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 23
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He gave details of more than a dozen robberies, and accounted for nearly $9000 in money, beside much valuable plunder in tools, household furniture and horses. Many of the raids were accompanied by brutal violence. The speaker calmly acknowl- edged having dealt the blow that knocked Jansen senseless, and seemed to feel it was greatly to the credit of the real culprits that they resolved to burn the city again if the innocent Windred and Berdue suffered immerited exeention in consequence of that assault. Several abortive plots were also described, one of which entailed Stuart's devout attendance at mass at San José, while he kept his eyes alert for certain golden images reported as enshrined in the sanctuary. The bandit named about twenty- five accomplices,36 but with all his apparent frankness he evaded . betraying certain matters which he desired to conceal. So far
35 See Papers, 225-242. Schenck said of Stuart's trial: "Witnesses were sent for from all parts of the state, and whenever he suggested any witnesses, to prove an alibi, or for any other purpose, they were sent for, at a considerable expense to the Committee" (MS Statement, 31).
36 Papers, 225 note 12.
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as we can learn, he never acknowledged his share in the murder of Charles Moore,37 although the trial of Berdue at Marysville seems clearly to have established his guilt on that charge. In the long list of companions whom he implicated in his misdeeds he made very inadequate allusion to Samuel Whittaker, who was second in leadership to himself, and shared in many of the most high-handed outrages.
Other sources of information, however, were available to the Committee. On July 8, the same day that Stuart made his con- fession, there was filed in the archives a written statement made by Joseph Hetherington,38 who was intimately acquainted with the Sydney men, especially with those who congregated at a boarding house kept by a Mrs. Hogan, where Stuart himself had sometimes lodged. This paper was dated July 7, and if it was received prior to Stuart's examination it must have been of great assistance in drawing from him details as to his associates. Hetherington showed the importance of Whittaker's position among the desperadoes, and in a later statement asserted that Whittaker had plainly told him that Stuart had shot Moore and had afterwards exhibited a large gold nugget which had been taken from the body.39
In spite of the general knowledge of Stuart's arrest,4º no official protest was made except by the eity attorney. Frank M. Pixley, whose personal convictions and whose publie position placed him in open opposition to the course pursued by the
37 Schenck said the murder "was clearly proved against him at the trial" (MS Statement, 43). Stuart alluded to the charge in exactly the same way that he mentioned the false accusation as to the murder at Auburn (Papers, 231), and the Reverend F. S. Mines, to whom he made a penitential confession, was ignorant that the charge of murder had even been laid against him (Papers, 311). It was said that at the time of execution he publicly acknowledged that his confession was true, but denied that he was guilty of murder (Sunday Dispatch, 1851, July 13 24).
39 Papers, 242-245. See also note on Hetherington, infra, p. 402.
39 See Papers, 256, 477, 480.
40 The capture of Stuart was announced in the daily papers, July 7.
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James Stuart, Outlaw
Committee of Vigilance. The reports of proceedings in the Supreme Court on July 8 and 9 show his efforts to secure the person of Stuart by a writ which summoned W. H. Jones, A. J. McDuffee, J. L. Van Bokkelen, and Stephen Payran, to produce their captive in court.41 Issuance of the writ was promptly reported to the Committee, and the gentlemen named therein were given leave to retire from the rooms.42 Service was effected in the case of the three first mentioned, but President Payran "was not found, after diligent search." When the members of the Committee appeared in the Supreme Court on the ninth, they made affidavit that they did not have said Stuart in their pos- session, and had never had such custody as would have enabled them to comply with the order.
On the petition of Pixley another warrant was then issued, directing Sheriff Hays to obtain the body of James Stuart and bring him into court on the following day. Isaac Bluxome, Jr., thus described what followed :43
Frank Pixley went to work and got out a writ of habeas corpus on us for the surrender of Stuart. We knew the writ was coming, and we did not want to refuse it, and so I borrowed a long cloak and slouched hat, aud Oaks [Oakes] and I dressed Start up in them and took him to Endicott & Oaks building on First St. between Market & Mission. We showed him two pistols, and said to him, "If you attempt to run, we will shoot you." We put him down cellar there. When Endicott went home, we placed a guard over him. Endicott came back and said, "This won't do, I am a city official,44 and have taken the oath to support the government." This was in his own building. Rube Maloney, who was also a member of the Committee said ... "I will put him in my house." So we walked him up there to his house, to keep him clear of the habeas corpus. About 12 o'clock down came Maloney, and said he could not keep him any longer .... We sent a guard and took him to some other place, and he was shifted round to keep him away from the Sheriff.
41 Herald, 1851, July 9 33; 10 34; Alta, July 9 38; 10 93.
42 Papers, 214.
43 Bluxome, MS Statement, 11-12. The committee in charge of Stuart was given a formal vote of thanks, July 10 (Papers, 254).
44 Endicott was an alderman (Annals, 326). He was not a Vigilante.
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Vigilance Committee of 1851
The method was entirely successful. Hays was allowed to inspect headquarters, but he found no Stuart in the guardroom. He went into court empty-handed to report that he had searched the city in vain, and had even followed a carriage out as far as the Mission in the hope of securing the missing man. This ended all active attempts to effect a rescue. Broderick and others held a meeting on July 9 or 10 for the purpose of organizing a com- pany to sustain the civil authorities and to prevent the infliction of punishment upon any citizen without due process of law, but it did not result in any noticeable public movement.43
Within a few days the city attorney had cause to feel that he was treacherously requited for the efforts he had made. The publication of Stuart's confession created the impression that Pixley undertook his defense in Sacramento in the face of posi- tive evidence of guilt, and permitted perjured testimony to be presented. Stuart also claimed that the lawyer had appropriated the whole of a sum of $730, confided to him for safe-keeping, of which only $230 was due for professional services. He put in the hands of the Committee a statement of this alleged account, and an order for the balance of $500. Pixley printed in the San Francisco papers a communication in which he most indig- nantly denied the charge that he was aware of his client's guilt, or had eonnived at perjury; and as for the $500, he explained that he had kept it as a retaining fee in expectation of continuing the defense at Marysville. The letter is printed in full in the Papers as a footnote to Stuart's confession.46
Some of the members of the Committee entertained serious misgivings over their evasion of the time-honored provisions of the writ of habeas corpus, 47 and the fact that the Alta California
45 Reported in California Courier, 1851, July 11 36. See also Popular Tribunals, I, 320.
46 Papers, 230-231, 242, 293.
47 " We thought it a terrible thing to deny the writ of habeas corpus" ( Farwell, MS Statement, 9).
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James Stuart, Outlaw
had advised them to obey it48 may have increased their uneasiness. Nevertheless, the precedent established in Stuart's case was followed a few days later when another prisoner was retained in defiance of a writ.49 The question was considered so impor- tant, however, that a subcommittee was appointed to "examine the question of the use and abuse of the writ of habeas corpus and report the same to this Committee with its opinion of the degree of respect which shall be accorded by the Vigilance Com- mittee to that writ."50 Dr. A. B. Stout, W. L. Bromley, and C. H. Brinley were charged with this duty, and they soon sub- mitted a paper that was an interesting exposition of the Vigi- lante point of view.51 They traced the origin of the writ of habeas corpus and acknowledged its great value when legiti- mately employed; but they asserted it became a menace to society when it was used to promote the escape of the guilty, and they concluded that the Committee of Vigilance was justified in refus- ing obedience to writs which sought to remove prisoners before their cases had been investigated. They said :
It is against the abuse of the Habeas Corpus that this people are called to raise their voice. And if the Vigilance Committee be the people, it is through the former that the latter may obtain justice and freedom from the ills which oppress and ruin our community.
As this report was not presented until August 2, the chrono- logical narrative is somewhat dislocated by its introduction here. Yet it was so directly an outgrowth of the evasion in the case of Stuart that it should be closely related to that circumstance. The members of the Committee knew beyond peradventure that
48 Alta, 1851, July 9 3%.
49 See case of LeBras (Papers, 281). Writs were also evaded in the cases of Arentrue, and of W. H. Hays (ibid., 414, 411), and subterfuge was employed when Bluxome was summoned to produce his records in court (ibid., 731).
50 Papers, 357. At the same time the General Committee laid ou the table a motion giving the sergeant-at-arms and the chief of police dis- cretionary powers to admit civil officers to headquarters.
51 Papers, 404-407.
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delivery of their prisoner to the courts would result in his escape from punishment, and that defiance of the writ was the only way in which they could retain him, but with unconscious incon- sistency they found it necessary to appoint a formal committee to consider the infraction of a minor constitutional privilege, while they contemplated without trepidation the far graver responsibility of inflicting the penalty of death !
That penalty for Stuart became more and more certain. Meetings of the General Committee were held on July 9 and 10, when reports were submitted touching the case, but no definite action was taken. About half past nine o'clock on the morning of Friday, July 11, San Francisco heard again the measured tapping on the bell of the Monumental Engine Company, and watched groups of well-known citizens hurrying, in open day, towards the headquarters of the Committee of Vigilance.52 A large majority of the entire membership assembled at that sum- mons, and listened for three hours to the reading of Stuart's confession and the evidence of witnesses. Then for some time they debated the punishment, while the prisoner in an adjoining room complained that the slow trial was "damned tiresome," yawned indolently, and solaced himself with a quid of tobacco. The record of this long session is brevity itself. It reads :53
MINUTES OF GENERAL MEETING JULY 11, 1851
Mr. Selim Woodworth in Chair
On Motion
Resolved-That Evidence in case Stuart be read.
Questions by Dr. Stout and Mr. Dows54
Has the prisoner performed his contract or not? No Unanimously-
Has the prisoner been guilty of crimes rendering him liable to the pun- ishment of death-Yes-unanimously-
52 Full accounts of the trial and execution were given in the Alta and the Herald, July 12 to 14.
53 Papers, 263-264.
54 Probably James Dows. John Dows was also a member, but his name appears nowhere in the minutes of the Committee.
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James Stuart, Outlaw
On Motion
Resolved That Prisoner Stuart be hung-unanimously carried-
Resolved that a Clergyman be sent for to remain with Prisoner until he is hung ---
Resolved That Prisoner be hung at 2 o'clock
Resolved That Ex Com make necessary arrangements
Resolved That no person be allowed to leave the room
Resolved That Prisoner receive his sentence
Resolved That Col Stevenson inform the populace that at 2 o'clock the prisoner Stuart will be hung --
The Chair announced that the Clergyman was now in the room with prisoner On Motion
Resolved That a Committee be appointed to draft a form of the testi- mony to be published in the papers of tomorrow morning On Motion
Resolved That the Com take a recess of half an hour
These minutes are in the handwriting of Secretary Bluxome, although he did not sign the page as usual. The allusion to the contract is the only direct reference ever made to the document which proposed to deliver Stuart to the authorities of Yuba County if he made a full confession, although at one time Stephen Payran favored sending him to Marysville in order to secure Berdue's release.55 Nowhere is there a discussion of the force of the agreement, nor any explanation of the decision that its provisions had not been met satisfactorily. The promise of im- munity is not mentioned in the recollections of any of the Vigi- lantes; Bancroft did not speak of it; and no charge of treachery has been laid upon the Committee, even by the men who most opposed it. The minutes show that the matter of the contract was considered and decided by a unanimous vote. With the meager facts at our command it is futile to attempt to pass judg- ment on the point of honor, or to decide whether the failure to acknowledge the murder of Moore placed the murderer beyond the pale of clemency.
The conviet received his sentence composedly. He was then allowed an interval for the ministrations of the Reverend Mr.
55 Papers, 224-225.
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Vigilance Committee of 1851
Mines, who found him a more hopeful penitent than was his predecessor, Jenkins. In his youth Stuart had been a communi- cant of the Church of England, and in the last moments of his life he responded to the appeals made to his better instincts, acknowledged the justice of his sentence, and received the abso- lution of the Church.56
During the two hours consumed in these preparations "the four hundred members in the Committee Room sat like statues on their seats-not a word was uttered, not a sound was heard to break the solemn stillness."57 It was an awesome death watch, and as the silent moments slipped away each man who had affirmed the verdict must have felt a growing sense of personal responsibility for the approaching execution. In accordance with the precedent set on a previous occasion, Colonel Stevenson was appointed to refer the sentence to the approval of the populace. The crowd outside was large, but patient, and heard with attention an account of the trial, a resume of the confession, and a report of the sentence. Then the question was put to the citizens : Would they sustain the action of the Committee ? And the vote of endorsement was "almost unanimous."58
About three o'clock a stream of silent men began to emerge from the headquarters of the Committee. In the street they formed into platoons, ten abreast, and with Stuart in the center swung eastward toward the water front. The condemned man "marched as erect and with as firm a tread as any innocent man and no one could see in his actions any indications of agita- tion. "39 When the ranks reached Market Street wharf they parted to the right and left, and gave passage to the bodyguard, then closed again, locked arms, and ranged themselves into a
56 See Mr. Mines' letter on the subject, Papers, 308-312.
57 Herald, 1851, July 14 %.
58 Herald, 1851, July 14 2%.
59 James Dows (MS Statement, 4). Stuart's composure was especially noted in the Sunday Dispatch, 1851, July 13.
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James Stuart, Outlaw
solid barrier.60 A derrick upon the pier had been selected for the place of execution, and there James Stuart, with unshrouded face and clasped hands, received the bitter punishment of his years of crime, while the multitude stood uncovered below him, hushed and motionless, and irresistibly moved by the fearless composure with which the outlaw met his doom.
When the coroner was allowed to take possession of the body61 he observed the formalities of his office, and impaneled a jury which promptly found:62 "That the deceased came to his death by strangulation by hanging at the hands of a body of men styling themselves the Vigilance Committee of San Francisco."
In its deliberate and open defiance of the law the execution of Stuart far exceeded the hasty action in the case of Jenkins. The constituted authorities were in duty bound to take public cognizance of such an occurrence, and the mayor, Charles J. Brenham, immediately published an open letter addressed to the citizens of San Francisco, in which he pointed out the insur- rectionary tendencies of the Committee of Vigilance and called upon the people to withdraw from its ranks and assist the authorities in supporting the laws.63
60 Smiley said that while there was no regular military organization in the Committee of '51 as there was in the Committee of '56, military formation was adopted at the execution of Stuart. He remembered the company as about 380 men, and said he commanded the escorting squad, and stood within twenty feet of the scaffold (MS Statement, 5). A poor cut of the scene is reproduced in the Annals, 580.
61 Herald, 1851, July 14 %. Smiley said that while Stuart was dying "Ned Gallagher came along, stopped at my platoon with arms locked and said, 'I demand permission to pass.' Middleton said, 'Who are you?' He said, 'By God, Middleton, you know I am a coroner!' 'By God,' was the answer, 'you don't get through till that fellow's a fit subject for your administration' (MS Statement, 4-5). There was a report that life was not absolutely extinct when Stuart was cut down, although all efforts failed to revive him ( Alta, 1851, July 13 24; Herald, 1851, July 14 2/3 ; Ryckman, MS Statement, 16). J. W. Palmer wrote: "The first man hung by the San Francisco Vigilance Committee was dead before he was swung up, and the second ... was alive after he was cut down" (The New and the Old, 1859, p. 73).
62 Herald, 1851, July 14 %.
63 See infra, p. 463. Sections of the act covering the suppression of riots followed the mayor's letter, in the Alta, July 13-15.
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Vigilance Committee of 1851
Thus Mayor Brenham discharged his duty, but Alexander Campbell, judge of the Court of Sessions, was made of sterner stuff. The assurances made in his letter to Sam Brannan had been no idle boast. In accordance with his determination to expedite justice he had impaneled a grand jury early in July, and that body immediately showed itself zealous in the perform- anee of its duties. Calling this jury into court on the morning of the twelfth, Judge Campbell brought to its attention the event of the previous day. Ile deelared that the people must decide without delay whether or not they were willing to throw away all safeguards of society, to declare that law was inconsistent with liberty, and to place life and property at the merey of a secret organization. He denounced the execution as an inexeus- able outrage, aceused all who had abetted it of the erime of murder, and charged the jurymen that it was their sworn and solemn duty to bring the guilty to punishment.64
The Alta of July 13 stated that after the charge had been delivered Mr. C. L. Ross asked to be excused from further ser- vice, as he had friends belonging to the Vigilance Committee, and his feelings would not allow him to bring in a bill against any of them. The application was refused, Judge Campbell stating that his own position was similar, but that they were all sworn to perform their duty and no private feelings could be allowed to interfere with their oaths. Eight other members of the jury were in a position infinitely more difficult than that of Mr. Ross, being themselves members of the Committee, and thus under the "sworn and solemn duty" of bringing against themselves and their elosest associates indictments for the crime of murder.65 It is probable that Judge Campbell was unaware of the subtle humor of the situation, although two of the jury, J. D. Farwell and W. B. Peake, had signed the list of members published immediately after the execution of Jenkins.
64 See infra, p. 464.
65 See names of the jurymen, infra, p. 467.
273
James Stuart, Outlaw
In an editorial condemning Judge Campbell's attitude, the Herald pointed out the futility of any such attempt. It approved the hanging on the ground that the law, if properly executed, would have inflicted the same penalty long before, and con- eluded as follows :66
What moral wrong, then, has been committed? The law has been vio- lated, it is answered. Ay, the law; but the Sabbath was made for man, and not man for the Sabbath, and the citizen is not made for the law, but the law for the citizen; and whenever the law becomes an empty name, has not the citizen the right to supply its deficiency ?
The California Courier of the same date expressed similar sentiments, blamed the inefficiency of the public officials for the prevalence of crime, and asserted that it would do little good for the coroner to investigate the deaths of criminals executed by the people while he neglected to take note of the victims of cold-blooded murder.67
The grand jury took no steps to indiet the five or six hundred members of the Committee, but it alluded to Stuart's execution in its final report, and regretfully acknowledged that the deed was "unlawful." At the same time it deplored the situation in the District Court that had moved the Vigilantes to action, and urged the officials of the city to remedy the causes of complaint.68 Judge Parsons was so offended by the criticism of the District Court that he asked to have that portion of the report stricken from the records, but Judged Campbell overruled the motion.69
Following the precedent set by Mayor Brenham the governor of the state issued a proclamation that dealt with the dangers that attended the organization of Committees of Vigilance in various places. His arguments were much the same as those used by Brenham and Campbell, but he suggested that it would
66 Herald, 1851, July 14 21.
67 See infra, p. 465.
68 See infra, p. 466.
69 Herald, 1851, August 9 %; 11 %.
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Vigilance Committee of 1851
be quite legitimate to form protective associations if they would assist the officers of the law and the eivil authorities in deteeting and punishing erime.7º This message was not written until ten days after the execution of Stuart, and in the meantime the Committee of Vigilance of San Franeiseo greatly enlarged its sphere of activity. Stuart's confession provided the long-sought elue to the gang of criminals that had infested eentral California. The community at large gave unmistakable evidenee that the Committee eould depend upon the support of popular approval. The Vigilantes, therefore, resolved to search for the outlaws, one by one, and deal with them aeeording to their deserts.
To See infra, pp. 467-469.
CHAPTER XIII
ON THE TRAIL OF STUART'S COMPANIONS
Stuart had named about twenty-five participants in the robberies he described. By order of the General Committee his confession, accompanied by the evidence in his case, was sent to the papers on the day of the execution.1 It was published immediately, with the omission of some names which at the time the Committee wished to conceal. It was republished a week later, and the suppressed portions inserted in full, that the community at large might assist in the apprehension of the criminals.
The most important members of the gang were known to be Sam Whittaker, George Adams, Robert Mckenzie, James Burns (usually called Jimmy from Town), Joseph Turner, Richard Osman, Jim Briggs, John Edwards, and John Morris Morgan. T. Belcher Kay, late port warden, was a valuable confederate on account of his official knowledge; Kitchen, a boat- man, constantly served them when they were in need of trans- portation ; and Big Brummy, Dab the horse thief, Billy Hughes, Long Charley, Ryan, and others were useful members of the company. The two policemen, Meintire and MeCarty, were depended on to protect them from arrest, and to help in making
1 See Papers, 263 note 1. The following note prefaced the testimony in an extra edition of the Herald, July 11:
"Editor San Francisco Herald:
The accompanying documents in the case of Stephens, alias Stuart, alias Campbell, alias English Jim, alias Carlisle, alias Mason, are handed you by order of the Committee of Vigilance for publication, your doing so will much oblige them and disabuse the public mind touching the affair.
Respectfully,
THE EXECUTIVE COMMITTEE,
Per Order of Committee of Vigilance."
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Vigilance Committee of 1851
escapes, and a boarding house kept by Michael Hogan and his wife, Mary Ann, was a safe and favorite place of meeting. The popular term "criminal organization" was scarcely applicable to the loosely kuit band, but the Vigilantes realized that they had uncovered the trail of desperadoes who very seriously threat- ened the good order of society.
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