Masterson said. “I think it started about that time.” He didn’t pay much attention to those stories, he added: “I was not at all interested.”
“You mean to say,” Cardozo asked, “that it didn’t seem to you to be of any importance whether they charged you with killing men or not?”
“No, sir, not a bit.”
“When was it that that sort of charge began to seem to you to be important?”
“When the Globe printed that story about me,” Masterson said, referring to the article that inspired his libel suit. “I thought it was malicious. I didn’t consider there was any malice in those [other] newspaper stories.”
“What then was the element in this publication which you resented?” Cardozo asked.
“Well, it was so utterly and absolutely untrue and apparently so obviously malicious that I did resent it and I did feel hurt about it.”
After all of Cardozo’s probing and Masterson’s dodging, the jury awarded Masterson $3,500 in damages, plus $129 in court costs. Cardozo filed an appeal and a higher court reduced the award to $1,000.
A few months later, Cardozo became a judge, serving on the New York Court of Appeals until 1932, when President Herbert Hoover appointed him to the United States Supreme Court.
Masterson continued writing his thrice-weekly news – paper column. On Oct. 25, 1921, he began a column lamenting the unfairness of a world in which a prizefighter could make more money in an hour than a farmer earned in a lifetime.
“Yet there are those who argue that everything breaks even in this old dump of a world of ours,” Bat wrote. “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 swear I can’t see it that way.”
Those were his last words. His heart stopped and he dropped dead on the desk where his final column lay, half-finished.
Originally published in the October 2009 issue of American History. To subscribe, click here.