USA > California > San Francisco County > San Francisco > History of the San Francisco Committee of vigilance of 1851 : a study of social control on the California frontier in the days of the gold rush > Part 13
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Even when the provisions of the Act to Regulate Elections were observed, the electors might have lived in a given locality but a month, and formed little acquaintance with their fellow-citi- zens. Often the candidates were almost unknown to their con- stituents. In such cases there was no way of securing reliable information as to their characters or past records, and any man ambitious for office could easily force himself upon the attention of the public.13
One of the best known political incidents of early days was the election of the sheriff of San Francisco, in May, 1850.14 The Democratic candidate was Colonel J. J. Bryant, owner of the best hotel in San Francisco. He spared no expense in winning votes, kept open house with a generosity that nearly proved his ruin, and stationed bands to play in a balcony for days before the election. His chief rival was Colonel John C. Hays, who had won celebrity by service with the Texas Rangers on the Mexican border. Hays had been a resident of San Francisco about two months, and ran as an independent candidate. This contest was the most exciting of the campaign and was conducted, on both sides, with enthusiastic meetings, music, and torchlight possessions. Animated electioneering was kept up as long as the polls were open, and the tide of popular favor was not decisively turned until Hays appeared, mounted on a magnificent
13 In August, 1849, Burnett accomplished the election of a friend from Missouri within forty-eight hours of the latter's arrival in Sacramento (Recollections, 335-336).
14 See Davis, Political Conventions, 10; Annals, 269-272. Hays an- nounced himself as a candidate in the same issue of the paper that chronicled his arrival in San Francisco (Alta, 1850, Feb. 1). His adventures as a Ranger are told in S. C. Reid, Jr., Scouting Expeditions of McCulloch's Texas Rangers, 1847, pp. 108-116.
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horse which he reined through the noisy streets with a skill that called forth the wildest applause. A throng surged around him, eager for recognition and the clasp of his hand, the music of his opponent was drowned in shouts of greeting, and when his excited steed finally dashed away through the eheering crowd the day was won for the Texas Ranger. The choice was most fortunate for the eity. "Jack" Hays, always a popular and pic- turesque figure, proved an upright and efficient sheriff, and we shall hear much of him during the summer of 1851. His election was typical of a condition of society where the choice of officials depended all too largely npon trivial accidents and the momen- tary impulses of the voters.
The men who were elected by these aggregations of compara- tive strangers were commissioned to control the local affairs of California for many months without fear of effective reproof or restraint. In many places the personnel of the community changed again and again before their terms expired, while standards of citizenship shifted with equal rapidity.15 In such fluctuating conditions there was special need for sagacity and real executive ability on the part of those in authority. vet the small salaries of public office failed to attract the more able citizens who could win much larger rewards in commercial pursuits.
In California during the decade of the fifties there were men of every type and character in the major and minor offices of the state. A traveler wrote of one of the remote districts :16
One of the judges of this court is at the same time a justice of the peace, sign painter, postmaster, miner, engineer, carpenter, doctor, boarding-house keeper, and assistant surveyor of the district-having thus ten independent
15 " It was a common observation, until very large investments of capital necessitated permanency of residence, that there was not a mining town in California that did not have an almost entire change of population every three years" (Hittell, California, III, 108).
16 California and Its Gold Mines [by Allsop], 124. Characteristic of 1850, although written December, 1852.
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functions, all of which he fills with credit to himself and advantage to the community. You will often find a man on the bench one year, and in the middle of the river the next.
Another described as follows the magistrates of Murderer's Bar:
There is a justice of the peace (up to his arms in the river just at present), and there is a constable (who has been "prospecting" a bag of earth from the hill, and been rewarded with a gold flake of the value of three cents) ; these two, one would suppose, could scarcely control two or three hundred men, with rude passions and quick tempers, each of whom, as you observe, carries his revolver even while at work. But these armed, rough-looking fellows themselves elected the judge and constable, and stand ever ready, as "specials," to support them.
But the same author also regretted that many judges had been elected who had hardly any knowledge of the law, and were subservient to the dishonest class from which they received their offices.17
Contemporary estimates of the public service were typified by the assertion made in the San Francisco Evening Picayune, that there was scarcely a legislative, executive, or judicial officer in the state who did not regard his position solely as a means of obtaining money for a speedy return to the East.18 In spite of such assertions, Bancroft wrote of the period :19
I may safely say that the judges on the whole were honest men. ... On the Supreme bench, and presiding over the district and county courts, par- ticularly in the cities and more thickly populated parts, have been from the first occupation of the territory by citizens of the United States until
17 See Frank Marryat, Mountains and Molehills, 1855, pp. 236, 389. 18 Picayune, 1850, Sept. 2 91.
19 Bancroft, California Inter Pocula, 582. But contrast his statement: "In a few instances, before the year 1850 had expired, justices of the peace and judges had been impeached and driven from their seats by the people. But compared with those who at this time were acenstomed, either openly or in secret, to take illegal fees, to extort, accept bribes, or other- wise violate their oath of office, the number punished was insignificant" (ibid., 590).
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the present day, as able and erudite jurists, men of as broad and enlightened intellects, as might be found elsewhere in Europe or America. Some were dissipated, but for the most part they were men of integrity.
Whatever may have been the personal characters of Califor- nia's judges in 1850, the courts over which they presided quickly became notorious for their failure to conviet and punish crim- inals, especially those who could pay for skilful defense. In the opinion of the contemporary public this immunity was almost universally attributed to flagrant corruption within professional circles, and later critics have found it very easy to make similar strictures. Corruption there was, for it was inevitable that many unworthy officials should find their way into positions of responsibility and time showed that not a few of them had past experiences of disreputable quality. Royee severely condemned the "persistently wicked neglect to choose good public officers" that made the mining society the "friend and upholder of the very roguery that it flogged and hanged."20 The student who desires to make a fair estimate of the situation, however, must take into account all the conditions that hampered the admin- istration of justice, even when there was a righteous zeal on the part of the public servants.
Mention has already been made of the general result of the low ratio of salaries of public office to the ordinary profits of business, but particular attention must be called to its effect upon the selection of prosecuting attorneys. There were in California many men who had studied and practiced law before the gold rush attracted them to the Pacific Coast, and who were glad to return to their profession as soon as the courts were
20 Royce, California, 337. The difficulty of choosing suitable officials was clearly recognized by Saint-Amant (Voyages, 399). A striking example of California conditions is given by the story of Paul Geddes, of Pennsyl- vania, who under the alias Talbot H. Green, was a leading candidate for mayor of San Francisco in 1851. His real identity and past irregularities of conduct were discovered on the eve of election (Bancroft, California, III, 765-766; Davis, Sixty Years, 325; Alta, 1851, April 16 23).
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established. Fees were so large in both civil and criminal cases that the private practice of a competent lawyer insured a large income while the small salaries of the prosecuting attorneys21 did not attract men who were fitted to cope with the counsel retained to defend the prisoners at the bar. In consequence, the criminal courts were quickly at the mercy of clever and well paid lawyers, who imposed upon them every possible technical evasion until the whole machinery of the law became a shield for the criminal rather than a safeguard to the community.22
Not only were the odds during the trial largely in favor of the defendant, but in cases of conviction he had an excellent chance to escape because of the total lack of secure jails. The failure of the various communities in California to provide adequate prisons even after five years of American occupation, has been severely censured23 as an evidence of a selfish reluctance to spend some of the common wealth in preserving and upbuild- ing the social order. As a matter of faet, public improvements had been out of the question in settlements that had no consti- tutional right to levy taxes, or to make contracts.24 San Fran- cisco purchased a prison brig in 1849; Sacramento did the same in 1850, and smaller towns improvised places of confinement as best they might ;25 but before permanent structures could be com- menced it was necessary to organize the counties, choose county seats, vote funds, and arrange many details of construction.25
21 The salary of a district attorney was $2000 (California, Statutes, 1850, chap. 25, p. 83).
22 Prisoners were quite ready to pay their lawyers fees of $1000 (P. A. Roach, Statement of Historical Facts on California, 1878, p. 8, MS in the Bancroft Library). The anecdotes told by L. A. Norton show how easily guilty men could be freed on technicalities (Life and Adventures, 279-290).
23 As by H. K. Norton, Story of California, 1913, p. 246. 24 See the experiments in Stockton, supra, p. 119.
25 The bark La Grange was bought for a jail at Sacramento (History of Sacramento County, 87-88). The early jail in Los Angeles was an old adobe residence, and prisoners were chained to a pine log for safe keeping (Horace Bell, Reminiscences of a Ranger, 1881, p. 51). The first public building of Contra Costa County was a stone jail, built in 1850, a poor affair
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An organie defeet of the earliest statutes of California that has usually eseaped the attention of historians was the provision that deprived loeal justiees of the peace of any criminal juris- dietion beyond the office of examining magistrate, and referred trial for all petty misdemeanors to the Court of Sessions, which met at the county seat onee in every two months.26 The effect of such a system upon criminal conditions in the mining regions was inevitably disastrous. It was the duty of the local justice of the peace to arrest suspected persons; if evidenee justified their commitment for trial, he was then bound to deliver them to the sheriff of the county.27 This necessitated the transpor- tation of the prisoner to the county seat, which was often far away from the scene of the offense, sinee some of the counties were as large as states on the Atlantie seaboard.28 In many eases the journey could be made only on horseback, and it af- forded countless opportunities for eseape or rescue.
Moreover, for the prosecution of such trivial misdemeanors as breach of the peaee, assault and battery, and petty larceny,
from which prisoners easily escaped (Illustrations of Contra Costa County, 12). In 1851 Auburn had a log jail for a county prison ( History of Plaeer County, 97). W. B. Ide, justice of the peace at Monroeville, Colusa County, in 1852, built an iron cage for the confinement of prisoners, and placed it out of doors in the shade of a tree (J. H. Rogers, Colusa County, 1891, pp. 77 78). In 1849 Riley had proposed to devote some funds to improving jails (Cong. Docs., Ser. No. 561, Doc. 52, pp. 19, 20, 37-3 1.
26 The Court of Sessions was composed of the county judge and two assistant justices of the peace. It was also entrusted with the duties which at present usually devolve upon a board of supervisors (California, Statutes, 1850, chap. 46, p. 210; Rodman, History of the Bench and Bar of Southern California, 341.
27 California, Statutes, 1850, chap. 44, p. 118, sec. 3. Some justices seem to have exercised criminal jurisdiction, as did the illiterate Richard C. Barry, of Sonora, whose docket is a wonderful specimen of the public archives of 1850 (History of Tuolumne County [ by Lang], 65-70; Ban- croft, California, VI, 470; and his California Inter Pocula, 630-633). "The jurisdiction of justices of the peace in 1850 to 1851, who were then the only judicial officers known in these diggings, was a little shadowy, or very substantial, as the reader pleases" (History of Nevada County, 99). See also the tales of Justice Bonner, of Butte County (Illustrated History of Plumas, Lassen and Sierra Counties, 1882, pp. 208-209 ).
28 Coy's Guide to the County Archives contains maps showing the boundaries of the original twenty-seven counties, and subsequent changes.
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it was necessary that the witnesses also should take the same journey, and remain in attendance upon the trial while counsel gained postponement after postponement. If the crime was of a serious nature it was tried in one of the District Courts, which also met at the county seats, and held from three to five terms a year. In such cases an indietment by the grand jury was a prerequisite to trial.29 All these vexations delays not only burdened witnesses with the cost of living at wretched and expensive inns, but they involved the risk of forfeiting mining claims because of protracted absence and cessation of work.30 Under these circumstances it proved to be impossible to keep witnesses together for the slow progress of law, and any prisoner was almost sure of discharge if his lawyer could sufficiently retard the prosecution of his ease.
In the mining regions, where improvement was most imper- ative, state control failed most signally to accomplish any imme- diate betterment. As soon as counties could be organized and local magistrates elected, all the offices peculiar to the Mexican system were discontinued. Justiees of the peace and judges of the lower courts took the places of the alcaldes, who from that time had no legal status in California, although for some years they were occasionally chosen to supply the immediate needs of new and remote settlements.31
In 1850 Yuba County was so large, and the "trouble, expense and time required to send criminals to Marysville were so great, that many escaped the just punishments for their acts, while others were severely dealt with by Judge Lynch" (Illustrated History of Plumas, Lassen and Sierra Coun- ties, 423).
29 See California, Statutes, 1850, chap. 33, p. 93, chap. 119, p. 288, sec. 176. The District Courts took cognizance, also, of civil and chancery cases. They superseded the Mexican Courts of First Instance (ibid., chap. 23, p. 80, sec. 28).
30 No fees were allowed witnesses in criminal cases (California, Statutes, 1850, chap. 138, p. 421, sec. 15). The Alta, 1851, Oct. 15 %, noted the impossibility of securing the attendance of witnesses under these circum- stances.
31 See Shinn, Mining Camps. 187. The miners of Chinese Camp appointed an alcalde and a sheriff in September, 1850 (Heckendorn & Wilson, Miners § Business Men's Directory .. . 1856 ... of Tuolumne, 83). John Carr spoke
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The old alcalde had usually been a fellow-worker among his constituents, with personal interests identical with theirs. The new justice often belonged to the elass of political loafers. He had, moreover, an assurance in office that had not existed under a system that swiftly recalled unpopular alcaldes as soon as a majority of the camp might vote to do so. In consequence there was no longer the close accord between executive and community that had characterized the earlier organization.
Up to this time any given camp had enjoyed sueh security of life and property as the majority of its residents chose to enforce by the rules of mass meetings and the discipline of miners' courts. Now the exercise of criminal jurisdiction was removed from local control, for the justice of the peace could do no more than examine prisoners and if he saw fit hand them over to the sheriff of the county for arraignment in the proper court. This act of transfer immediately removed the criminal from the persons interested in his punishment, so that unless his offense had been particularly heinous, his fate became a matter of indifference to his former neighbors. In cases where popular indignation had been highly inflamed the notorious mis- carriage of justice in the courts gave rise to a universal distrust of legal procedure, and ineited the miners to administer retri- bution for themselves.
The increasing disorder aroused a spirit of resentment against the authorities that resembled the antagonism expressed during the period of the military control. The majority of the men of the mining camps in the fall of 1850 were of the same fiber as were the men of 1849: many of them were the same individuals who had condueted the popular trials which had
of a trial before a California alcalde, probably in February or March, 1851, and said that no one in Weaverville paid any attention to politics or law, until about June, 1851, when the camp was stirred to curiosity by the advent of a party of horsemeu who looked too well dressed to be miners and too honest to be gamblers, and who proved to be candidates for the offices recently created for the new county of Trinity (Pioneer Days, 116, 128).
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preserved California from overwhelming anarchy and blood- shed. In their sovereign capacity, and out of the elements of chaos, they had formed a state, ordained laws, and appointed servants to execute the will of the people. Yet in spite of their labors they found the servants inefficient or unfaithful, and the laws so poorly adapted to the special needs of the community, and so poorly executed withal, that crime increased, while rob- bers and murderers laughed at statutes and courts, and at jails and jailers.
The ideals of popular sovereignty had not perished from the land when the cannon of Monterey announced the signing of the state constitution. History has shown that the conception of government as a social compact holds in itself the germ of potential secession. It is equally true that the conception of social order accomplished and preserved solely by the concurrent consent of the individual community contains the dormant men- ace of disorder. It is not only upon the unorganized frontier of American settlement that this dormant menace has been transformed into an active force. The tendency to deal with criminals through popular tribunals steadily accompanied what may be called the rearguard of the western advance, a zone of unstable conditions where the voluntary and temporary associa- tions of the foremost pioneers were nominally superseded by a laggard civil organization. Here lingered competent and fearless men who had by their own swiftly spoken words evoked laws out of a cosmic void, and their social conscience gave fealty, not to the rules they had thus formulated, but to the purposes which had vitalized their rules-the preservation of life and property. When formal laws, once established, failed to accom- plish these purposes, their impulse was quick to ignore the inefficient laws, and to revert to a direct and popular method of effecting the necessary results.
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Such an impulse was very apparent in California in the later months of 1850. The people recognized the failure of the courts to restrain crime, and showed a strong tendency, especially in the mining regions, to adhere to the popular tribunals that had proved effective in the previous year. They came together as of old in the miners' meetings, to regulate their mining claims. They had never drawn any niee distinctions between the civil and the criminal functions of such meetings; so they now de- sired to have suspected offenders still tried on the scene of their alleged guilt, and tried so promptly that honest men might go about their business without unreasonable delay, and they began to resent the interference of a sheriff whose duty it was to re- move the criminals from their control.32
Confliets over the possession of a prisoner became common and when they occurred the sheriff of the county faced a situ- ation that tested him to the utmost, for he was obliged to decide, often at a moment's notice, whether he would attempt a rescue at the risk of several lives. In many instances he was convinced that the accused was a murderer who richly deserved death, and that those who contemplated immediate execution were stirred by the most righteous indignation. It then seemed like a moek- ery of justice to shoot men whom he knew and respected in order to place a cowardly assassin before a court which would prob- ably condone his offense. In any case, whether the prisoner were guilty or innocent, the sheriff was aware that the local community would never complain if he yielded to the mob, and that the state authorities could neither reprove him if he gave
32 In 1850 or 1851 the miners at Sandy Bar acquitted a suspected mur- derer, and then took advantage of the large gathering to decide on the disposition of mining débris (C. S. Abbott, Recollections of a California Pioneer, 1917, p. 104). For instances of popular trials at this time, see History of Nevada County, 98, 105; Carr, Pioneer Days, 60-67; Memoirs of Cornelius Cole, 85-91; William Downie, Hunting for Gold, 1893, pp. 111- 113, 145.
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way nor help him if he chose to resist.33 Some sheriffs forfeited their lives in their determination to do their duty. Many car- ried off their men even when the odds were all against them. Many others gave way before the angry crowds and left the prisoners to trials by lynch law.
But a profound difference existed between the popular trib- unals of the days of the commonwealth and those that had been held during the interregnum. The miners' trials of 1849, con- dueted in sincere although uncouth emulation of the courts of justice, represented the popular adherence to the spirit of Law, to the principle of the trial by jury, and loyalty to the will of the majority. When the same men assembled in the autumn of 1850, arraigning, perhaps, the same culprits, for the same sort of crimes, they were no longer the symbol of the Law- that was represented by the sheriff and the dilatory courts. Then the miners' tribunals, pitted against the constituted author- ities, lost their dignity and their ideals of deliberate justice in conducting a struggle for the possession of a prisoner, and in making a hurried disposition of his fate. Inevitably they de- generated into angry mobs, that hastened to whip or to hang the accused before the sheriff could intervene, or that stormed a jail to recover a prisoner, and to forestall punishment or acquittal by the courts.34
33 When a sheriff in an American state was rebuked by the governor for permitting a lynching, the governor was bluntly told to mind his own business, as the sheriff was responsible only to the voters who had elected him ( Woodrow Wilson, "Issues of Reform, " in Initiative, Referendum and Recall, edited by W. B. Munro, 1912, p. 72). It is of interest to note here the following statement from the Herald, 1851, July 18 31: "The Sheriffs throughout the country have been more true to the interests of the people, and more honest in the discharge of their duty than any other class of officials. We know of but two instances in the State in which the Sheriff has come under the ban of public censure."
34 The Alta recorded many murders and lynchings during the autumn of 1850. See also Popular Tribunals, I, 142-178; G. H. Tinkham, History of Stockton, 1880, pp. 155-158. The lynch law of this period forms the theme of The Volcano Diggings; a Tale of California Law [by Leonard Kip], 1851,
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