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 7
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16 Bryce, American Commonwealth, II, 282.
17 Shinn, Mining Camps, 4.
18 Shinn, Mining Camps, 2-3, 22-24. 125, 176. Reference to the New England town meeting and the settlers' associations of the West is made, however, in his Land Laws of Mining Districts, 50.
19 Royce, California, 281.
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The details of the miners' laws, interesting as they might be, need no long discussion here. It is only necessary to establish the fact that in circumstances where no exterior force could impose regulations, each little concourse of miners voluntarily imposed upon itself laws which determined the adjustment of claims in accordance with the will of the majority.20
It is very easy to concentrate attention upon the picturesque features of the miners' meeting : to visualize a firelit group of stalwart men, shut away from the world by a shadowy barrier of encircling forest, or to imagine the wild camp Sunday that was nevertheless a favorite day for the gatherings that decreed the laws for those roaring bravadoes of pick and pan. But neither the picturesque simplicity nor the mad disorder should obscure the significant fact that the camp-made laws were efficient. They met a temporary emergency, but they met it so well, with such stability of fundamental fairness, and such flexibility for local necessity, that for several years after the Federal control was asserted and the state organization was completed, the laws passed at those miners' meetings and at their successors of a gentler deeade were accepted as the law of the land, were finally incorporated in the eodes of California, and adopted in many other states.21 Again it must be borne in mind that while California was emerging from the chaos of the transition period, while a constitutional convention was at work and while successive legislatures were in session, the men of the Sierra mining camps still made their own mining laws with a
20 " No alcalde, no council, no justice of the peace, was ever forced upon a district by an outside power" (Shinn, Mining Camps, 177).
21 The miners of other districts followed California precedents, and developed some modifications and improvements which affected national legislation. See Beulalı Hershiser, "Influence of Nevada on the National Mining Legislation of 1866," Nevada Historical Society, Reports, 11I (1911-1912), 127-167; T. M. Marshall, "Miners' Laws of Colorado," American Historical Review, XXV (1920), 426-439; and his Early Records of Gilpin County, 1920.
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direct popular sovereignty that left a profound impression on the spirit and institutions of the commonwealth.22
The miner's relation to his claim was thus adjusted with marked success, and with comparatively little disorder, but as much cannot be said of the establishment of the relations between mạn and man. The newcomers in California, even those who hailed from older states, were doubtless familiar with the usual features of popular tribunals. The precedent that had been tolerated as a matter of necessity in pioneer settlements had been followed in many better organized localities when courts had failed to punish crime, or when the bitterness engendered by the slavery question had given rise to acts of offensive partisanship.23 Trials by lynch law had occurred in several overland parties during the long course of the westward journey, and it is not at all surprising that. as soon as emergencies arose in the mines, the impromptu organization of the camp meeting transformed itself without hesitation into a criminal court.
22 The miners' rights were not confirmed by Federal authority until Congress passed the general lode mining law of 1866 U. S. Statutes at Large, XIV, 251 ). The chairman of the Committee on Mines and Mining, urging the passage of the bill, said: "It will be readily seen how essential it is that this great system, established by the people in their primary capacities, and evidencing by the highest possible testimony the peculiar genius of the American people for founding empire and order, shall be preserved and affirmed. Popular sovereignty is here displayed in one of its grandest aspects, and simply invites ns not to destroy. but to put upon it the stamp of national power and unquestioned authority"' (Cong. Docs .. Ser. No. 1240, Doe. 105, p. 2). It is significant of the spirit in which Royce reviewed this period that he said of the California miners: "They resist strenuously any legislative interference with their local self-government in these matters. They insist absolutely upon the autonomy of the miners' district, as regards the land; and for years, against all legislative schemes at home, and all congressional propositions at Washington, they actually maintained this antonomy " (California. 316).
23 Cutler, Lunch-Law. 91 et seq. Most of Cutler's examples for this period were from the Liberator, and record outrages upon abolitionists and Negroes rather than cases of frontier justice. See also P. W. Black, "Lynch- ings in Iowa." Iowa Journal of History and Politics, X (1912). 151-254, and his " Attempted Lynchings in Iowa. " Annals of Iowa, ser. 3, XI (1914), 260-285.
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During the summer and early autumn of 1848 there was little need for severity of any kind as disorders were rare and some early observers reported a period of almost Arcadian honesty that lasted well into the more strennous days of '49.24 Baueroft recorded crimes in the region of San Francisco and San José, but found only two instances of outrages in 1848 that incurred the punishment of popular tribunals in the mining regions. Carson wrote that honesty was the ruling passion among the miners of '48 and recalled but one case of "high misdemeanor" in that year. Of later months he said :25
This honesty . .. was not to be found in the crowds that daily thickened around us in '49. Hordes of piek-pockets, robbers, thieves and swindlers were mixed with men who had come with honest intentions .... Murders, thefts, and heavy robberies soon became the order of the day .... Whipping on the bare back, cutting off ears, and hanging, soon became matters of as frequent occurrence as those of robbery, theft and murder.
These statements are in substantial accord with the experi- ences of a majority of the pioneers. The question of mining claims had been adjusted on a peaceful basis, but the camps now faced the more difficult problem of controlling without the cus- tomary aid of law a dangerous class of criminals.26 Every fairly
24 See report of Mason, Aug. 17, 1848 (Cong. Docs., Ser. No. 573, Doc. 17, p. 532) ; Baneroft, California, VI, 84; Brooks, Four Months, 67; Alonzo Delano, Life on the Plains and among the Diggings, ed. of 1857. p. 359; T. T. Johnson, California and Oregon, or Sights in the Gold Region, ed. 3, 1851, p. 146; James Neall, Jr., Statement, 4-5, MS in the Bancroft Library.
25 Carson, Early Recollections, 6, 11-12, 26. James Lynch, familiar with events in '48 and '49, thought that the first jury trial in the mines was at Murphy's Diggings in the spring of '49 (With Stevenson to California, 1896, p. 48 ).
26 " There was another branch of legislation soon called for to suppress a system of thieving that was fast spreading; but the code of the famous Judge Lynch was unanimously adopted, and under its oral provisions any person caught in 'flagrante delieto' was shot down without ceremony, or subjected to any other summary punishment the detector might prefer .... While disapproving of the modicum of punishment, and the manner of putting it in force, I must admit that some very stringent measures were necessary to keep in check the lawless and abandoned characters who flocked to the mines" (Kelly, Excursion to California, II, 24-25).
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successful miner collected gold dust in larger or smaller quan- tities which he was obliged to carry on his person or to leave about his tent, for there were no safes in the mines, and no bank- ing or express agents ready to receive and forward treasure to the cities. As these accumulations of gold dust were a constant temptation to theft and murder, it became a vital necessity to make robbery unprofitable, even in a country that lacked the restraining influenees of courts and jails. In the summer of 1848 Brooks said that every man guarded his gold dust with his own rifle,27 and the crimes of that season were doubtless avenged by the aggrieved party when detection was possible. As popula- tion increased united action became necessary. Then the miners almost universally adopted the eustom of improvising eourts for the immediate trial of suspected offenders, and it is important to realize that these trials were not a social retrogression towards anarehy, but an effort to protect society by elevating the pun- ishment of crime above the primitive and dangerous plane of personal vengeance.28
The many aneedotes of miners' trials given by Shinn, Hittell, and Bancroft coneur in describing the usual method as being the immediate trial of the suspect before an improvised eourt, with judge and jury, although sometimes the meeting as a whole voted on the verdiet and sentenee. Counsel were often assigned for prosecution and defense, evidenee was always taken at its faee valne, and no technieal evasions were allowed. The aecounts that have been preserved indieate a large percentage of eonvie- tions. No doubt aequittals made less impression on the observer, and it must be remembered that the presumption of innocence
27 Brooks, Four Months, 177, 183-184, 206.
28 E. A. Ross, in his Social Control, 1901, pp. 41-52, used the develop- ment of the mining camps in California as an illustration of the progress of community aetion. "There are offences," he wrote, "that exasperate the group as well as offences that arouse the ire of the individual. In this common wrath and common vengeance lies the germ of a social control of the person."
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was less than in ordinary courts, as arrest followed swiftly upon the discovery of crime, and many culprits were caught red- handed.29 Nevertheless conviction was dangerously easy, and some innocent men must have suffered cruel injustice. When guilt was once established it was considered imperative to rid the camp of the criminal, as there was no way of confining him pending a possible reformation. Immediate execution was the most effectual process of elimination and it was often employed. Sometimes a rough dignity solemnized such tragie occasions, but instances occurred of revolting ferocity and violence. If it was considered safe to give the guilty man another chance, he was punished, usually by whipping, and driven from camp with the warning that reappearance would mean death. Thirty-nine lashes on the bare back was a common sentence, but a hundred or even more, were not unknown.
Many of the Argonauts who participated in these trials always maintained the stern necessity for such prompt and severe penalties and pointed out the incontestable fact that in a country without penitentiaries whipping and execution were the only alternatives.30 Corporal punishment was not so repugnant to the standards of 1849 as it is to those of the present day. It had been rigorously employed everywhere upon the frontier, it was still legalized in some of the older states, and in others it had been abandoned but a short time.31 The pioneer journalist,
29 For incidents of acquittal, see Albert Lyman, Journal of a Toyage to California, 1852, pp. 121-122; Woods, Sixteen Months, 98.
30 General Riley attributed much of the lynching in 1849 to the lack of secure jails (Cong. Docs., Ser. No. 573, Doe. 17, p. 790).
31 Sherman cited the laws of Texas as a precedent for flogging a thief, and Mason recommended the penalty for very aggravated cases (Cong. Docs., Ser. No. 573, Doc. 17, pp. 403, 445). The severity of frontier pun- ishments was condemned by Howard, Introduction to Local Constitutional History, 416-423, and it was defended by Judge D. D. Banta, in "The Criminal Code of the Northwest Territory," Indiana Magazine of History, 1X (1913), 234-236. The following opinion was given by the Supreme Court of New Mexico: "In new countries, without jails ... a pressing necessity for the adoption of the punishment of whipping for the offense
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Bayard Taylor, heartily approved of the miners' methods. Shin defended them stoutly, and went so far as to say that "the miners' court was never wittingly ernel in its judgments, although it was liable to be swayed by prejudice or passion."32 Unfortunately, tales of cruelty cannot be denied. One of the most brutal seenes was the first lynching in the state, that of four Mexicans, at Dry Diggings (Placerville), which long there- after bore the name of Hangtown.33 Josiah Royce spoke for a large group when he condemned all such punishments as bar- barous, and in the end futile to reform the criminal.34
It is difficult to see, even in retrospect, how preventive and reformatory measures could have been adopted. Every camp faced dissolution at a moment's notice, and it could not suspend work to hew lumber, quarry stone, and ereet a secure jail. Moreover, it was an isolated nnit in its social existenee, unable to establish systematic cooperation with any other social unit. or to assist in devising a general policy for the preservation of order. In such an environment it was not to be expected that the young men of the mining region would develop a practical
of larceny exists. At some stage in the existence of almost every state and territory, they have resorted to this mode of punishment, and in no instanee has its infliction been held to be uuconstitutional ("Garcia vs. the Terri- tory," First New Mexico Reports, 415-419).
32 Bayard Taylor, Eldorado, 1850. I. 92; Shinn, Mining Camps, 179-180. See also William Taylor, California Life Illustrated, ed. of 1859, pp. 295- 296; D. A. Shaw, Eldorado, 1900, pp. 139-144.
33 The lyuching was in January, 1849. The Mexicans were first tried and whipped for robbery. then tried by a crowd of half-intoxicated miners on fresh charges of robbery and attempted murder. They endeavored to defend themselves in Spanish, but no interpreter was found, aud they were immediately hanged from the branches of a tree in the center of the eamp. See Buffum, Six Months, 83-85; Historical Souvenir of El Dorado County, 1883, pp. 148, 208; John Carr, Pioneer Days. 1891, p. 65; H. D. Jerrett, California's El Dorado, 1915, pp. 45-49; L. A. Norton, Life and Adventures, 1887. p. 293. Other instances of excessive punishment may be found in J. W. Harlan, California '46 to '88. 1888, p. 140. Anecdotes of trials extending over many years, are collected in Popular Tribunals, I, 142-178; Hittell, California, 272-309.
34 See Royce, California, pp. 335-340.
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penology that should anticipate the advanced position of the present day, or even coincide with the most progressive standards of their own generation. It must be remembered also that the suppression of crime was their only aim, and their heavy-handed chastisement made life and property relatively safe, in spite of the presence in their midst of many men of the most desperate recklessness.
While the reader must turn to the pages of other authors for detailed pictures of the miners' trials, still a general grasp of local conditions is essential at this point, in order to understand that the widespread appeal to popular tribunals in 1849 was not due to a defianee of authorized government on the part of the populace, but to an utter lack of any system of control in the mining regions. Indeed, Colonel Mason acknowledged with regret that he was unable to initiate any measures for the relief of the emergency. On November 24, 1848, he wrote to Wash- ington :35
I cannot too strongly recommend a territorial government to be organ- ized in California at the earliest moment possible, if it has not already been done. There is no security here for life or property; and, unless a civil government is speedily organized, anarehy and confusion will arise, and murder, robbery, and all sorts of crime will be committed with impunity in the heterogeneons and mixed community that now fills California.
Under such circumstances he was compelled to countenance the popular efforts to suppress crime, and when in December the
35 Cong. Docs., Ser. No. 573, Doe. 17, p. 648. When the military rule terminated in Santa Barbara it was necessary to release a conviet, as there were no civil anthorities and no jail (Archives, "Unbound Does.," 10, 22, 25). Captain J. L. Folsom, assistant quartermaster at San Francisco, wrote to Major General Jessup, Sept. 18, 1848: "I know of no section of the United States Territories which more imperatively requires strong garrisons for the preservation of order. Withont them I believe the whole country will sink into anarchy and the worst possible confusion" (New York Journal of Commerce. 1848, Dee. 27, clipping in Francis Lieber's California Serap-Book, p. 7. a collection of elippings in the Baneroft Library). See also another letter from Folsom, in Robinson, California and Its Gold Regions, Appendix, pp. 134-137.
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alcalde of San José hanged three convicted highwaymen with- out waiting for official approval of the sentence, the Governor wrote:36
I know, in this case, that necessity and circumstances, and the violent outrages of late so frequently committed upon society, compelled the good citizens of the pueblo to rise and promptly make a public example of those robbers, for the sake of their own safety and that of society in general. The country affording no means-jails or prisons-by which the persons of these lawless men conld have been secured and society protected, it is not much to be wondered that, after the mauy atrocities so recently committed upon unoffending citizens, the strict bounds of legal proceedings should have been a little overstepped.
About the same time seven or more members of the Reed family were murdered at San Miguel, and three of the assailants were captured and taken to Santa Barbara for trial. Mason at once instructed the alcalde of that place to proceed to immediate trial and exeention, and in reporting the two occurrences to Washington said :37
You are perfectly aware that no competent civil courts exist in this country, and that strictly speaking there is no legal power to execute the sentence of death; but the necessity of protecting their lives and property against the many lawless men at large in this country, compels the good citizens to take the law into their own hands. I shall not disapprove of the course that has been taken in this instance, and shall only endeavor to restrain the people, so far as to insure to every man charged with a capital crime an open and fair trial by a jury of his countrymen.
Ilittell felt that the resort to popular tribunals received an important impulse from the attitude Colonel Mason felt obliged to assume. "Under ordinary circumstances," he said, "nothing would have been more distasteful to Mason than this species of
36 Cong. Docs., Ser. No. 573, Doc. 17, p. 691; alcalde's report of the case, Archives. "Unbound Does, " 34, 340. See also Popular Tribunals, I, 68.
37 Cong. Docs., Ser. No. 573, Doc. 17, p. 653. See also Colton, Three Fears, 392; Harlan, California '46 to '48, pp. 134-136; H. I. Dally, Nar- rative. 1878, pp. 53-63, MS in the Bancroft Library. This was doubtless the crime mentioned by Senator Douglas as an awful result of refusing California the protection of adequate law (Cong. Globe., 30 Cong., 2 Sess., Appendix, pp. 275-276).
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lawless justice; but, in the condition of affairs as they were, he refused to interfere or stay the course of the popular vengeance that alone held lawlessness in some sort of check."39
As the population increased the miners' meetings became more formal in their procedure. The winter of 1848 to 1849 drove most men from the mountains, but a few Americans remained at the present site of Sonora, and a large party of Mexicans wintered at the same camp. It became necessary there to adopt some system more effective than impromptu meetings, and before the close of the year R. S. Ham was acting as alcalde.39 Shinn stated that Ham was elected at a meeting of the American miners of Jamestown, but H. O. Lang said that he assumed the office at Sonora without even a request from the inhabitants and was summarily deposed for James Frazier (Frasier or Fraser) when a case arose that needed greater ability. My father, Edwards C. Williams, went to Jamestown in the autumn of 1848, soon after he was mustered out of service with Stevenson's Regiment. He had not been there long when some excitement led the miners to desire an alcalde, and he was ehosen for the position in compliment to a spectacular feat of horsemanship which he had performed when he arrived in camp. He resigned in two weeks, desiring to devote himself to business, but he always said that in the interval he wielded the power of life and death, although the only sentence he pronounced was a whipping im- posed on a thieving Mexican. He remembered the administration of Alcalde Frazier, but the notes made of his recollections do not record which preceded the other in office.
When the cessation of the winter storms permitted the gen- eral resumption of mining, other camps followed the example set at Sonora, and elected alcaldes to administer the camp laws.
38 Hittell, California, II, 674.
39 See Shinn, Mining Camps, 127; History of Tuolumne County [by H. O. Lang], 1882, p. 13; Bancroft, California, VI, 469; Hittell, California, III, 224.
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From the specimens of later rules that have been preserved it seems probable that the miners' laws adopted after the early months of 1849 made little distinction between the civil and the criminal departments of eamp justice, and that the alcaldes not only supervised the allotment of mining claims but preserved order and presided at trials," although there were still many occasions when impromptu courts, with hastily chosen judges, conducted trials and imposed sentences.
These camp alcaldes were entirely independent of the super- vision which the military-civil governor still exercised over the coast towns, and their election may be considered as an effort to provide the miners with a working substitute for the maehin- ery of organized government. Their recommendation to office usually consisted in some accent of personality that caught the attention of the men about them ; they derived their title from a Spanish inheritance, and their idea of law from their own inner consciousness ; they were responsible to no central power, they were subordinated to no court of appeal, they were bound by no statute of legislation. Often they were well edneated, often illiterate: sometimes they were sturdily honest, sometimes shamelessly venal: many drank and cursed with unchastened exuberance, many were thoroughly decent in speech and habits ; some met untimely ends in drinking brawls and pistol duels, some spent long and honorable lives in the service of their adopted state. They were as far removed from the paternal dignity of the Spanish alcalde as they were from the well defined status of the American sheriff. Yet, because they perpetuated the title of the Mexican magistrate, there is a tendency to attach to the miners' alcalde a sort of retroactive significance, and to define in the terms of his arbitrary despotism the functions of the alcalde of the pre-American regime. The exact position of the latter was confused by conflicting statutes and shifting administrations,
40 See the code of Jacksonville, January, 1850, Thomas Donaldson, The Public Domain, 1881, pp. 317-318.
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but his authority reached back through centuries of Spanish law and custom; his successor of the transition period was very different from the Spanish model, but he still derived authority from well established usage; but the earliest alcaldes of the mines were detached from constitutions and precedents of any compelling force. As Buchanan said of the ultimate foundation of all order in California, the authority of the miners' alcaldes rested solely on the consent of the governed, who recognized the necessity of some form of social control, and gave voluntary obedience to these extraordinary magistrates.
Legal methods of the time may be illustrated as follows. In December, 1848, C. E. Pickett, a merchant at Sutter's Fort, killed a man in self-defense. Sam Brannan, who had a store at the same place, insisted that Pickett should be tried for mur- der. When the first and second alcaldes and the sheriff resigned to avoid conducting the prosecution, Brannan called a mass meet- ing to elect new officers. Everyone who was suggested for alcalde declined and finally Brannan, himself, was chosen. The nom- ination for a prosecuting attorney likewise went through the circuit of the meeting, and was also finally accepted by Brannan. The prisoner then procured counsel, the sheriff pro tem. was ordered to bring drinks and cigars for all concerned, and argu- ments lasted far into the night, while Captain Sutter, one of the jury, wrapped in a Mexican serape, leaned against the wall fast asleep. Brannan, as prosecuting attorney, summed up the evidence against the accused in spite of the fact that Brannan, as alcalde, was judge at the trial. The jury disagreed, and the sheriff was charged to hold the prisoner, but, as he had neither jail nor irons, it was decided to admit Pickett to bail, which was promptly furnished by the jurymen. "Thus ended the first criminal trial ever had at Sutter's Fort. At a subsequent and soberer trial Pickett was acquitted. "41
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