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 2
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9 See Lois K. Mathews, "The Mayflower Compact and Its Descendants." Mississippi Valley Historical Association, Proceedings, VI (1912-1913), 79 106: F. J. Turner, "Western State-Making in the Revolutionary Era," American Historical Review, 1 (1895-1896), especially pp. 70-87; Allen Johnson, "Genesis of Popular Sovereignty," Iowa Journal of History and Politics, 11I (1905), 3-19.
10 See Theodore Roosevelt, Winning of the West, 1889-1896, 1, 101-133.
11 See North Carolina, Colonial Records, 1886-1890, Introductions to VII, VIII. The agreements of the Regulators, accessible through the Index of this series. are very suggestive of the records of the Committee of Vigilanee. The Regulation movenient may be further studied in J. E. Cutler. Lynch- Law, 1905, chaps. 2 3; David Ramsay, History of South-Carolina, 1809, I, 211-215: J. H. Wheeler, Historical Sketches of North Carolina, 1851, I, 48-60; II. 10-20, 301-331; J. S. Bassett, "Regulators of North Carolina." American Historieal Association, Annual Report, 1894, pp. 141-212; M. DeL. Haywood, Governor William Tryon, 1903, pp. 77-194; S. A'C. Ashe, History of North Carolina, 1908. I. 336-376; Archibald Henderson, "Origin of the Regulation in North Carolina," American Historical Review, XXI (1916), 320-332.
11
Introduction
years that elapsed before the neighborhood was incorporated as Washington County in the state of North Carolina.12
Immediately after the Revolution many western settlements took the initial steps in local organization without waiting for action of the Continental Congress. In one case, indeed, the state of Franklin sustained itself in isolated democracy for sev- eral years.13 The land clubs and claim associations of the Old Northwest applied the same principle of voluntary alliance to the mutual protection of homesteaders' rights, and were based ou written agreements that furnish some of the most character- istie documents of American local history.14 "All through these compacts," wrote Professor F. J. Turner, "runs the doctrine that the people in an unoccupied land have the right to determine their own political institutions," and he cited a declaration made by a committee reporting to the legislature of Wisconsin as late as 1843, in which it was stated that all "political communities have the right of governing themselves in their own way within their lawful boundaries."15
12 See J. G. M. Ramsey, Annals of Tennessee, 1853, pp. 106-140; Roose- velt, Winning of the West, I, chap. 7.
13 See Ramsey, Annals of Tennessee, 283-444; G. H. Alden, New Gov- ernments West of the Alleghanics before 1780, 1897; and his "State of Franklin," American Historical Review, VIII (1903), 271-289; "Petition for a Western State," Mississippi Valley Historical Review, I (1914), 265-269; Roosevelt, Winning of the West, II, 324-369; III, 153-202; A. W. Putnam, History of Middle Tennessee, 1859, pp. 89-103; Archibald Henderson, Richard Henderson : the Authorship of the Cumberland Compact und the Founding of Nashville, 1916; C. S. Lobingier, The People's Law, chap. 8. Citizen committees did useful work in Mississippi in 1797 and 1798, see F. L. Riley, "Transition from Spanish to American Rule in Mis- sissippi," Mississippi Historical Society, Publications, III (1900), 275-311.
14 See B. F. Shambaugh, "Frontier Land Clubs or Claim Associations," American Historical Association, Annual Report, 1900, I, 67-84; and his Constitution and Records of the Claim Association of Johnson County, Iowa, 1894; Jesse Macy, Institutional Beginnings in a Western State [Iowa], 1884; Brigham Johnson, "Frontier Life in Iowa in the Forties," Maga- zine of History, XVIII (1914), 23-28; G. E. Howard, Introduction to the Local Constitutional History of the United States, 1889, I, 411-412.
15 Turner, "Western State- Making," American Historical Review, I (1895-1896), 265-266. The characteristics of the frontier as a form of society rather than as a geographic area are further discussed by Professor
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Vigilance Committee of 1851
The American precedent of vohmtary association was fol- lowed by the revolutionists in Texas when they sought indepen- denee from Mexico. In 1835 they formed loeal "committees of safety," primarily to provide protection against Indians, and these beeame the nnelens for the general representative Council of Safety which for a time constituted the central government.16 The provisional government of the people of Oregon, one of the most successful experiments in frontier organization, was another striking example of social agreement. It is said that the very term "compact" was preferred to "constitution" by some of the leaders of the movement,17 and provision was made for the voluntary withdrawal of anyone who might desire to revert to the unsocial state of nature by discontinuing his finaneial eon- tributions to the common cause.
Successive experiments and expanding national life have modified the theory of the social compaet. Our people have learned that even in a democracy changes in adopted contracts must be made in orderly ways, and that, if we are to have a government of law rather than of caprice, there must be some "machinery short of revolution"18 to determine whether the eompaet has been observed. But it has been necessary to reeog- nize here the powerful influence exerted upon American thought
Turner in various articles collected in his The Frontier in American History. 1920. See also his List of References on the History of the West, ed. of 1913; Justin Winsor, Westward Movement, 1763-1798, 1897; R. T. Hill, The Public Domain and Democracy, 1910; the opening chapters of W. E. Weyl, The New Democracy, 1912.
16 H. K. Yoakum, History of Texas, 1856, 1, 337, 355-379, passim; H. H. Bancroft, History of the North Mexican States and Texas, II (1889), 155 et seq. ; H. S. Foote, Texas and the Texans, 1841, II, 83-86, 128 et seq .; "Journal of the Permanent Council (October 11-27, 1835)," Texas State Historical Association, Quarterly, VII (1904), 250-278.
17 See J. R. Robertson, "Genesis of Popular Government in Oregon,"' Oregon Historical Society, Quarterly, I (1900), 1-59; W. H. Gray, His- tory of Oregon, 1870, p. 336 et seq .; H. H. Bancroft, History of Oregon, 1886-1888, I, chaps. 12, 16, 18; H. S. Lyman, History of Oregon, 1903, III, 274 et seq .; W. C. Woodward, Rise and Early History of Political Parties in Oregon, 1913, pp. 13-34; Oregon Archives, 1853.
18 A. B. Hart, National Ideals Historically Traced, 1907, p. 100.
13
Introduction
by this theory of the state, because it found enduring expression in many of the institutions of the frontier, and asserted itself very definitely in California during all the period under our especial consideration.
Closely linked with the conception of a state based on a voluntary compact was the distrust of a centralized form of government which profoundly influenced the men who inaugu- rated the social life of our nation. The utmost liberty of action in domestic affairs was demanded by all the local groups and they subordinated their individual rights with reluctance to any superior authority. One result of this attitude was the develop- ment of a loose system of state government in which there was a marked sacrifice of efficiency in conducting matters that pertained to the common welfare. But self-government, not efficiency, was the passion of the first American colonists, and that passion they transmitted to the sons and grandsons who continued their work. Fathers and sons, alike, dared to be inefficient and to make mistakes, if in that way they could learn for themselves how the self-governed might perform those social tasks which had previously been centralized under kings and ministers of state.
One of the most difficult problems that arose under the decentralized system of American local government was the suppression of disorder in the outer line of settlements that constantly advanced beyond the convenient operation of the law, and from a very early period the frontiersmen exercised a self-assumed criminal jurisdiction which was commonly sustained by the mutual consent of the neighborhood immediately con- cerned. Professor Turner said :19
It was the multiplicity of revolutionary associations, and the ease with which they might run into the form taken by the Vigilance Committees of the far West, that led even so ardent a follower of revolutionary principles
19 Turner, "Western State-Making," American Historical Review, I (1895-1896), 265-266.
14
Vigilance Committee of 1851
as Patrick Henry to declare in 1786 regarding the defenseless condition of the western frontier, "that protection which is the best and general object of social compact is withdrawn, and the people, thus consigned to destruc- tion, will naturally form associations, disgraceful as they are destructive of government."
Even before Patrick Henry uttered his warning, the possi- bility of which he spoke had already become a reality. The Regulators of Colonial days had bound themselves to make eom- mon cause against horse thieves and other eriminals, and they had subsequently arrested such undesirable neighbors, tried them in a summary fashion, and chastised the guilty by stripes deemed appropriate to their misdeeds. The general exeitement and dis- order incident to the Revolution stimulated the tendency towards the punishment of criminals or unpopular persons by groups which assumed a quasi-representative function. The famous Bos- ton Tea Party was a manifestation of such an impulse, and the numerous committees of safety throughout the colonies consti- tuted an efficient foree for the pursuit and punishment of sus- pected Tories.2º An interesting summary of these Colonial and Revolutionary movements is given in the opening chapters of J. E. Cutler's Lynch-Law. In the opinion of that anthor, the much disputed origin of the term "lynch law" may be traced to a self-appointed court of Revolutionary days in Virginia, where Charles Lyneh, William Preston, Robert Adams, Jr., and James Callaway disciplined the rogues and the Tories of Bed- ford County.21 After the war was ended, damages were sought
20 See E. D. Collins, "Committees of Correspondence of the American Revolution," American Historical Association, Report, 1901, I, 245-271; Agnes Hunt, Provincial Committees of Safety of the American Revolution, 1904; J. M. Leake, The Virginia Committee System and the American Revo- lution, 1917. Handbills printed in Philadelphia and New York, 1773 and 1774, suggest notices issued by the San Francisco Committee of Vigilance of 1851 (see E. M. Avery. History of the United States, 1904-1910, V. 168-169).
21 Cutler, Lynch-Law, 13-40. See also H. H. Baneroft, Popular Trib- unals. 1887. I. 6-7; The Green Bag. IV (1892), 561-562. Before the Revolution Lynch had acted as a justice of the peace (Lunch-Law, 25 note) and Preston and Callaway had also represented the colonial government as lieutenants of the county (Green Bag. V [1693], 116).
15
Introduction
for some of the penalties inflicted, but the General Assembly of Virginia decided that the proceedings, while not strictly war- ranted by law, were justified by the imminence of the danger.
A like necessity constantly existed all along the line of the westward advance where there was always a definite element of dangerous eriminals. The same impulse towards organization that moved the pioneers to combine in land claim associations led them to seek protection from lawlessness by concerted effort to secure the punishment of crime. It became a general custom to improvise a kind of pseudo court wherever and whenever a flagrant offender ineurred publie censure.22 There was also a marked tendeney to increase the severity of punishment; while discipline prior to 1830 was seldom more severe than whipping, the frequent executions of a later date made the term "to lyneh" almost synonymous with "to hang. ''23
A popular trial destined to attract wide attention was that of a murderer named Patrick O'Conner, convicted in May, 1834. by the people of Dubuque's Mines, in unorganized country north of Missouri. The courts of Illinois had no jurisdiction in the region, and during the month that elapsed before the sentence was executed the governor of Missouri refused to interfere, while an appeal to President Jackson elicited the reply that even he had no authority in the case, as the laws of the United States had not been extended over that part of the Louisiana Purchase. O'Conner was finally hanged with the solemnity befitting a legal execution. In commenting on the case the Niles Register said :24
22 The Green Mountain boys of Vermont protected their land titles by lynch law (the use of the birch) in the days of early settlement (Turner, "The Old West," in his Frontier in American History, 78). See also Roosevelt, Winning of the West, I, 132 note 1, 187 note 1; J. L. MeConnel, Western Characteristics, 1853, pp. 171-245 passim.
23 Cutler. Lynch-Law, 116 et seq.
24 See also Eliphalet Price, "Trial and Execution of Patrick O'Conner," Annals of Iowa, ser. I, III (1865), 566-574; Jesse Macy, Institutional Beginnings. in a Western State, 7-8; Cutler, Lynch-Law, 86-88; Niles Register, XLVI (1834), 352; Des Moines Register and Leader, 1910, Sept. 25.
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Vigilance Committee of 1851
As law, in every country, emanates from the people, and is, in fact, whether written or not, nothing more nor less than certain rules of action by which a people agree to be governed, the unanimous agreement among that people to put a man to death for the crime of murder, rendered the act legal to all intents and purposes. ... They have taught the world that the people are the basis of law, even where no written law ean be applied.
Turner has said that the Westerner, impatient of restraint, placed himself under influences destruetive to many of the gains of civilization, but that he knew how to preserve order even in the absence of legal authority. "If there were eattle thieves, lyneh law was sudden and effective : the regulators of the Caro- linas were the predecessors of the claims associations of Iowa and the vigilance committees of California .... If the thing was one proper to be done, then the most immediate, rough and ready, effective way was the best way.''25
Baneroft ealled these extra-legal eourts "popular tribunals." The term describes them well and at the same time it relates the popular trials of the American frontier to the protective measures adopted by European communities in periods or crises when central governments were not strong enough to preserve order. Popular committees and associations for the suppression of crime have been of importanee in the social development of many nations. Trial by popular assembly was a recognized practice in the Athenian democracy, as well as in the Teutonic tribes before the development of the jury system.26 The Vem- gericht of Germany and the Santa Hermandad of Spain and the Spanish colonies were not only supported by the people at large but were tolerated and sometimes fostered by the authori- ties when justiee could not be administered by due process of law. The medieval towns of Franee had their defensive
25 Turner, "The Problem of the West," in his Frontier in American History, 209-212, passim.
26 See Victor Duruy, History of Greece, tr. by M. M. Ripley, 1890, I, 538 et seq .; Sir H. S. Maine, Early Law and Custom, 1886, chap. 6.
17
Introduction
confréries. The local history of England and the Scottish border recounts many acts of extra-legal retribution.27
The inter-relation of these various tribunals and of the many secret societies which are allied to them is a subject far more inclusive than the study of any particular local committee, and generalizations can have little value unless they are based on exact knowledge of the many associations involved.28
No attempt has been made in this volume to cover so wide a field, or to question how far the popular tribunals of this eentury were indigenous and spontaneous, and how far they were influenced by European tradition and inheritance.29 The social emergencies of the American frontier were very different from the social emergencies of medieval Europe, whatever may have been the kinship between the sturdy pioneers of the West and the resolute brotherhoods of earlier centuries.
For more than two centuries, and under many varying circumstances, the American pioneers experimented in empire building from the Atlantic Ocean to the shores of the Pacific.
27 See L. J. Paetow, Guide to the Study of Medieval History, 1917, "Vemgerichte, " p. 292, "Hermandadas," p. 321; Lavisse and Rambaud, Histoire générale, II (1893), 466; Lynn Thorndike, History of Medieval Europe [1917], 534 et seq .; R. B. Merriman, Rise of the Spanish Empire, I (1918), 191-194; II, 99 et seq .; C. E. Chapman, History of Spain, 1918, pp. 155-156.
28 Allied associations are discussed in Cutler, Lynch-Law, 5-12; Ban- croft, Popular Tribunals, I, chaps. 1, 3.
29 In California there was a definite point of contact between Anglo- Saxon and Spanish precedents as the Santa Hermandad had been highly developed in certain parts of Mexico (see Bancroft, History of Mexico, 1883-1888, III, 272-276). J. W. Dwinelle said that twenty years before the American occupation of California parties of reputable colonists were obliged to pursue outlaw soldiers and kill them like wild beasts. "The Vigilauce Committees in California are therefore a tradition of the Mexico- Californian régime" (Colonial History of the City of San Francisco, ed. 3, 1866, p. 87). In 1836 there was a deliberate execution by a popular tribunal, when the people of Los Angeles tried and executed a man and woman guilty of an atrocious murder. As no constitutional courts had inflicted punishments for homicide this act was approved by the community and condoned by the authorities ( Popular Tribunals, I, 62-66; J. S. Hittell, History of San Francisco, 1878, pp. 79-81; Vigilantes de Los Angeles, 1836, MS in the Bancroft Library; Vigilance Committee [of Los Angeles, 1836], MS in the Bancroft Library; Alta California, 1865, March 30 11).
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Vigilance Committee of 1851
In California they encountered conditions and emergencies that were radically different from those that had appeared elsewhere, and that taxed to the utmost all their capacity for self-control. None the less the development of California was an integral part of pioneer history, and the suecesses and the failures that attended the settlement and upbuilding of the state have a per- manent value far transcending their sectional interest.
One of the most notable episodes in the history of California was the organization of the Committee of Vigilance of San Fran- cisco, an organization which is invested with abiding significance when it is regarded as a demonstration of national life and thought, rather than as a singular episode in an isolated com- munity. But to make clear this signifieance it is not enough to relate the Committee vaguely to general tendeneies in Ameri- can society. It is imperative to perceive, as well, the special problems of California, and the exigencies which distinguished the entire interval that had elapsed since the date of the American occupation. To be explicit, we cannot understand the Committee of Vigilance of 1851 until we understand the failure of the courts to punish crime, and the consequent survival of the resort to popular tribunals. Nor can we discern the initial need of such popular tribunals and their recognized place in the life of 1848 and 1849 until we realize the extraordinary problems that developed when a hundred thousand gold seekers swarmed into a mining region that was destitute of any form of civil gov- ernment. For an explanation of this strange lack of the ordinary bulwarks of American society, we must look still deeper into the unusual status of California while it was held as a military possession of the United States during the war with Mexico, and at the changes that followed the conclusion of hostilities. Finally, in order to comprehend all the obvious and the subtle influences that called the committee into being. we must be able to appre- ciate how these years of uncontrolled, tumultuous, and intensely
19
Introduction
practical life, developed in the men of California an enormous self-reliance, and so accustomed them to improvise political and judicial organization that they tended to idealize the sovereign attributes of the "people assembled in their primary capacity" at the expense of legitimate, representative government.
Here is a group of problems which must be formulated, first of all, in the exact and simple terms of local history. Some of them receive adequate consideration in the standard works on California, but others of vital importance have been strangely neglected, or have been overlaid and confused with a mass of distracting detail. As a result, the studies already in print do not give a broad and well balanced picture of community life in California during the gold rush. It has, therefore, proved impossible to introduce the history of the Committee of Vigilance by any brief summary of familiar material, and it has been necessary to devote several chapters to a consideration of certain phases of California history that directed public action and molded private thought during the period prior to 1851.
PART I THE CALIFORNIA FRONTIER 1848 TO 1851
CHAPTER I THE SPANISH INHERITANCE AND THE AMERICAN CONQUEST
The Committee of Vigilance of San Francisco was organized on the ninth of June, 1851. California had been a recognized commonwealth of the Federal Union exactly nine months; for nearly five years she had been under the flag of the United States ; and for three-quarters of a century before the American occu- pation she had been a part of the great colonial system which Spain had planted upon the Western Hemisphere.
There had been only a brief clash of arms when the country passed from the control of one government to that of the other. California was nevertheless a field of conflict between two ideals of social order-the ideal of the Spanish-American colonists based on the civil law of Rome, and the ideal of their American successors based on the common law of England. Further, these distinct ideals, formulated by centuries of national life in the Old World, had been constantly modified by the problems of life in the New, as men of different races pushed their frontiers northward from Mexico, and westward from the Atlantic sea- board, to meet on the plains of the Southwest, and on the shores of the Pacific Ocean.
Until the close of Spanish rule in 1822, the military and ecclesiastical authorities had dominated California. Thenceforth the ecclesiastical influence declined, sinking to almost nothing after the secularization decree of 1833. At the same time the civil organization increased in importance until it vied with the military, and the Mexican system cannot be ignored in any study of the early American period, since it was perpetnated
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Vigilance Committee of 1851
as the vehicle of local administration from the date of the occu- pation until the full establishment of state government in 1850. It has been summarized as follows by one of the American military-eivil governors :1
It consists, first, of a governor, appointed by the supreme government : in default of such appointment, the office is temporarily vested in the com- manding military officer of the department. . . . Second, a secretary. . .. Third, a territorial or departmental legislature, with limited powers to pass laws of a local character. Fourth, a superior court (tribunal superior) of the Territory, consisting of four judges and a fiscal. Fifth, a prefeet and sub- prefects for each district, who are charged with the preservation of public order and the execution of the laws: their duties correspond, in a great measure, with those of district marshals and sheriffs. Sixth, a judge of first instance for each district: this office is, by a custom not inconsistent with the laws, vested in the first alcalde of the district. Seventh, alcaldes, who have concurrent jurisdiction among themselves in the same district, but are subordinate to the higher judicial tribunals. Eighth, local justices of the peace. Ninth, ayuntamientos, or town councils. The powers and fune- tions of all these officers are fully defined in the laws of this country, and are almost identical with those of the corresponding officers in the Atlantic and western States.
California, one would conelude, was provided with an adequate and nicely balanced government; and so she was, by statute. But it is necessary to accept such an obvious con- elnsion with extreme caution, as the Mexican officials had a genius for writing out organizations on paper, and for millifying their statutes in actual practice. For this reason the "laws" and the "usages" of a given community often exhibit notable discrepancies, and accounts of conditions based on a study of national regulations may differ greatly from other accounts based on the personal experiences of residents and visitors. In California the variations between law and custom offer an interesting field for careful comparison of documentary sources and of contemporary observations. Pending such a
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